Contents
Preface
Methodology
Brief survey of the situation
National legal regulation
Constitution
Legislation
Criminal code
Other legal acts
Legal reforms
Constitutional reforms
Reforms of Criminal Code
Draft of the new Code of Criminal Proceedings
Government programs and initiatives
National strategic program of human rights protection
Action plan deriving from the National strategic program
Positions/ reports of the UN bodies
UN Committee on the Elimination of Racial Discrimination
Recommendations to Armenian authorities
Report of the UN Universal Periodic Review
Positions/ reports of the CoE bodies
European Commission against Racism and Intoleranc
Systemic problems
ECRI recommendations to Armenian authorities
Decisions of the European Court
Human rights organizations
Eurasia Partnership Foundation
Committee to Protect Freedom of Expression
Human Rights Watch human rights organization
Freedom House human rights organization
Ombudsman’s office
Data collection practice
RoA Police Information Center
Annual reports of the RoA Prosecutor’s Office
Annual summaries of the RoA Judicial Department
Data of the National Statistical Service
Annual reports of the Ombudsman
Official statistics
Training centers and teaching
Analysis
Legislation
Domestic practice
Analysis of questionaries
Recommendations
ADDENDUM 1
ADDENDUM 2
ADDENDUM 3
ADDENDUM 4
ADDENDUM 5
This objective of this research is to study the systems performing permanent monitoring of hate crimes in the Republic of Armenia, collection, classification and fixation of relevant data, legal regulations, related to such crimes; to make their comparative analysis with principles and standards, provided by international human rights structures, in particular, the UN and CoE bodies. The research also includes the analysis of statistics and domestic practice.
The Republic of Armenia in its reports to international bodies, as a rule, mentions absence of hate crimes or their insignificant number. The question is whether the information reflects the real situation or not. There is an opinion that due to relevant systemic problems, the data, provided in such reports, do not describe the reality in full. The UN Committee for Elimination of Racial Discrimination expressed its concern in respect of the last report of the RoA Government, pointing out that such data can be explained by the reason that population is ill-informed on racism, victims of offences are unaware of their rights, they are afraid of revenge, there is a lack of public trust to courts, or the authorities are unwilling to initiate legal processes, etc. To see how much the mentioned concerns are grounded, first of all it is necessary to find out whether systemic problems are available in collection and processing of data on hate crimes, relevant legislative regulation and intra-governmental practice, etc.
This research revealed a number of systemic problems, impeding proper data collection and classification. It also helped to find out some legislative problems, as well as ones in law-enforcement practice, due to which measures of legal protection and public awareness systems are in some cases ineffective.
With the view of revealing available systemic problems, if any, the question of fulfillment of relevant international obligations by the Republic of Armenia really was studied, as far as a member state to the UN Convention on Elimination of All Forms of Racial Discrimination and the European Convention on Human Rights, Armenia is under the monitoring of the UN Committee of the Elimination of Racial Discrimination and the European Commission against Racism and Intolerance, set up on the basis of mandates of the mentioned conventions, and as such, the country submits regular reports on fulfillment of its international obligations.
This research can be useful for scholars, human rights activists, law-enforcement officers, because it reveals the problems that representatives of the mentioned professions frequently deal in their activity.
We are confident that this research will be continuous, as far as this sphere poses public interest.
The research mainly studies the practice of 2014-2015; however, with the view of providing a better understanding of the situation, the cases of 2005-2014 have also been reviewed. In this sense, the practice of investigation, preliminary investigation and judicial examination of the cases, posing public interested, was studied. Documents, related to preliminary and judicial examination of concrete cases, as well as relevant mass media publications and statements and remarks of human rights organizations and international bodies were studied. Interviews were held with lawyers, human rights activists and investigative journalists.
Special questionaries were elaborated and sent by mail or Internet to officials, civil activivsts, members of parliament. Questionaries were also sent to a number of government bodies, such as the Police, Judicial Department, National Security Service, Prosecutor’s Office, Ministry of Justice and other bodies of the Republic of Armenia, dealing with collection and processing of data, related to crimes. Most of questionaries were answered. Based on the analysis of answers, relevant conclusions were made: they are given in this research with proper references. Some answers to the questionaries were provided with important statistics, included into the research. Annual reports and statements of a number of public bodies were also studied. In these papers, they presented analyses of the crime, relevant statistics, forms of registration, etc. In this sense, a number of decisions of the Government, related to procedures and principles for regulation of data collection, classification and publication, were also studied.
There has never been a comprehensive report on hate crimes, to be presented by RoA Government bodies or intra-governmental state or non-state structures, including non-governmental organizations. The exception is researches or statements, made by some human rights organizations, dealing with specific spheres, and reports, sent to international organizations and related to concrete cases. In this context, reports to the UN Committee for Elimination of Racial Discrimination or the European Commission against Racism and Intolerance, submitted by the RoA Government on behalf of Armenia, as a party to relevant conventions, can also be noted here. The platform of the OSCE Office for Democratic Institutions and Human Rights, where data related to hate crimes in various states is published, lacks appropriate information on the Republic of Armenia((See in the website: http://hatecrime.osce.org/armenia)). In our opinion, the reason is that information, presented from the Armenian Government, notes the lack of such data.
However, human rights organizations, mass media, as well as government bodies regularly provide information about acts, scrutinizing of which shows that they have elements of hate crimes. On the one hand, according to official sources, an insignificant number of such crimes occur in the Republic of Armenia, and sometimes absence of such data is registered; and on the other hand, mass media and human rights organizations insist that such crimes are available. According to the mentioned sources, such crimes are mainly committed against persons because of their ethnic origin, religious belief, sexual orientation and gender identity((See, for example)). Some crimes acquired public resonance, such as the case((See more details in paragraph 1.2.2.)) of young people, who burned DIY bar. Although the persons, who committed the crime, were subjected to criminal prosecution, according to many, the legal qualification of the crime was selected incorrectly, as a result of which a very disproportionate punishment was meted out.
As it is observed, hate speech or relevant appeals have been widely spread out in mass media and social networks in the recent period. Even more, such phenomena often have an encouraging reaction by high level officials or politicians. Although not all manifestations of hate speech obtain elements of hate crime, but they need regulation even in the spheres of administrative or civil law, and in this sense, studying legal mechanisms in the mentioned spheres are important. In general, the passivity, reigning in this field, brings about the passivity of judicial practice as well. Up to now, the European Court of Human Rights has made one decision against Armenia, referring to prohibition of discrimination, and made a relevant decision. As for the hate crimes, judicial acts with such grounds are very scarce.
4.1. Constitution
Article 14.1 of the Constitution of the Republic of Armenia defines the principle of prohibition of discrimination on a number of grounds, including the race, skin color, ethnic or social origin, genetic characteristics, language, religion or belief, membership of a national minority. The Second provision of Article 47 of the Constitution prohibits exercising rights and freedoms, defined by Constitution and laws, with the purpose of violent overthrow of the constitutional order, incitement to national, racial, religious hatred, propaganda of violence or war. Article 14.1 of the Constitution defines an open list (“other circumstances”) of grounds or characteristics, to be prohibited for discrimination, which allows to spread exclusion of discrimination to any feature. However, Armenia ratified Protocol 12 to the European Convention on Human Rights (hereinafter, European Convention), Article 1 of which defines general prohibition of discrimination. The European Convention with the mentioned protocol is incorporated into the national legal system and is applied in the domestic practice.
