Criminal Law Measurements for the Protection of Forb

Introduction

In the Republic of Armenia, the  freedom of thought, conscience and religion, which was enshrined in the 1995 Constitution and, in terms of content, reproduced in the 2005 and 2015 Constitution amendments, is widely protected. It may be restricted for the purpose of protecting state security, public order, health and morality or the fundamental rights and freedoms of others.

The freedom of thought, conscience and religion, which includes the freedom to change one's religion or belief, and the freedom to express it alone or together with others, in public or in private, through preaching, ceremonies, worship or rituals, is defined in Article 9 of the Convention on Protection of Human Rights and Fundamental Freedoms.

Summarizing the above-written, it can be stated that the freedom of thought, conscience and religion is enshrined in the fundamental documents on protecting human rights and by domestic legislation, creating a wide opportunity to ensure the protection (including criminal-law) of these rights.

Rights Guaranteed By The RA Constitution

The following articles are the constitutional basis for the criminal protection of a person:

Article 17. The State and Religious Organizations

  1. The freedom of activities of religious organizations shall be guaranteed in the Republic of Armenia.
  2. Religious organizations shall be separate from the State.

Article 29. Prohibition of Discrimination

Discrimination based on sex, race, skin color, ethnic or social origin, genetic features, language, religion, world view, political or other views, belonging to a national minority, property status, birth, disability, age, or other personal or social circumstances shall be prohibited.

Article 41. Freedom of Thought, Conscience and Religion

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to change religion or belief and, either alone or in community with others and in public or in private, the freedom to manifest them in preaching, church ceremonies, other rites of worship or in other forms.
  2. The expression of freedom of thought, conscience and religion may be restricted only by law for the purpose of state security, protecting public order, health and morals or the basic rights and freedoms of others.
  3. Every citizen shall have the right to replace military service with alternative service, as prescribed by law, if it contradicts the religious faith or belief thereof.
  4. Religious organizations shall enjoy legal equality and shall be vested with autonomy. The procedure for the establishment and operation of religious organizations shall be prescribed by law.

Article 56. Right to Preserve National and Ethnic Identity

  1. Everyone shall have the right to preserve his or her national and ethnic identity.
  2. Persons belonging to national minorities shall have the right to preserve and develop their traditions, religion, language and culture.
  3. Exercise of the rights prescribed in this Article shall be regulated by law.

Article 77. Prohibition of Abuse of Basic Rights and Freedoms

The use of basic rights and freedoms for the purpose of violent overthrow of the constitutional order, incitement of national, racial or religious hatred or propaganda of violence or war shall be prohibited.

Protection Measures Defined By The RA Criminal Code

Breach of legal equality of the human being and the citizen on the grounds of religion, as well as հindrance to the right to exercise freedom of conscience or religion, are considered to be crimes against the constitutional human rights and freedoms of citizens.

Article 143. Breach of legal equality of the human being and the citizen.

  1. Direct or indirect breach of the human rights and freedoms of citizens, for reasons of the ones sex, race, color, ethnic or social origin, genetic characteristics, language, religion, ideology, political or other views, affiliation to national minority, property status, origin, disability, age or other personal or social ground, which damaged the human beings and citizens rights and legal interests, is punished with a fine in the amount of 200 to 400 minimal salaries, or with imprisonment for up to 2 years.
  2. The same action committed by abusing official position, is punished with a fine in the amount of 300 to 500 minimal salaries, or or with imprisonment for up to 3 years with deprivation of the right to hold certain posts or practice certain activities up to 3 years.

The act defined by Article 143 of the RA Criminal Code may be present in the case when, for example, a person is deprived or not granted any right based on his/her religious views.

According to the data of the judicial information system datalex.am, since 2008, one case on committing an act defined by Article 143 of the RA Criminal Code has been examined in the courts of the Republic of Armenia.

Article 160. Hindrance to the right to exercise freedom of conscience or religion.

Hindrance to the implementation of religious ceremonies or legal activities of religious organizations, is punished with a fine in the amount of up to 200 minimal salaries or with arrest for the term of up to 2 months.

Article 160 of the RA Criminal Code is aimed at protecting the right to freedom of thought, conscience and religion enshrined in the Constitution.

The act defined by the Article may be present in case the offender hinders:

1) the legal activities of a religious organization or

2) the performance of religious rites.

Hindrance of the legal activities of a religious organization can be manifested, for example, by closing churches, groundlessly denying the registration of a religious organization, and so on.

