Subversion of the constitutional order was a criminal offense in 2008 too.

On July 3, 2018, the Special Investigation Service (SIS) of the Republic of Armenia issued a statement, according to which in the framework of the criminal case initiated with regard to the tragic events of March 1, 2008, charges were brought against former Minister of Defense Michael Harutyunyan.

According to the SIS report, Harutyunyan is charged with committing a criminal act under Article 300.1 of the RA Criminal Code, namely, the subversion of the constitutional order.

 Hraparak daily and Aravot daily published reports stating that the Special Investigation Service accuses Michael Harutyunyan of committing a crime, which at the time of committal, in 2008, was not criminally punishable.

The problem here is that Article 300.1 of the Criminal Code, under which Michael Harutyunyan is charged today, was added on March 18, 2009. Article 12 of the Criminal Code states that “the criminality and punishability of the act is determined by the acting criminal law at the time of committal of the offense”; and paragraph 2 of the Article 13 states that “the law stipulating the criminality of the act, making the punishment more severe or worsening the status of the criminal in any other way, has no retroactive effect”. Thus, Michael Harutyunyan could not be charged under Article 300.1, as during the committal of the possible offense, the Article 300.1 did not exist, and later on, the existence of the mentioned article could not have any retroactive effect.

The seemingly contradictory situation becomes settled when we look at the description of Mikayel Harutyunyan’s actions. The Article 300.1, under which the former Minister of Defense is accused, states “The subversion of the Constitutional Order, i.e. the actual abolition of any norm provided in paragraph 1 of the Article 6, or in Articles 1 to 5, which is expressed in the legal system by termination of the norm, is punished with imprisonment for the term of 10 to 15 years”.

In the Criminal Code of 2008, instead of the article “Overthrowing the Constitutional Order” was the Article “Usurping state power”. By then, the article 300 stated “Usurping state power, i.e. seizure of state power, in violation of the Constitution of the Republic of Armenia, or keeping it with violence, as well as, actions aimed at overthrowing the constitutional order of the Republic of Armenia or the violent breach of territorial integrity of the Republic of Armenia, is punished with imprisonment for the term of 10 to 15 years.”

Thus, if we were back in 2008, Michael Harutyunyan could be charged against “usurping the state power”, as today, the elements of the offense committed under Article 300.1 of the Criminal Code are comparable to the elements of the crime covered by Article 300, in 2008. In both cases, the object of the crime is the action against the constitutional order.

The current Criminal Code defines the Article on usurping the state power as follows “Usurping state power by violence or under the threat of violence, as well as, in other ways not provided in the Constitution, actions aimed at usurping the authorities of the President, the Head of National Assembly, Government or the Constitutional Court of the Republic of Armenia”.

The act Michael Harutyunyan is charged today is not characterized by the elements of the crime covered in the article “Usurping the state power”, as Harutyunyan did not usurp the powers of the President, The Head of the  National Assembly, the Prime Minister or of the President of the Constitutional Court.

While we were preparing this publication, the SIS Head Sasun Khachatryan touched upon the issue during the briefing in the government with journalists, making the same judgements that we have already stated in our article.

Tirayr Muradyan