4.2. Legislation
4.2.1. The RoA Criminal Code
The Criminal Code of the Republic of Armenia defines racism as a specific crime, and as a qualitative criterion of other crimes. Article 143 defines a criminal liability for a direct or indirect violation of human rights and freedoms, if they were based on a number of characteristics, protected with the prohibition of discrimination, including the race, skin color, ethnic origin, membership of a national minority. The same crime, if committed by a public officer and with the abuse of office, implies aggravation of punishment. Article 226 implies criminal liability for incitement of national, racial or religious hatred, as well as for actions aimed at the racial superiority or humiliation of national dignity. According to the Code, mentioned actions imply punishment with a fine in the amount of 200,000-500,000 AMD or imprisonment for the term of 2-4 years. If the same actions were committed publicly or by mass media, with violence or threat of violence, or abuse of office, as well as by an organized group, they would be punished by imprisonment for the term of 3-6 years. Article 392 implies imprisonment for the term of 10-20 years or life sentence for deportation, illegal arrest, enslavement, mass and regular execution without trial, kidnapping followed by disappearance, torture or cruel treatment of civilians, which are committed on the basis of racial, national, ethnic identity, political views and religion. Article 393 implies imprisonment for the period of 14-20 years or life sentence for committinggenocide. Article 3971 envisages a fine in the amount of 100,000-200,000 AMD or maximum years of imprisonment for denial, derogation of Genocide and other crimes against peace and human security, their approval or justification, if they are perpetrated based on ethnicity, skin color, national or ethnic background or religious affiliation for inciting hatred towards a person or group of persons, their discrimination or violence. Paragraph 4, part 3 of Article 390 implies a 8-12 years imprisonment for such actions, considered as a serious violation of the international humanitarian law in armed conflicts, and based on apartheid or racial discrimination, degrading person’s dignity and other non-humanitarian or humiliating actions.
In addition to the above-mentioned, the Code considers as aggravating circumstance for the liability and punishment, implied for the crime, if it is motivated with national, racial or religious hatred, (Art. 63(1)(6)). It derives from the principle of punishment, according to which defining the type and measure of punishment depends on the degree of public danger provided by the given crime (Art. 61(2)). It means that, for example, if the act, defined by Article 160 (hindrance to exercising the right to freedom of speech and religion; for example, to performing a religious ritual) is committed with motivation of the racial or religious hatred, even if such motivations are not defined by the given article, the judge can consider that motivation, taking into account paragraph 6, part 1 of Article 63, as a circumstance, aggravating the punishment. In other words, this provision has a universal application and can be applied in combination with any article.
However, it is should be taken into account that the above-mentioned motives are defined in some articles as qualitative characteristics, aggravating a punishment. For example, the murder, committed with motivation of national, racial or religious fanaticism substantially aggravates the pubic danger of such an act, increasing the measure of punishment: from 12-15 years imprisonment up to life sentence (Art. 104(2)(13). The same refers to willful infliction of heavy (Art. 112(2)(12)) or medium-gravity (Art. 113(2)(7) damage to health, torture (Art. 119(2)(7)), willful destruction of property (185(2)(4), outrageous treatment of dead bodies or burial places (265(2)(2)).
4.2.2. Other legal acts
Provisions, related to exclusion of racial discrimination, are defined in numerous legal acts. Addendum 1 gives a list of such legal acts with indication of relevant provisions. In the mentioned legal acts, provisions, related to prohibition of discrimination, including the ones, related to racism, are defined as texts with similar and generalized content. As such, given provisions do not provide comprehensive legal defense mechanisms, systems, and this circumstance has its impact on their effectiveness, as legal defense systems.
Although most of the legal acts, listed in Addendum 1, regulate the spheres of administrative and civil law, the pivotal legal acts of these two spheres, i.e. the RoA Civil Codeand the RoA Law on Fundamentals of Administrative Action and Administrative Proceedings, have no any provision related to discrimination, including prohibition of racism. In addition, the Civil Code also does not single out hate speech as a specific object of civil relations. All this in practice causes serious difficulties, related to the fact that citizens, when soliciting for protection from hate speech in civil aw relations, have to apply to the mechanism of legal protection from insult and defamation, as defined in Article 1087.1 of the Civil Code, meanwhile such mechanisms are created especially for civil disputes with elements of insult and defamation, and it is not always that they become an effective measure for legal protection. It is also necessary to add the fact that the Armenian legislation lacks a specific comprehensive law on prohibition of discrimination, and it is a substantial sircumstance that should be taken into consideration.
Thus, unlike the criminal law, there is a legal omission in the administrative and civil law spheres: the latter ones are lacking comprehensive mechanisms for legal protection, related to racism and hatred. This problem was also mentioned in the report on 2011, made by the European Commission against Reacism and Intolerance (see point 7.1.2).
4.3. Legal reforms
4.3.1. Constitutional reforms
At present the process of constitutional reforms is in progress in Armenia. 1-7 Parts of the new Constitution were published for public discussion on July 15, 2015. Articles in Part 2 refer to human rights. Article 29 defines prohibition of discrimination on the grounds of language, religion, race, skin color, ethnic and social origin, membership to a national minority or other elements of personal nature. Article 77 defines prohibition of the abuse of fundamental rights and freedoms; according to it, it is prohibited to use the rights and freedoms to incite national, racial, religious hatred, to propagandize violence and war.
4.3.2. Reforms of the Criminal Code
On June 9, 2015, the National Assembly adopted a draft law on making amendments in the Criminal Code, according to which elements of the crime of torture and the measure of punishment were substantially changed. Formerly, the torture was defined only in the Part of crimes committed against human (Article 119), i.e. regulated only legal relations between two persons. The modification refers to elements of the crime of torture in the Part of crimes against the State authority: Article 3091 of this Part extends the term “torture” also to the case of torture of a person by a public official, based on the definition in Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In the disposition of Article 3091, among others, the following element was introduced: “any reason based on discrimination of any kind,” as a specific motivation of act. The punishment, specified for this offence was strengthened: four-eight years imprisonment instead of three-seven years, as it was specified by former Article 119, and in case if the same offence is committed, involving some other elements, for example, with a special cruelty, or aimed against two or more persons, etc., the punishment is also strengthened (7-13 years of imprisonment).
The works, related to the new Criminal Code, may attract a special attention, as far as the already published concept and some conceptual thoughts in it indicate that regulation of hate crimes in the new code will be substantially improved. In particular, there is an interesting idea that while the current code defines the types of crime by severity of the envisaged punishment, and as a result, the act of a person can be classified only by a more or less grave consequences of the act, the new code is aimed at having the “person concept” and not the “offence concept” as a basis, when defining the gravity of crime. It means that there will be a focus not on the consequence of that act, but rather on the individuality of the person, who committed the crime, his or her public danger, and not that of the relevant act, its purpose and relevant other circumstances. It is obvious that such approach will contribute to improvement of the legal regulation of hate crimes, where an important component element of such offence is its discriminative, hate motive((The concept was published on September 7, 2015. Full text of the concept can be found here: http://www.moj.am/storage/files/legal_acts/legal_acts_0871859725811__._._.pdf)).
4.3.3. Draft of the new Code of Criminal Proceedings
Draft of the new Code of Criminal Proceedings, which is now under the public discussion and will soon be sent to the National Assembly for parliamentary hearings, defines that all procedures, set up by law, shall be unified for all persons, involved in the criminal proceeding, regardless the race, skin color, ethnic and social origin and other specifics, protected by the prohibition of discrimination (Article 16).((The full text of draft can be found in the website of the Ministry of Justice on page: http://justice.am/legal/drafts))
5.1. National strategic program of human rights protection
National Strategy((Directive of the RoA President NK-159-N was entered into force on 17.11.2012.)) of Human Rights Protection was approved by a decree of the RoA President on October 29, 2012; it was submitted for approval by the National Security Council. The document defines a number of directions for human rights protection, among which the following should be singled out:
«2.2. Main principles of the Strategy
2) Full implementation of international obligations. Those international law obligations are selected as a fundamental guideline and standard for human rights protection, which the Republic of Armenia assumed in the manner, defined by law. Full implementation of all taken obligations is considered as baseline.
…
«30. Guaranteeing the right to freedom of thought, conscience, religion and belief, which includes:
1) taking necessary steps to struggle against hatred, intolerance and consequent intimidation and coercion acts,
2) ensuring perception of the issues of religion and belief and increasing and encouraging tolerance towards them,
3) with the purpose of prevention of manifestations of discrimination on the basis of religious or conscience, initiation of necessary legal and administrative measures, and in the cases of violation of the rights to freedom of religion and belief, ensure effective legal solutions to protect victims.”