Hindrance of the performance of religious rites can be manifested in any kind of influence on a person, which occurs to prevent the latter from participating in a certain ritual or to disrupt the conduct of a particular ritual or the further course thereof.

According to the data of the judicial information system datalex.am, no case on committing an act defined by Article 160 of the RA Criminal Code has been examined in the courts of the Republic of Armenia since 2008.

Inciting national, racial or religious hatred and public call for violence, including such acts as publicly justifying or advocating violence are considered to be crimes against public security.

Article 226. Inciting national, racial or religious hatred.

  1. Actions aimed at the incitement of national, racial or religious hatred, at racial superiority or humiliation of national dignity, are punished with a fine in the amount of 200 to 500 minimal salaries, or with imprisonment for the term of 2-4 years.
  2. The actions defined in part 1 of this Article committed:

1) publicly or by mass media,

2) with violence or threat of violence;

3) by abuse of official position;

4) by an organized group,

are punished with imprisonment for the term of 3 to 6 years.

Actions aimed at inciting religious hatred are manifested in the spread of various ideas and beliefs that erode or neutralize respect and trust for a particular religion or create a sense of hatred towards members of a religious organization.

Incitement of religious hatred is manifested in the creation of a negative image of a religion, the attribution of a real or imagined negative image of individuals to the whole religious community, blaming the representatives of a particular religion for the plight of representatives of their own religion, accusing the representatives of a religion of having intentions of hostile actions against their own nation, demanding the application of coercive measures against members of a religion, etc.

Article 226.2 Public call for violence, including such acts as publicly justifying or advocating violence

  1. the public call for violence against a person or group of persons based on sex, race, colour, ethnic or social origin, genetic characteristics, language, religion, ideology, political or other views, affiliation to national minority, property status, origin, disability, age or other personal or social ground, including such acts as publicly justifying or advocating such violence in the absence of elements of crimes defined under Part 4 of the Articles 225, 226, 226.1, 301, 385, 397.1 of this Criminal Code are punished with a fine in the amount of 50 to 150 minimal salaries, or with arrest for the term up to 2 months or with imprisonment for the term up to 1 year.
  2. The actions defined in part 1 of this Article committed:

1) by a group of individuals with prior agreement,

2) by abuse of official position;

are punished with a fine in the amount of 150 to 300 minimal salaries or with arrest for the term of 2-3 months or with imprisonment for the term of 1-2 years with prohibition to hold certain posts or practice certain professions for the term of 1-3 years or without it.

Article 226.2 of the RA Criminal Code reflects a component of "hate speech", which is manifested by making public call for violence, publicly justifying or advocating such violence.

According to a case law of the European Court of Human Rights, "hate speech" is beyond the scope of the right to freedom of expression.

Public call for violence against a person or group on religious grounds, publicly justifying or advocating such violence is an extreme manifestation of "hate speech".

Article 226.2 of the RA Criminal Code entered into force on 15.04.2020 and any judicial practice of the Article, as of 01.01.2021, is absent.

Committing a crime on the grounds of religious hatred or religious fanatism is considered an aggravating circumstance for liability and punishment․

Article 63. Circumstances aggravating the liability and punishment.

    1. Circumstances aggravating the liability and punishment are as follows:

6) committal of a crime with motivation of    national, racial or religious hatred, religious fanatism, as revenge for other people’s legitimate actions;

In a number of articles of the RA Criminal Code, committing a crime motivated by religious hatred or religious fanaticism, such as murder, infliction of willful medium-gravity or heavy damage to health, torture, willful destruction or damage of property, desecration of a corpse or burial places, makes the crime qualitative.

Article 104. Murder

  1. Murder is illegal willful deprivation of one’s life punished with imprisonment for 8 to 15 years.
  2. Murder:

13) with motives of national, racial or religious hatred or religious fanatism;

 is punished with 12-20 years of imprisonment or for life.

Article 112. Infliction of willful heavy damage to health.

  1. Infliction of willful bodily injure to a person or infliction of other heavy damage to health, which is dangerous for life or caused loss of eye-sight, speech, hearing or any organ, loss of functions of the organ, or was manifested in irreversible ugliness on face, as well as caused other damage dangerous for life or caused disorder, accompanied with the stable loss of no less than one third of the capacity for work, or with complete loss of the professional capacity for work obvious for the perpetrator, or caused disruption of pregnancy, mental illness, drug or toxic addiction, is punished with imprisonment for the term of 3 to 7 years.
  2. The same act, committed:

12) with motives of national, racial or religious hatred or religious fanatism;

is punished with imprisonment for the term of 3 to 7 years.

