STRASBOURG, France (CN) — The European Court of Human Rights issued its second-ever advisory opinion Friday in the prosecution of a former Armenian president, saying a national court should decide whether the law he is charged under is more severe than the one it replaced.
The Constitutional Court of Armenia asked the Strasbourg-based court to decide whether the prosecution of Robert Kocharyan is compatible with the European Convention on Human Rights, which established the court in 1953.
Kocharyan has been charged with “overthrowing the constitutional order of Armenia” for his role in the 2008 elections, but the statue he has been charged with violating didn’t come into effect until 2009. Kocharyan has dismissed the charges as politically motivated.
A 17-judge panel at the Court of Human Rights unanimously found Friday that a law criminalizing an act passed after the act has taken place is not compatible with the convention if the “subsequent law is more severe than the law that was in force at the time.”
The Armenian government argued that there was a similar statue in force in 2008, so the charges don’t violate the principle of non-retroactivity. Whether the statutes are similar is up for a national court to determine based on the specific circumstances in the case at hand, the rights court found.
Armenia’s high court also asked the Court of Human Rights to weigh in as to whether the convention allows so-called referential legislation, when laws reference provisions beyond the statute. The statue that Kocharyan is charged with refers to articles on the country’s constitution.
Friday’s opinion held that the convention does not explicitly forbid referential legislation, but advised that “the most effective way of ensuring clarity and foreseeability is for the reference to be explicit, and for the referencing provision to set out the constituent elements of the offence.” The statute in Kocharyan’s case does not do that.
After serving as president for two terms from 1998 to 2008, Kocharyan was constitutionally ineligible to run for reelection in 2008 in the ex-Soviet state. He backed his prime minister Serzh Sargsyan, who ultimately won, but supporters of the opposition took to the streets, claiming the election was unfair.
At least 10 people were killed in the ensuing crackdown by police. Kocharyan also declared a 20-day state of emergency and members of the opposition were arrested.
Sargsyan served as president until 2018, when, despite being banned by the constitution from serving again as prime minister, was reelected to his former post. That election led to another round of protests and Sargsyan stepped down, replaced by the opposition party leader Nikol Pashinyan.
Pashinyan spent several years in jail for his role in the 2008 protests and a few months after his election, Kocharyan was arrested. Pashinyan denies that the charges are politically motivated.
“All those who say that Robert Kocharyan is a political prisoner say that I have the right to bring the Armenian Armed Forces and tanks to Yerevan and crush any opposition manifestation under the track-layers. If I have no right to do it, it means Robert Kocharyan cannot be a political prisoner,” the prime minister in a statement last year.
Coincidentally, the protocol giving the Court of Human Rights the ability to issue advisory opinions came into effect less than a month after Kocharyan’s arrest. Protocol Number 16 was proposed in 2013 and ratified in 2018, though not all parties to the convention have signed it. It allows a country’s high court to request an interpretation of rights guaranteed in the convention.
The court’s first advisory opinion came in response to a request from France in 2018, which wanted clarity on parental rights of the intended mothers of children born abroad via surrogacy.
Though the rights court addressed two of the questions put to it by the Armenia court, it said it could not deal with the other two. They asked the court to define the concept of a “law” under Article 7 of the convention, which forbids the prosecution of anyone under a law that was not in place at the time the crime occurred.
“The court could not see any direct link between the first two questions and the proceedings against Mr. Kocharyan,” the Strasbourg-based court said. “Any answers to the first and second questions would be of an abstract and general nature and beyond the scope of an advisory opinion.”
In an unrelated legal proceeding, an Armenian court ruled Friday that Kocharyan can remain in a hospital until the end of the Covid-19 pandemic, rather than returning to the penitentiary where he was being held. He’s been at the Izmirlian Medical Center in the Armenian capital city Yerevan since having emergency surgery earlier this month.
The case will now return to the Armenian court.