5.2. Action plan deriving from the National strategic program
The RoA Government adopted on February 27, 2014, an action plan, based on the above-mentioned national strategy, defining the following provisions on prohibition of discrimination:
6.1. UN Committee on the Elimination of Racial Discrimination
The Republic of Armenia, as a State Party of the UN Convention on the Elimination of All Forms of Discrimination, assumed some obligations on implementation of the convention. The process of implementation is under observation of Committee on the Elimination of Racial Discrimination. The latter in its report, published on April 4, 2011,((Document #A/HRC/29/11 of the UN Working Group on the Universal Periodic Review. The full text can be seen in the following website: http://www.upr-info.org/sites/default/files/document/armenia/session_21_-_january_2015/a_hrc_29_11_e.pdf )) pointed out the following obligations (below are given only those parts, referring to the topic of this research).
6.1.1. Recommendations to Armenian authorities
6.2. Report of the UN Periodic Universal Review
The UN Human Rights Council during its 29th sitting in Geneva on June 25, 2015, approved the second report((Point 120.84. See also points 120.80-85, related to legislative regulations of the protection of rights of sexual minorities.)) of the “Working Group on periodic Universal Review”. The second Report mentions 189 recommendations to the Republic of Armenia, and in particuler:
Recoomendations were also made on the matter of prohibition of discrimination, and in particular, the necessity of adopting a stand-alone law on the comphrehensive legislative regulation of prohibition of discrimination((With the exception of recommendation on the necessity of adopting a special law the sexual minority: see remark on point 120.82 of document A/HRC/29/11/Add.1.)). All mentioned recommmendations((See document # A/HRC/29/11/Add.1 of the Working group on the Universal Periodic Review.)) were supported by the Armenian Government.((Document CRI(2011)1 of the European Commission against Racism and Intolerance. It was adopted in December, 2010, and published on February 8, 2011.))
7.1. Europeam Commission against Racism and Intolerance
The European Commission against Racism and Intelorance (hereinafter, ECRI) in its report on Armenia (published on February 8, 2011) made a number of recommendations to Armenian authorities, related to hate crimes((See Points 1-42.)). Among the systemic problems, indicated by the Commission, and its recommendations, we singled out important points, related to the objectives of this research.
7.1.1. Systemic problems
The Commission fixed the following systemic problems, related to the legal regulation and practice of prohibition of racism:
absence of legislative regulations of the civil and administrative law, prohibiting racial discrimination;
the Criminal Code does not define as a separate element of crime the activity of organization aimed at encouraging racism;
the Ombudsman’s office has no sufficient means to deal with monitoring of discrimination and hate crimes; statistics, related to religious hate crimes and racial discrimination legal civil or administrative actions, is not collected;
a system to collect ethnic data does not exist,
from the view of intolerance, there are obvious dangers in the field of religious freedoms. At schools, students, belonging to religious minorities, are exposed to discrimination through attachment of relevant posters. Permanent actions, such as posters, leaflets and other ways of expression in public places, are aimed against “sects”. In general, the response of authorities to religious hate crimes, is inadequate;
the National Security Service carries out monitoring of the religious organizations.
7.1.2. The ERCI recommenations to Armenian authorities.((Point 6.))
– creation and leadership of a group that promotes racism,
– support to such a group,
– participation in activities of such a group. Participation is also interpreted as intention to take part in crimes, listed in General policy recommendation #7,((Point 25.))
7.1.3. Decisions of the European Court
In the verdict on the case Virabyan v Armenia,((See point 24 of Document H/Exec(2015)14 of the Committee of the CoE Committee of Ministers (12/05/2015).)) the European Court of Human Rights (hereinafter, European Court), stated that violence, motivated by racism, offends the human dignity and, taking into account its disastrous consequences, it is required from state bodies to display a special watchfulness and to take relevant decisive steps. That is why state bodies should combat against racism and racism motivated violence by all available means, thus encouraging perception of democracy by the society, where diversity is understood as a source of development, not a threat.
8.1. Eurasia Partnership Foundation
In the second half of 2014, the Eurasia Partnership Foundation carried out a research to see whether a specific law of the Republic of Armenia should be adopted on prohibition of discrimination. Results of the research showed that available mechanisms, which are actually separate articles on prohibition of discrimination, spread out in numerous legal acts, but do not provide substantial bases for protection from discrimination, and that is why there is a need in creating a relevant comprehensive system of legal defense. The research was submitted to the RoA Ministry of Justice, which displayed a special interest toward it. In this connection, Ministry of Justice included this research into the framework of general actions of the Action plan, submitted to the Committee of Ministers of the Council of Europe, in relation to the proceeding on implementation of the ECtHR decision on Virabyan v Armenia case.((«Hate speech in Armenian mass media”, January 31, 2014. Summary report. Committee to Protect Freedom of Expression. See website www.Khosq.am ))
8.2. Committee to Protect the Freedom of Expression
The Committee to Protect the Freedom of Expression carried out a nine-month research in 2013 and prepared a large report.((See the report of organization in the following page: https://www.hrw.org/world-report/2015/country-chapters/armenia)) According to the organization, there are no multiple manifestations of hate speech in the Armenian press: 151,939 news materials were examined, in which 1% (1519 news materials) were referred to as hate speech. Most of all they were expressed in online media (0,60%), then on TV (0,12%), and in printed press (0,29%). Manifestations of hate speech were mostly related to political convictions, religion and sexual orientation and, to a less extent, to the ethnic origin. Hate speech, related to language and belonging to race, were not registered. In mass media the authors of hate speech are mostly journalists, followed by political figures and public officials.
8.3. Human Rights Watch human rights organization
In its report on developments of 2014, international organization Human Rights Watch referred to the rights of sexual minorities, pointing out that members of the LGBT community were subjected to discrimination, harrassment and psychological violence, and hate speech was widely aimed against them, including by public officials. The gender identity and sexual orientation as characteristics is not defined in the legal provisions of various legislative acts, related to prohibition of discrimination; as a result the possibilities of legal defense from crimes substantially decrease for members of that community.((See the report of organization in the following page: https://freedomhouse.org/report/freedom-world/2015/armenia#.VaUCkfmqqko))
8.4. Freedom House international human rights organization
This organization noted in its report of 2014 that although ethnic minorities seldom inform about the cases of open discrimination, the Yezid community from time to time informs about cases of discrimination by the Police and local authorities.((See also http://hra.am/hy/events/2014/05/08/statement in the online page. ))
8.5. The Ombudsman’s office
The Ombudsman in his annual report of 2014 noted that activists of the organizations “Women’s Resource Center” and “Women’s Support Center” during that year were subjected to repressions, and threats of violence were addressed to them in relation to their human rights activity, labelled as “destroying Armenian families”.((«Annual report on the activity of the Defender of human rights of the Republic of Armenia and violation of human rights and fundamental freedoms in the country. 2014”, Yerevan 2015. Page 385. Full text of the report in the Ombudsman’s website: www.ombuds.am)) Pictures of individual representatives of the metioned organizations were placed in some hate-propagandizing sites, where these persons were named “traitors of the nation,” and there were calls to get rid of them or to revenge. Although these events were widely covered by mass media and human rights structures, there was no adequate response from law-enforcement bodies, investigation was not initiated, and the police did not take measures to rule out such cases in the future.((See 4th point of Decision 933-N of the RoA Government “On the Approval of Procedure of Filing the Operative Information Card Catalogue and Providing of Information by the Information Center of the Police under the Government of the Republic of Armenia.))
The Ombudsman also made a reference to representatives of sexual minorties, noting that they undergo persecution and physical violence and the hate propaganda is widely spread in mass media and social networks.
A number of bodies carry out collection and processing of data and provide relevant information on crimes, including hate crimes. However, special independent structures to collect and process data on hate crimes are unavailable; collection and processing of data on hate crimes is carried out in the generalized manner, as the data on other crimes.