Article 113. Infliction of willful medium-gravity damage to health.

    1. Infliction of willful bodily injure to a person or any other damage to health which is not dangerous for life and did not cause consequences defined under Article 112 of this Code, but caused protracted health disorder or significant stable loss of no less than one third of the capacity to work, is punished with arrest for the term of 1 to 3 months or imprisonment for the term of up to 3 years.
    2. The same act, if committed:

7) with motives of national, racial or religious hatred or religious fanatism,

is punished with imprisonment for the term of up to 5 years.

Article 119. Torture.

  1. Torture is willfully causing strong pain or bodily or mental sufferance to a person, if this did not cause consequences defined under Articles 112 and 113, in the absence of elements of crimes defined under Article 309.1, of this Code is punished with imprisonment for the term up to 3 years.
  2. The same actions, committed:

7) with motives of national, racial or religious hatred or religious fanatism,

is punished with imprisonment for the term of 3 to 7 years.

Article 185. Willful destruction or damage of property.

  1. Willful destruction or damage of somebody’s property, which caused significant damage, is punished with a fine in the amount of 50 to 100 minimal salaries, or with arrest for the term of up to 2 months, or with imprisonment for the term of up to 2 years.
  2. Same action which:

4) was committed with motives of national, racial or religious hatred or religious fanatism, is punished with imprisonment for the term of up to 4 years.

Article 265. Desecration of a corpse or burial places.

  1. Desecration of a corpse or destruction, damage or desecration of cemetery facilities or items, or places allocated for memorial ceremonies, is punished with a fine in the amount of 300 to 500 minimal salaries, or with arrest for the term up to 2 months.
  2. The same actions which were committed:

     2) with motives of national, racial or religious hatred;

 are punished with a fine in the amount of 400 to 800 minimal salaries,  or with arrest for the term of 1-3 months, or with imprisonment for the term of up to 3 years.

The RA Criminal Code stipulates that a person who has committed a crime may not be extradited to a foreign state if there are reasonable grounds to believe that extradition is required for the purpose of investigation or punishment on the basis of religion.

Article 16. Extradition of persons who committed a crime.

  1. In accordance with an international treaty of the Republic of Armenia, the foreign citizens and the stateless persons who committed a crime outside the territory of the Republic of Armenia and who find themselves in the Republic of Armenia, can be extradited to a foreign state, for criminal liability or to serve the punishment.
  2. The persons specified in part 2 of this Article are not extradited to foreign states if there are serious reasons to believe that extradition was requested for investigation or sentencing the person on basis of their racial, religious, national, social or political affiliation.

No one shall be extradited to country, where there is a serous danger of being tortured or being a subject to inhumane and humiliating attitude and sentence.

Legal Protection Measures

The legal way to protect oneself against crimes is to report to law enforcement agencies.

Natural and legal persons as well as the media can report a crime.

Reports by natural persons can be written or oral.

A letter or statement with no signature or a forged one, or one written on behalf of an imaginary person, and any other anonymous reports of crime are not a reason to file a criminal case.

A legal person’s report must have the form of an official letter or a certified telegram, telephone message, radiograph, e-mail, or other accepted form of reporting. Documents confirming the commission of the crime may be attached to the report.

Media reports are reports of committed or planned crimes through the press, radio, television, as well as by unpublished communication means addressed to the media.

After discussing the report, one of the following decisions is made:

1) to initiate a criminal case,

2) to refuse to initiate a criminal case,

3) to hand over the report in accordance with subordination.

The decision to refuse to initiate a criminal case may be appealed to the prosecutor within 7 days of receiving the copy of the decision.

Based on the appeal of the refusal to initiate a criminal case, the superior prosecutor shall, within 7 days of receiving it, annul the appealed decision, initiate a criminal case and send it to the investigator for preliminary investigation or confirm the legality of the refusal to initiate a criminal case.

Within one month after receiving the notice on dismissal of the appeal by the prosecutor or not receiving a response to the appeal, the person has the right to file a complaint to court.

The decision on dismissal of the appeal can be appealed to the RA Criminal Court of Appeal, and in case of dismissal of the appeal by the RA Criminal Court of Appeal – to the RA Court of Cassation.

 

Sample Forms

Sample form for crime-reporting

Sample form for appealing the decision on refusal to initiate a criminal case to the prosecutor

Sample form for appealing the decision on refusal to initiate a criminal case to the court

Sample form for appealing a court’s decision to dismiss an appeal, to the Court of Appeal

Sample form for appealing the Court of Appeal’s decision to the Court of Cassation