RIGHT TO DISAGREE: LAWMAKERS FACED WITH DECISION OVER FREE-SPEECH ISSUE
- An opposition lawmaker has spearheaded a legislative initiative to scrap a controversial penal code article seen as restricting free speech. Zaruhi Postanjyan, of the Heritage party, proposed a draft law to make changes in the country’s Criminal Code so as to abolish its Article 301 that foresees prosecution for “public calls for a violent overthrow of the constitutional order.”
“Article 301 is against the rights guaranteed by Article 27 of the Armenian Constitution and Article 10 of the European Convention on Human Rights and Fundamental Freedoms,” Postanjyan says. “Under this article prosecution of any person is a gross violation of his or her right to free expression.”
Article 3 of Armenia’s Constitution defines: “The state shall ensure the protection of fundamental human and civil rights in conformity with the principles and norms of the international law.” According to Article 27 of the Constitution, “Everyone shall have the right to freely express their opinion.” These articles are there to protect freedom of speech and expression, which involves the risk of damaging the interests of other persons.
Postanjyan says that people’s opinions, ideas and reproduction of thoughts can be undesirable for some people or some state structures. But the opinions shared by a majority or a group of people, as a rule, do not have the risk of intervention from the state.
“Tolerance towards personal opinions is an important component of a democratic political system,” she says.
Ex-ombudsperson Larisa Alaverdyan, who also represents Heritage, explains that this article not only contains legal vagueness, but also legal danger.
“This article deprives every person of the right to express his or her personal opinion. And the matter here solely concerns expressing opinions. There is Speakers Corner in England where people can express their thoughts freely, deliver speeches containing extremely passionate calls to the public. But it does not provide the grounds for criminal cases to be instituted against them later,” she says.
Armen Ashotyan, a member of the parliamentary faction of the Republican Party of Armenia, thinks Postanjyan’s legislative initiative has a political context. It is political not by its contents, but in its form. He thinks that apparent grounds are provided that are the result of cunning legislative wordings. Ashotyan thinks that it is yet another publicity gimmick employed by Heritage.
“I regret that the author of the draft law forgot to read, remember and quote the articles that allow the presence of Article 301 in the Criminal Code. This is first of all Article 43 [of the Constitution]: “The fundamental human and civil rights and freedoms [set forth in the articles of the Constitution] may be restricted only by the law if it is necessary in a democratic society in the interests of national security, public order,” Ashotyan says.
He also invokes Article 2 which allows the presence of Article 301 with its current contents in the Criminal Code. In particular, this article says: “…The usurpation of power by any organization or individual constitutes a crime.”
Ashotyan also cites Article 47 of the Armenian Constitution: “Everyone shall be obliged to honor the Constitution and laws, to respect the rights, freedoms and dignity of others. The exercise of the rights and freedoms with the purpose of overthrow of the constitutional order, incitement to national, racial and religious hatred, propaganda of violence or warfare shall be prohibited.”
Nevertheless, many think that Article 301 is a tool in the hands of the authorities to muffle the voice of political opposition. Postanjyan says that it allows prosecution of any person on the basis of a rather loose interpretation of his or her plain but passionate speech.
“This article has a connection with pre-election processes. The prosecution of Zhirayr Sefilyan and Vardan Malkhasyan began a year ago exactly on charges envisaged by Article 301, and let’s not forget that 2006 was also a pre-election year,” Postanjyan says. “The article envisages punishment ranging from fines to imprisonment. But for some reason imprisonment and not some other milder punishment was chosen in the case of the nation’s patriots [Sefilyan and Malkhasyan are prominent Karabakh war veterans and Sefilyan is also a hero].”
MP Victor Dallakyan says that he was the first lawmaker who was brought to the prosecutor’s office and kept in custody for eight hours. He says that but for the head of the OSCE office, Vladimir Pryakhin, who visited the prosecutor’s office where he, Dallakyan, was being interrogated, he would have probably been taken to some other place.
“During one of the public rallies in March 2004, I said that people were power and if power belongs to people they can in every way get rid of the authorities. And this is a constitutional way, as it is written: power belongs to the people,” Dallakyan says. “I didn’t say go and do this or that, in other words such a speech was an occasion for prosecution against me to start.”
Alaverdyan thinks that Article 301 can serve as a basis for large-scale repression in the hands of the authorities.
“It is very similar to former soviet articles where free speech, freedom of expression, an arousing opinion served as a basis for persecution. The article does not specify as to in what cases and what degree of action is called a violent overthrow of the country’s order,” she says.
Dallakyan is convinced that the article can be used to “fabricate a case” against any opposition politicians, any lawmaker. It can and in fact has already become an instrument for punishing the opposition.
“Should you sneeze loudly, they can say it is a call for an overthrow of the constitutional order,” he jokes.
Ashotyan disagrees with the opinion that the authorities are trying to silence one politician or another with the aid of Article 301.
“There have been many other opposition politicians who have shown much more activity, have been much more critical, have made acrimonious speeches, but this article has not been applied to them,” he says.
Postanjyan thinks that the article lacks the boundary that would specify the cases where a person’s statement or speech can be viewed as punishable under Article 301.
“It does not clearly define as to what ‘public calls for a violent usurpation of state power’ means. Its vagueness and uncertainty leaves no room for people to figure out under what circumstances and in what cases it can be applied,” she says. “It is indefinite as to what “a call” means and as to the criteria that would make it possible to draw a clear distinction between a call and an opinion.”
Nevertheless, the author of the draft law has few expectations from the parliament with such a distribution of political forces.
“I will use all means to get the anti-constitutional provision abolished. I will apply to the Constitutional Court, the Ombudsman, international human rights organizations. Sooner or later it will be recognized as void. And those who will vote against this draft law will bear responsibility tomorrow,” Postanjyan says.
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