9.1. Information Center of the RoA Police
The main, central body, collecting data, is the Information Center, operating within the central apparatus of the the RoA Police under the RoA Government. This body has an operative card catalogue, operating in accordance with the procedure, set forth in Decision N933-N of the RoA Government. Data on the persons of categories, listed below, are entered into the mentioned card catalogue:
1) Data of the citizens of the Republic of Armenia, foreign citizens and apatrides, charged and convicted for crimes, committed on the territory of the Republic of Armenia, regardless the nature of crime,
2) data on the RoA citizens, convicted or sentenced in other countries, transfered to the Republic of Armenia to serve punishment, regardless the nature of crime,
3) data on persons announced in search,
4) data on the persons, accused by criminal cases, terminated on non-acquittal grounds,
5) data on persons on the wanted list,
6) data on minors, exempted from criminal liability, in relation to whom compulsary disciplinary measures were applied,
7) data on the persons, who committed crimes, envisaged by the Criminal Code, in relation to whom compulsary medical measures were applied by decision of the court,
8) data on the convicted persons, who were pardoned before the verdict entered into force,
9) data on the persons, in relation to whom institution of the criminal proceeding by prepared materials was rejected with non-acquittal grounds,
10) data on persons, released from arrest, in relation to whom the criminal prosecution was terminated.((See addendums of Decision 933-N of the Government.))
Data to be registered in the card catalogue of the Information Ceneter are listed below:
1) the guilty verdict of the court;
2) decision to indict;
3) decision of the court on selecting arrest as a measure of restraint;
4) decision on rejection to institute a criminal proceeding on non-acquittal grouds or termination of the instituted criminal proceeding;
5) decision on announcement of the search.
According to the decision of the Government, the data entry into the operative directory card catalogue is carried out with the aim of providing necessary information, envisaged by law, to the bodies, dealing with proceedings, related to prevention, suppression, revealing of crimes, to state government bodies, as well as physical persons.
Data in the card catalogue are kept regardless the removal or cancellation of the conviction record. The data are kept upon the person reaches the age of 80 with the exception of cases when a person was convicted for a heavy crime, or died at the place of detention, or the criminal prosecution was terminated on the acquittal grounds. In such cases relevant information is kept permanently.
All data are entered into registration forms or cards. There have been worked out ten types of cards, each to serve for registration of the above-mentioned ten types of data.((See subpoint ‘c’ of the 2nd point of Decision 933-N of the Government.)) A number of samples of cards are given in Addendum 2. Examination of all cards shows that registration of information is first of all carried out according to personal data of a physical person. In conformity with the decision of Governemnt, personal data are a person’s name, family name, patronymic, day, month and year of birth and place of birth.((The 4th point of Decision 933-N of the Government.)) After personal data, information to be filled in is nationality, place of work and residence, the day of detention or escape (depending on the type of registration card), as well as data on the nature of crime and article of the Criminal Code, on the basis of which a person was convicted or a relevant indictment was handed in. It means that the enhtry of data into the card catalogue and their classification is performed on the basis of personal data of the given person, and such data are classified two ways: groups of persons are classified by types of proceedings((According to a letter of head of the Information Center of the RoA Police Col. A. Ghukasyan, addressed to head of the Center for Partnership for Democracy S. Danielyan.)) and by personal data. After the entry of that information, other data have to be entered, including the nature of crime and article of the Criminal Code, on the basis of which the given person was subjected to criminal prosecution, conviction etc.
As we can see, the nature of crime or article of the Criminal Code are not primary data, on the basis of which the data collection, processing and submitting is carried out. It is also confirmed by Information Center, according to which crimes, registered as hatred-motivated ones, are not especially singled out in the currently available statistical reports, and that such crimes can be grouped in conformity with paragraph 4 of Decision 933-N of the RoA Government, according to data of a person or groups of persons, as well as in conformity of article of the RoA Criminal Code by the following format /104prt2pnt13, 112prt2pnt12, 113prt2pnt7, 119prt2pnt7, 226, 393, 265prt2pnt2, 160/. However, even in this case the primary data for the search of information or classification are personal data: name, family name, patronymic, etc (see above).((Ibid.))
The above-mentioned points allow to raise the question whether the Information Center also registers the cases, on the basis of which a criminal proceeding was instituted, but a criminal prosecution was not performed (for example, due to its impossibility, other objective reasons). According to subpoint ‘d’, point 5 of Decision of the Government, the bases for registration in the card catalogue is the decision to reject a criminal proceeding due to the lack of proof or the decision to terminate the instituted criminal proceeding. Judging from the information, received from the Information Center, according to which “there is no crime to be known to law-enforcement bodies and not registered”,((See, for example, publications of media on the following online pages: http://henaran.am/news_view.php?post_id=33108,
http://razm.info/18662, http://www.azatutyun.am/archive/news/20150205/2031/2031.html?id=26831548, http://www.mediamax.am/am/news/armypolice/11786/, http://www.a1plus.am/1361152.html, http://armtimes.com/hy/read/61364, http://galatv.am/hy/news/2014-in-banakum-mahacutyan-depqern-avelacel-en-iravapashtpany-2-glxavor-pattwar-e-nerkayacnum/։)) those cases are also registered in the card catalogue without personal data, related to an individual. Among such cases there can be criminal proceedings, instituted as based on paragraph 13, part 2, Article 104 of the Criminal Code (murder with motives of national, racial or religious hate or religious fanaticism), related to the Armenian-Azerbaijani borderline incidents, where Armenian soldiers are killed by shooting of Azerbaijani snipers. It is quite a long time that criminal proceedings with similar facts have been instituted as based on Article 104(2)(13).((Law on the Rules of Procedure of the National Assembly, Article 103.1. ))
9.2. Annual reports of the RoA Prosecutor’s Office
The Prosecutor’s Office of the Republic of Armenia every year makes an analysis of the general situation with crime and prepares a relevant report. Prosecutor General presents a report to the National Assembly before April 1 of each year, and the parliament debates it at a plenary sitting.((See Report of the activity of Prosecutor’s Office of the Republic of Armenia in 2014. Annual reports can be seen on the following page of the website of the Prosecutor’s Office: http://prosecutor.am/am/messages-to-the-president-and-the-national-assembly/))
The data included in the report are summarized by three spheres: crimes against humans, crimes against property and crimes of general nature.((Page 14, paragraph 2.)) In addition to the legal qualification, the report also provides the analysis and statistics in reference to specific functions of the prosecutor’s office, i.e. supervising the lawfulness of inquest and investigation, defending charges in court and appealing court judgments, protecting state interests, supervising the lawfulness of the enforcement of sentences and other compulsory measures.
In all Parts, summaries are given first of all by the types of crimes, as defined in the Criminal Code: for example, murder, inflicting willful damage to heath, humans’ trafficking, robbery, etc. The report mainly provides the generalized characteristic of crime. This principle is kept both when presenting the statistics and when evaluating the activity of prosecutor’s office according to its functions. For instance, when evaluating the supervising activity of the peorsecutor’s office over the lawfulness of inquest and investigation, it is presented that, for example, as related to 14,388 materials, prepared on crimes against humans, criminial proceedings were instituted on 2,010 ones (or 14%); as related to 10,587 materials on offences against property and economic activity, 6,058 ones (or 57.2%), and to cases of crimes of general nature criminal proceedings were institute on 7,090 of the prepared 1,523 materials (or 21.5%).((The last paragraph 9.1.)) That is, unlike the Information Center, where the data collection and processing was first of all performed by the baseline characteristic of personal data, the annual reports of the Prosecutor’s Office have another baseline characteristic: the type of crime as defined in the Criminal Code. However, even in this case, if the data refers to crimes, defined by Articles 104, 112, 113, 119, 185, 265, it is impossible to distinguish how many of them were committed with a qualitative element, aggravating the punishment, i.e. with motivation of hatred, as far as the information, given in the report, is not classified by that principle. For example, as it was mentioned above, the criminal proceedings with factual grounds of the murder of Armenian borderguards by Azerbaijani snipers((Paragraph 2 of the Section of crimes against man.)) are instituted on the basis of paragraph 13, part 2, Article 104 of the Criminal Code. The Information Center cannot have data on such cases, as far as criminal prosecution related to such cases is not executed. However, it can be definitely said that criminal cases, mentioned in the annual report of the Prosecutor’s Office, are included in the statistical data under the general definition of corpus delicti “murder” (53, the year of 2014),((All reports are published in the online website of the Judicial power www.court.am)) meanwhile it would be advisable that statistics indicated how many of the criminal proceedings, instituted on the ground of murder, refer to the cases of murders with hate motivation.
