The advocates’ views on the Draft of the RA Criminal Code

The RA Chamber of Advocates in cooperation with the American Bar Association representative office in Armenia has initiated a series of discussions in Yerevan and cities throughout Armenia on the Draft of the RA Criminal Code. The aim of these meetings is to inform the advocates about the anticipated amendments and also to receive their suggestions and opinions. Prior to each Friday Club discussion, announcements are posted on the official website of the RA Chamber of Advocates:

The following is a list of recent Friday Club discussions:
- 19.11.2015 in Lori marz (region) (6th meeting)
- 16.10.2015 in city Yeghegnadzor, Vayots Dzor marz (7th meeting)
- 17.10.2015 in city Kapan, Syunik marz (8th meeting)
- 12.10.2015 in Yerevan (9th meeting)

The participants of Friday Club expressed their opinions concerning the following issues:

1. According to the current Criminal Code, the minimum age for criminal liability is 16. Related to certain grave crimes, the age of criminal liability is 14. Under the Draft, Paragraph 1 of Article 20 , the general age for criminal liability has been lowered to 14. Many advocates believe that the current law regarding this matter is more appropriate, as generally those that are 14 years of age are not able to fully understand the meaning of their actions. The new age foreseen in the Draft is a regressive step and should be removed.

2. The articles related to criminal punishment were also discussed, with detailed talk related to the new types of penalties foreseen in the Draft. 2.1. Article 678 of the Draft defines the deportation of a foreign citizen or a person without citizenship as a potential criminal penalty. However, the draft law does not clearly define to which country such a person would be deported. Moreover, there would be a need to also define the entry ban into Armenia. It is also necessary to clarify the cases when it is not allowed to deport a foreign citizen or a person without citizenship, such as in a case where the person would face certain dangers in his country or in the country where he is deported. Friday Club participants noted the importance of this set of laws, one reason being that Armenia will be exempt from expenses of keeping such a prisoner. Moreover, it will help in the prevention of new crimes.

Melanya Arustamyan on the Draft of the RA New CC 
Yeghegnadzor, 16.10.2015
Melanya Arustamyan on the Draft of the RA New CC. Yeghegnadzor, 16.10.2015

2.2. Article 64 of the Draft defines community service as a type of penalty, however, without the defendant’s consent its application contradicts the last provision of Article 32 of the RA Constitution, which states that the forced labor shall be prohibited.
2.3. Article 66 of the Draft prescribes the restriction on certain rights an individual may have such as the right to be elected to public office, establish or join NGOs or political organizations, organize strikes, assembly, rallies or join them.

The participants of the Friday Club noted that the restriction of such rights are regressive measures with respect to the exercise of human rights and fundamental freedoms, which may be politicized and used as retribution for a person’s political views.
2.4 Article 67 of the Draft defines the deprivation of parental rights as a type of penalty when an individual has abused this right. This may include preventing a person who has committed a crime from living with his child, communicating with the latter, receiving information about his child, participating in rearing the child, having a say related to the child’s education and acting as his legal representative.
The participants noted that in some cases the implementation of this penalty may be impossible. For instance, if the child lives in the house belonging to this convicted parent, it may illegally deprive this individual the right to dispose and use of his property.

As to the potential prevention of “receiving information about his child”, the participants agreed this is beyond the bounds of the law, as the parent may simply try to find out from someone whether his child is attending school or not.

3. A new type of crime, the abuse of status by a defense attorney, envisaged by Article 471 of the Draft was also discussed. It states that a defense attorney may be subject to criminal liability for the unlawful use of information received from the client, by consulting and providing aid to the adverse party without the client’s consent, or committing an act in favor of the latter, which has inflicted damage to the lawful interests or rights of that person.

The advocates discuss the Draft of the New RA CC 
The advocates discuss the Draft of the New RA CC. Vanadzor,19.11.2015

The participants of the Friday Club believe that the necessity of this set of new laws is not substantiated. The given issues are already regulated by the Code of Ethics of the Chamber and should not be criminalized, as this which may seriously effect an advocate’s independence. Furthermore, there was no justification provided for the reason the need for this law arose in the first place. There are no statistics indicating an increase in such cases. Moreover, the equality of arms principle is also violated as there is no corresponding law for prosecutors.
4. The section titled “Criminal Liability of Legal Entities” was also discussed.
Article 141 of the Draft Criminal Code provides that a legal entity may be subject to a fine, temporary ban on the right to carry out certain activities, or liquidation.
Imposing criminal liability on legal entities may have negative impact on the business environment and thus, the economy. Armenia already has the institution of administrative liability. For instance, in cases involving tax violations, in addition to paying the unpaid tax, a penalty and fine is also imposed on the company. It would be better to add to this clause other types of penalty foreseen by the Draft: suspension of the activities, termination, or liquidation. However, in cases of non-grave and medium gravity crimes, liquidation of the company should not be allowed. Thus, by defining criminal liability, the application of both administrative and criminal tools are foreseen for the same offense: in one case it is called an offense, in the other case an economic crime.

5. The new definition of guilt prescribed by Article 24 of the Draft was also discussed. Article 24 defines criminal activity in the following way: the forbidden action is considered to be committed by guilt if the person who committed it knows/understands the illegality of his actions or should have known/understood it. Knowing/understanding the illegality of one’s actions means to know that the action contradicts the law or other enforceable legal acts.

Anna Margaryan talks about the Draft of CC. Yerevan, 19.11.2015
Anna Margaryan talks about the Draft of CC. Yerevan, 19.11.2015

The participants of the Friday Club mentioned a problem with this definition of criminal activity as it would be discretionary to consider the knowing/understanding of the illegality of one’s action. The participants stated that they prefer the existing law and expressed their wish to discuss the Draft with Anna Margaryan because the latter as a co-author of the Draft may represent their arguments related to this new clause.

These discussions are ongoing and the results will be presented to the working group responsible for drafting the Criminal Code.