9.3. Annual summaries of the RoA Judicial Department
The RoA Judicial Department makes semi-annual or annual reviews of the judicial practice, summarizing their data and publishing relevant results not later than January 31 of the nex year.((Annual summary of the practice of criminal courts of general jurisdiction in 2014 can be see on page http://court.am/?l=lo&id=50)) Data collection and processing is carried out by means of statistical classifiers, which are defined by the Council of Courts Chairmen. Statistical classifiers are elaborated to study various spheres of the judicial practice, for example, the practices of courts of general criminal jurisdiction; courts of general civil jurisdiction; judicial practices, related to payment orders, juvenile prisoners, bankruptcy, etc.
334 classifiers were worked out to study the practice of courts of general criminal jurisdiction, and they are included in 18 groups (Addendum 3). Both groups and classifiers were elaborated on the basis of sections and articles of the Criminal Code.((Examples of the Directive and Form can be seen at the following page of the website of the National Statistical Service: http://www.armstat.am/am/?nid=302 )) For example, the first group is entitled “Crimes against life and health” and includes 28 classifiers, each corresponding to a specific article of the Criminal Code: article 104 – murder, 112 – infliction of willful heavy damage to health, 119 – torture, etc. Group “Crimes against public security” includes 37 classifiers, among which article 226 – inciting national, racial or religious hatred; 222 – banditry; 236 – illegal manufacture of weapons. Under each classifier and corresponding article of the Criminal Code statistical data are provided in relation to the number of verdicts, finished cases, appealed cases, judicial acts, which entered into legal force, and other decisions, made during the reporting year.
Unlike the operative card catalogue of the Information Center and the annual reports of the Prosecutor General, the collection and processing of data by the Judicial Department is carried out with the use of initial indicators of special classifiers, elaborated on the basis of articles of the Criminal Code. This circumstance in some cases allows to fix hate crime as a separate category, for example, if fixation of data is performed under Article 226 of the Criminal Code. However, in some cases, when the hate motive is a qualitative element of a crime, defined by the given article, the generalized indication does not provide thr possibility to find out, whether the fixed figure under that article refers to the crime with hate motive as well, or not. For example. Classifier 6.11 refers to Article 185 of the Criminal Code, defining the crime of willful destruction or spoilage of property. According to the mentioned indicators, in the reporting period, i.e. during the year of 2014, 28 cases were received, 20 of which were investigated and courts delivered judgments on the matter, 2 prosecutions were terminated, etc. However, it is impossible to find out from the given indicators, whether any of them refer to crimes, committed with the hate motive, or not.
As it comes from the above-mentioned theses, the Judicial Department does not keep a separate, specific statistics on hate crimes.
9.4. Data of the National Statistical Service
The National Statistical Service carries out collection, summarizing and publication of statistical data on some legal spheres, including crimes. Collection, classification and publication of crimes-related statistical data is performed in conformity with the Directive and according to the enclosed form, set up by Decision 05-N (February 23, 2004) of the RoA State Council on Statistics (Addendum 4).((See the text of Decision 11-N here: http://www.arlis.am/DocumentView.aspx?docID=47765)) Data for the report is provided by the Police, which is informed about it as prescribed by provisions of the procedure, approved by Decision 11-N “On approval of procedure of providing statistical information” of the State Council on Statistics of the Republic of Armenia (October 3, 2003).((Answer, received on 08.02.2015 from the Ombudsman’s Office to our questionnaire.)) Relevant report is submitted to the National Statistical Service before the tenth of the month, following the accounting period.
The format of report defines input boxes to entry statistics on 6 classified groups of crimes:
The total number of crimes in the reporting period is also groups by the degree of gravity.
45 types of crimes, given in the mentioned 6 groups, lack a definition of a hate crime as a separate category. In the best case it is possible to think, for example, that the data, registered under classifier 016.3, may include the crime of willful inflicting a grave damage to health, which was committed with the hate motive. However, it can be just an assumption, as far as the hate crime as a separate category is not presented in this statistical document.
9.5. Annual reports of the Ombudsman
The office of Defender of human rights keeps statistics of applications-complaints, reflected every year in annual reports on the activity of Defender of human rights of the Republic of Armenia, and violations of human rights and fundamental freedoms in the country, placed in the official site of the Ombudsman www.ombuds.am and asseccible for public. According to information, provided by the Onbusman’s office,((Letter of head of Informatio Center of the RoA Police, Col. A. Ghukasyan to head of the Center of Partnesrhip for Democracy S. Danielyan.)) any complaints, related to crimes with hate elements, have not been received by the Defender since 2014 up to the present. Anyway, the Ombudsman’s office is not authorized to keep a unified and centralized registry of hate crimes and such a practice is not available. Registration of such data is conducted by a generalized procedure, i.e. together with the other violations of human rights.
According to the reference, provided by the Information center, there was not any case of hate crime to be registered in its operative card catalogue during the year of 2014(Addendum 5)((See http://www.edupolice.am/ )). It is worth mentioning that this body registers not only e decisions on conviction, but also the ones, made at the pre-trial stage, for example, decisions on indictment, announcement of the search, termination of criminsal prosecution on the non-acquittal ground. In addition, the Information Center provided a special reference, according to which by July 28, 2015, six hate crimes were committed on the territory of the Republic of Armenia in the period of 2004-2015: one crime in 2005, two crimes in 2008, two crimes in 2011 and one crime in 2013 (Addendum 5).
The statistics of the report of the Judicial Department for 2014 (Addendum 3) also lack any data on the hate crime. It is necessary to note that it is the only data base, where data are registered on the basis of articles of the Criminal Code as a baseline characteristic. Total “0” in the data base is indicated in boxes, related to Articles 143, 226, 392, 393, 3971 of the Criminal Code. As for for the crimes, where hate motive is defined as a punishment aggravating (articles 104(2)(13), 112(2)(12), 113(2)(7), 119(2)(7), 185(2)(4), (265(2)(2)), due to the fact that discrimination related to race or other characteristics is not defined as a separate element, it is impossible to say whether the indicated figures include the hate crime cases or not. Nevertheless, the data of Information Center should serve as a basis to state that these data do not contain hate crimes.
The annual report of the Prosecutor’s Office also does not mention any data for 2014, related to hate crimes with elements, as definied in Articles 143, 226, 392, 393, 3971 of the Criminal Code; as for the data, even if such are available, related to Articles 104(2)(13), 112(2)(12), 113(2)(7), 119(2)(7), 185(2)(4), (265(2)(2)), it is impossible to define whether there were also crimes with hate motives.
According to the information, received from the Ombudsman’s office, since 2014 up the moment of questioning (July, 2015), the Ombudsman has not received any complaint, related to hate crimes. However, the Ombudsman mentioned in his report for 2014 some pieces of information, provided by a number of NGOs, about hatred-motivated cases of harrasment, persecution, threats and physical violence, which were aimed against activists, dealing with women’s rights, and representatives of the sexual minority (see point 8.5.).
Similarly, according to publications of human rights organizations and mass-media, some cases, which occurred in 2014, might be objectively classified as hate crimes, but they were not investigated as such.
The Police Academy((See ?)) for police officers and Academy of Justice for judges, prosecutors, and detectives, as well as persons, claiming to these positions, operate in the Republic of Armenia. Within the Chamber of Advocates of the Republic of Armenia there is a School of Advocates, training students, who applied for the advocate license.
None of the mentioned training centers has introduced a special course on hate crimes into their curricula. As for prohibition of discrimination as a specific subject, only the Lawers’ school since July has elaborated and applied a special training module on prohibition of discrimination, for a concrete group. The Academy of Justice also has the intention to apply a similar curriculum in the near future.
As for the subject of human rights, in all training centers the subject of human rights is included into curricula, and to a greater extent in the Academy of Justice. However, the subject of prohibition of discrimination and especially the theme of hate crimes are presented in the human rights course superficially, in the context of other subjects.
12.1. Legislation
According to the Guide for elaboration of national legislation, related to hate crimes (hereinafter, Guide), which was worked out by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), the hate crime is a criminally persecuted act, the motive of which is a bias or prejudice towards any group of people. Qualification of an act as a hate crime requires that the offence has two following elements:
1. The act must be considered as crime in conformity with the procedure, defined by the Criminal Law of the given state,
2. The act must have a bias motive.
The bias motive can be defined widely and incorporate a biased negative opinion, stereotypical assumption, intolerance or hatred towards any group, the members of which have common characteristics, for example, race, ethnic origin, religion, nationality, sexual orientation, gender identity or other fundamental characteristics. Disabled persons also can be victims of hate crimes.
Let us analyze the articles of the Criminal Code, related to hate crimes, in conformity with requirements of the Guide.
The first criterion of Part II of Guide says that fixing these two above-mentioned elements in the Criminal Code can be done two ways: either by introduction of the bias, considered as a motive of the offence, into the substantive ground and defining them altogether; or defining the bias separately from the substantive ground as an evaluating element, aggravating the punishment and liability((Point 19.)). In the Criminal Code, definition of hate crimes is made three ways, according to which relevant articles can be divided into three groups: the first one includes those articles, in which the substantive ground itself includes the motive or bias. These are Articles 143, 226, 390, 392, 393 and 3971. In each of the mentioned articles, the criminally persecuted offence and the nationally, racially and religiously motivated bias, compose the substantive ground of the article. The second group includes Articles 104(2)(13), 112(2)(12), (113(2)(7), 119(2)(7), (185(2)(4) and (265(2)(2), in which the motive of national, racial or religious hate or religious fanaticism is defined as a separate evaluating element, aggravating the punishment. The third group is composed of articles, defined in the general part as a separate element, aggravating the punishment and liability, and can be used in parallel with any article, including those ones, neither the substantive ground, nor the evaluating elements of which contain any national, racial, religious or any other hatred-related motive. For example, paragraph 5, part 1 of Article 63, in terms of the punishment imposing principle, considers the circumstance as aggravating punishment and liability if any crime, prohibited by the Criminal Code, is committed with such motives as national, racial elements, religious hate or religious fanaticism. Articles, included in the mentioned three groups, by the modes of their definition of crimes, are in harmony with the 1st criterion, put in Part II of Guide((“Hate crime laws,” a Practical Guide. OSCE ODHIR. Full text can be found here: http://www.osce.org/odihr/36426?download=true)), which, as a guideline point, defines the substantive framework of hate crimes.
The Guide points out that the impact of hate crime is not solely aimed at persons of a concrete group. Persons, communicating with the given group or peceived as its members, or property that has any connection to given groups, as for example, human rights activists, community centers or the places of worship, also can become targets of hate crimes((Page 32, clause 3.)). That is why, disposition of relevant articles in the national legislation as a target of crime should include both physical persons and property((Section II, points 2.1.2 and 2.6.)). In this sense, the articles, mentioned in the top of the Criminal Code, define physical persons as targets of hate crimes, and Article 185 defines property. That is, the legislative elements are in correspondence with the requirements, mentioned in the Guide. As for the “connection” of victim to the target group or relevant “perception” as an element of available bias, courts are not constrained in the law-enforcement practice to interpret the motive of crime by that basis.
The 2nd principle, Part II of Guide, defines the protected characteristics that should be referred to as a bias and the criteria of their selection. As a rule, in legislations of the most countries, including the Criminal Code of Armenia, the belonging to racial, national and ethnic group and religious fanaticism are the most-widely defined protected characteristics. The gender identity, age, psychic or physical health (disability) and sexual orientation are comapartively less, but not seldom defined as protected characteristics. As for seldom defined characteristics, they are marital status, origin, property and social status, political affiliation or ideology and military service. The Guide notes that selection of protected characteristics must be made, based on the question whether social problems are available or not, and whether a historical oppression and discrimination have been displayed in relation to the given group of people with relevant characteristics. In addition, the Guide points out that the characteristics, because of which people are attacked, should be included as protected characteristics.((See point ?))
Taking into account the mentioned guiding document, the absence of a number of such characteristics, based on which attacks take place in Armenia, should be considered as an omission in the RoA Criminal Code. Judging from the domestic practice (see points 8.2.-8.5.), the most frequent characteristics are the sexual orientation and gender identity. Public polls prove that. Most respondents, questioned in the process of this research, noted the shortcoming of the legislation as one of the reasons why the statistics lacks the data on hate crimes. It is necessary to note here that many human rights NGOs (see above), as well as respondents pointed out thathate crimes in the Republic of Armenia are mainly committed with elements of sexual orientation and gender equality or belonging. It means it is absolutely possible that, frist, when a crimed would be committed with any of the mentioned motives, but not classified as such, as a result the degree of criminal liability could be disproportionally light; second, a criminial persecution might not be performed at all due to lack of elements of crime. Accordingly, relevant archives would lack data on such offences.
3rd criterion, Part II of the Guide requires that the offence be committed with a clearly-expressed hate motive, and in this sense it is necessary to differentiate hatred from discrimination: the offence may be committed with a discrimination motive, not having a hate element. In such a case, the offence will not be considered as crime, but can lead to a civil or administratice liability with relevant discrimination elelement. In this sense, in all mentioned articles of the Criminal Code the bias of offender as a motive is clearly expressed with hate or its synonyms “fanaticism”, “revenge” expressions. And the contrary, a victim’s personal or social characteristics, defined in Article 143, are not considered as hate motives. Although they are considered as discrimination motive.
It means that the Criminal Code clearly differentiates a crime with elements of hate (where the offender chooses the victim with a hate motive, based on any of protected characteristics) and discrimination (where an offender also chooses the victim, based on any of protected characteristics, but without hate motive), where the first one is regulated in the criminal law sphere, but the second one can be regulated in the civil law or administrative law spheres, as far as the laws or legal provisions on prohibition of discrimination do not necessarily define hate as a necessary element of discrimination.
In the above-mentioned context, it is necessary to pay attention to the circumstances, as mentioned above, and which are pointed out by international bodies((Footnote 4.)): Armenian legislation lacks a comprehensive law on prohibition of discrimination, and the regulation, related to prohibition of discrimination in the spheres of civil and administrative law, is insufficient. As a result, a person can remain without a means of legal protection from such an encroachment aimed against him/her, which would not have elements, required to be considered a hate crime, and instead be interpreted as an act of discriminative nature. For example, the hate speech can be displayed in such a manner that would not have elements, mentioned in Article 226 of the Criminal Code, but nevertheless might contain element of discrimination and violate the right of citizens to dignity. In such cases, due to the absence of a comprehensive legislation on discrimination, citizens actually claim for a legal protection by means of legal mechanisms of protection from insulting and defamation, as defined by Article 1087.1 of the Civil Code, which is not an effective mechanism of protection from hate speech, as far as that mechanism defines wide and specific possibilities to protect the freedom of speech, which impedes claiming for an effective legal defence from hate speech. In addition, it is necessary to take into account that hate speecin is defined as a separate category in both the administrative law and the civil law.
The 4th criterion, Part II of the Guide demands to remove the principle, according to which it is required that membership of the victim of crime in the given ethnic, national, racial, religious group be considered an objective element of crime. In practice it means that when a victim of crime does not belong to any of the mentioned groups and does not have characteristics of any of these groups, but the person was selected as a victim on the basis of supposition of belonging or association to any of those groups, than a crime committed against such a person may be not considered as a hate crime due to the absence of an objective feature. The sudy of relevant articles of the RoA Criminal Code shows that such an approach was made in Article 143, where an objective element of crime is the possession of a concrete characteristic by the victim: gender, race, ethnic origin, etc. However, in other articles, the corpus delicti with its objective elements do not require from a victim to have such characteristics: in these articles the focus is aimed at the motives of a perpetrator. Article 226 of the Criminal Code does not confine the objective elements of the corpus delicti with such circumstances as the victim’s nationality, race or religion. To the contrary, the objective element is based on the perpetrator’s intention, regardless the characteristics of a person or group persons, against who or whom the offense was aimed. The same is true with other articles and evauating characteristics, defined in these article. Articles 104(2)(13), 112(2)(12)), 113(2)(7), 119(2)(7)), 185(2)(4), 265(2)(2)) of the Code define the evaluating characteristics by motives of the offence (the motives of national, racial or religious hate or religious fanaticism), and not the by the characteristic of the victim of crime. The same is related to the general rule, defined by paragraph 6, part 1, Article 63. However, in that sense, problematic may be Articles 392, 393 and 3971, which define the characteristics of the target group of crime and not the motive as an objective element of the offence.
Evaluating the legislation, it is also necessary to take into account the recommendation of the UN Committee for Elimination of Racial Discrimination (point 6.1.1. on the top) and recommendation of the European Commission against Racism and Intolerance (point 7.1.1.) to Armenian authorities on improvement of paragraph 4, part 2, Article 226 of the RoA Criminal Code. These two bodies recommended to improve the mentioned provision and to consider as a criminally persecuted offence such acts as creation and leadership of a group, supporting racism, assistance to such a group and participation in activities of such a group, where premeditation must be interpreted as defined in ECRI Comment #7. When this research was in the process of implementation, a concept of the new Criminal Code was published,((See, for example, recommendations of the UN Committee on Elimination of Racial Discrimination to Armenian authorities (paragraph 6.1.1, part 3).)) envisaging to subject legal persons to criminal prosecution as well. The mentioned reform will provide the opportunity to perform the above-mentioned obligation.
12.2. Domestic practice
According to the data, provided by the Information Center, not a single case of hate crime was registered in 2014 (Addendum 5). The same source informs that such crimes were not registered in 2012, 2009, 2010, 2006-2007, one crime was registered in 2005, two crimes in 2008 and also two ones in 2011. Such data, as a rule, do not raise trust of international bodies in the sense that probably due to insufficient legislative regulation, public awareness or system other problems the acts that objectively possess elements of hate crimes are not registered as such and appropriate reaction of law-enforcement bodies does not follow.((See, Vejdeland and Others v Sweden, #1813/07, 09.02.2012, § 55). See also Guide for Armenian lawyers on the legal protection modes related to discrimination cases, elaborated within the framework a program of the Council of Europe, p. 7. Full text can be found here: https://rm.coe.int/CoERMPublicCommonSearchServices/ManifestationDCTMContent?documentId=09000016802fc15c )) Let us analyse whether such concerns are grounded or not.
According to the data, provided by NGOs, cases that can be characterized as hate crimes occurred in 2014. The Committee for the protection of the freedom of speech insists that hate speech is spread in the press, and according to data of the past year, 1% of all studied news materials contained hate speech (point 8.1.). However, as it was noted above, it is necessary to take into account that the hate speech can objectively cause civil and administrative consequences and such cases should not be regulated exclusively within the frameworks of criminal law.((Situation with the rights of LGBT persons. Annual report, Armenia 2014. May 2015. Public Information and Need of Knowledge NGO. The full text of report can be found here: http://www.pinkarmenia.org/publication/2014lgbtsitrep_hy.pdf)) That is why the mentioned data should be treated with reservation.
Human Rights Watcհ international human rights structure and the Ombudsman’s office singled out the offences related to sexual orientation and gender identity, which were crimes by their elements; however, not a single case with such facts has been registered to be followed by criminal proceedings (points 8.3 and 8.5). Such acts as threats of violence, publicly addressed to women activists in relation to their human rights activity, as well as public appeals for revenge against them, objectively contain hate crime elements. However, it should be reminded, as it was pointed out above, the gender element (see 2nd criterion, Part II of the Guide) or the circumstance of affiliation with a group of people with such an element (4th principle, Part II of the Guide) are not defined by Article 226 of the Criminal Code, as well as relevant other articles, as an objective element of crime. Consequently, even if a criminal prosecution was carried out, maximum that there could be made under such circumstances, is to subject a person to a criminal liability by Article 137 (murder, infliction of heavy damge to health and desctruction of property) without a hate motive that might toughen the liability. As a result, the person would undergo punishment in the form of a fine or sentence for maximum a two-year imprisonment, which is substantially lighter than if that offence had an objective element of hate motive: in that case the liability would be much stronger. Probably, it is due to the mentioned shortcoming of the law that criminal proceedings were not instituted in relation to the mentioned facts with hate motivation and, correspondingly, relevant data were not entered into archives. The situation could be improved by Article 143, defining a criminal liability for violation of fundamnetal rights of a citizen with any element of “personal or social nature”; however, that article envisages punishment of a similar severity, as the above-mentioned one. In addition, this article does not point out the mentioned element as a hate motive, so it cannot be considered as an effective measure of legal defense.
The above-mentioned point can be stressed in relation to representatives of a sexual minority or persons, affiliated or supposedly affiliated with that group. According to the information of Human Rights Watch organization and Ombudsman’s office, members of the LGBT community are subjected to persecution, physical and psychological violence, and the relevant hatred propaganda is widely spread in mass media and social networks. Acts of persecuion and violence are committed against them not only by ordinary citizens, but also officials, in particular, policemen. Even Deputies of the National Assembly are capable to use hate speech and display intolerance when making statements in the parliament. In the annual report of 2014 on the rights of LGBT persons, there are numerous descriptions of the above-mentioned cases.((See in the information system www.datalex.am the lawsuit #YeKD/0086/01/13, criminal case # 0086/01/13.)) These cases with relevant elements can be objectively qualified by criteria, mentioned in Part IV of the ECRI Commentary, as hate crimes. However, the absence of sexual orientation as a protected characteristic in articles, defining hate crimes in the Criminal Code, makes their application impossible. As a result, at best articles related to the threat of violence would be applied, while they envisage a substantially light punishment. Even more, there can be decided to remove such cases from the criminal law and bring them to the field of civil law.
Let us discuss two examples to substantiate the above-mentioned thesis. Some years ago the case of DIY club was in the focus of public: two young brothers burned a pub club, which was well-known for tolerance towards the sexual minority. In the end both young persons were sentenced in conformity with paragraph 1, part 3, Article 185 of the Criminal Code: willful destruction or infliction of damage to other’s property. They were convicted for a two-year imprisonment. However, the court of first instance, on the basis of Article 70 of the Criminal Code, applied a conditional punishment, followed by granting a pardon on the part of the Court of Appeal, and they were released from punishment((See: http://iravunk.com/index.php?option=com_content&view=article&id=16435:2014-05-17-16-18-23&catid=41:lurer&Itemid=57.)). This case is specific, because despite the the fact that it was very-well known from information, widely-spread in mass media and social networks, that the offence was motivated by young men’s hatred towards the community of sexual minority, and it was not refuted either by them or by political and public groups, which suppored them and even encouraged that act, the investigation of the case was not conducted with the aim of revealing probable motivations of discrimination or hatred. However, even such an attempt was made, paragraph 4, part 2, Article 185 defines hatred motivations only with national, racial and religious elements: there is no substantive ground to be referred to the element of sexual orientation. It would have led to the impossibility of instituting a criminal proceeding and subjecting to criminal proesecution because of the absence of substantive grounds for a hate crime. In addition, the general norm, defined by paragraph 6, part 1, Article 63 of the Criminal Code, would also be inapplicable, as far as it also defines that hatred motives within the above-mentioned frameworks, ruling out the gender, sexual orientation as characteristics to be defined as a separate substantive ground. As a result, two young men, who committed a crime in the manner, dangerous for life, and with hatred motive, were subjected to an extremely disproportionate punishment. They were released soon. Even more, the trial was conducted by an accelerated procedure (without examination of proofs, questioning witnesses, etc.), which could be justified only by acceptance of the guilt and compensation for the property damage. Meanwhile, if the crime had a hate motive, the mode of trial should have been changed (with the need of a complete judicial investigation of the case) with the emphasis of dangerous nature of the act, substantially more severe punishment, and ruling out of the conditional punishment and exluding of any pardon.
The second example relates to the following facts: On May 17, 2014, www.Iravunk.com online mass-media site published an article((
Up to date several manuals, Guide, studies on prohibition of discrimination have been published in Armenian. The Lawyer’s School has already elaborated and put into operation a comprehensive training course on prohibition of discrimination since July of this year.)) entitled “They serve the interests of international homosexual lobbying: the black list of enemies of the people and the state”. It was written by editor-in-chief of the mentioned media Hovhannes Galajyan. In the article he made public personal data and Facebook addresses of almost 60 persons (so called black list), and appealed from the pages of his newspaper to display “zero tolerance” in regard to them. In particular, he appealed to “ordinary people” to break contacts with such persons; to “state officials” – not to give opportunity to impact the public opinion; “to headmasters of educational institutions” – not to allow to educate children. The author also noted that their activity should be banned in more spheres than he mentioned in the article. Persons, included in the “black list”, according to the author, defended the interests of sexual minorities or expressed the opinion that their rights should be respected, or, were percepived as such by the author of the article, based on some stereotypes. It was unprecedented, taking into account two aspects: a person made a public appeal to segregation, and it was made by an editor-in-chief of a media. Soon after publication of the article, two groups of citizens in different periods of time applied to two civil courts with the claim of legal defence by two grounds: first, the author displayed discrimination in regard to them, and second, the author publicly offended them. The court fully rejected the application on the case of the first group, classifying the article as an exercise of the journalist’s right to the freedom of speech, and that right was exercised by expression of highly critical judgments regarding the phenomenon, posing public interest. The second group’s application was also rejected by the court on the discrimination ground, justifying its decision by the absence of relevant substantive ground in the Civil Code. However, the court satisfied the application by another ground, stating that the author of article offended the honor and dignity of claimants. At present, the court case is still in process at higher judicial authorities.
Analysis of this case actually can show the real picture of legislation and practice. Author of the article made a public appeal to manifestation of enmity towards a group of people, selected on the basis of just his own impression that they are a part of sexual minority groups or are occupied with protection of their rights. Objectively, both elements are available: the first one is element of crime, according to the Criminal Code, and the second one is bias as a motive. However, in order to consider this act as a hate crime on the ground of Article 226 of the Criminal Code, the act aimed at inciting hatred (in this case, a public appeal to segregation) must be committed against a person of a group of people, selected or chosen on the grounds of his/ her or their ethnic origin, race or religion. Meanwhile in this case selecting the target group was based on their sexual orientation, i.e. supposition of affiliation with a group of sexual minority or relevant perception, which is not defined by Article 226 as an objective element of crime. As a result, Article 226 cannot be applicable in relation to the given case. In addition, the aggravating circumstance, defined by paragraph 6, part 1 of Article 63, also will be inapplicable here, because the motives, defined by this general norm, refer only to national, racial or religious characteristic. As for Article 143, as it was mentioned above, this article indicates “personal or social” characteristics as the protected characteristic of the object of crime, not the hate motive of a person, who committed the crime. In addition, this article defines a punishment of almost the same severity, as the one, by which the criminal prosecution was conducted in relation to the above-mentioned case. Thus, imperfection of the legislation will not allow to institute a criminal proceeding regarding the mentioned statement, which, however, is objectively a hate crime. Propably, it is the reason why the authorities did not institute a criminal proceeding in relation to these public statements, and citizens had to seek legal protection in the sphere of the Civil Code. However, the measures of legal protection here are also ineffective. First, the Civil Code does not contain a provision on prohibition of discrimination. It means that the court will reject the demand of a party to appear as a victim of discrimination due to the lack of the substantive ground (which in fact took place in this case). Second, citizens will have to apply for protection from offence on the grounds, mentioned in Article 1087.1 of the Civil Code, which is a complex mechanism with numerous provisions on the journalist freedom, which are able to cause some obstacles.
Thus, the mentioned examples, as well as the comprehensive analysis of the practice with legislative regulation show that due to the imperfection of legislation, some criminal acts can remain beyond the Criminal Code, causing an impression that hate crimes are not committed, or even if they occur, their number is insignificant.
12.3. Analysis of questionaries
Authors of this Report elaborated a questionary, which was answered by human rights activists, advocates and lawyers. The questionary was sent to the public bodies concerned. Answers were given in July-August of 2015.
The main questions are given below:
1. Is it possible, according to you, that crimes with such elements are nevertheless available, but due to the lack of appropriate mechanisms they are not revealed or not classified as such? If it is true, which of the reasons, listed below, are well-grounded?
2. According to you, is there any body in the Republic of Armenia to be occupied with monitoring of hate crimes, collecting a unified statistics (e.g., statistics of legal proceedings), etc. If yes, could you mention such bodies?
3. According to you, by which of the offences, listed below, hate crimes committed Armenia should be grouped?
4. According to you, are any statistical data collected allowing to determine in relation to which of the spheres, listed below, dangerous manifestations of intolerance are available most of all? If you have no data, which of the spheres, listed below, are actual for Armenia?
5. Is it necessary to adopt a special law on hate crimes in Armenia?
6. Is there a need to organize special courses on hate crimes for law-enforcement bodies, lawyers and civil society activists?
Additional questions have been addressed to law-enforcement bodies:
Most of respondents noted that the insigificant quantity of data on hate crimes or their absence can be explained by a number of circumstances: poor awareness of population on racism or uneasiness when informing the police about a relevant crime. Insufficiency of the legislative regulation was also mentioned, because of which an offence is often not classified as a hate crime. Such opinion was expressed by representatives of almost all specialized groups: representatives of the civil society and members of parliament, government officials, officers of law-enforcement bodies, lawyers, etc. However, officials of government bodies mostly noted that the quantity of data must be explained by the number of relevant acts, i.e. the data is little due to scarcity of such crimes. The Prosecutor’s Office answered that every year relevant information on the number of such crimes is provided to the Ministry of Foreign Affairs by its request to be passed to the OSCE office. The most concrete data was provided by the head of the Information Center of the Police. He pointed out in the letter that the Center registered 6 cases of hate crime since the year of 2005. As we already noted, this number does not correspond to annual reports of the Prosecutor’s Office, mentioning up to twenty criminal cases with elements of hate crimes in a year. We can explain such a difference in numbers by the fact that the Prosecutor’s Office included those legal proceedings into its annual reports, which were instituted by the case of crime, which, however, were not followed by a criminal prosecution; meanwhile, the Information Center registers only the data, related to a concrete physical person, i.e. defendant, convict or wanted.
Most of respondents noted that they had no information about any centralized body to be occupied with registration of hate crimes, collection or processing of relevant data. Some governmental bodies mentioned just the Information center. Answering to the question about the necessity of setting up a special body for permanent monitoring of hate crimes, registration and processing of relevant data, some of respondents pointed out that such a body is needed; meanwhile others mentioned that it is not required, as far as there are several bodies, the legal duty of which is collection of crime statistics. In this sense, it was recommended that the same bodies or one of them to collect the proposed statistics, slightly modifying or improving the mode and basics of statistics collection through introduction of a separate category for hate crimes with its subtypes. They pointed out as an example the practice of Judicial Department, which in the process of statistics collection and summarizing all legal cases by the spheres of criminal, civil and administrative law, at the same time presents the particulars, for instance, on each type of crime, defined by the Criminal Code. Meanwhile, depending on the problems available in the given sphere, the Council of Courts Chairmen can carry out a quality analysis and evaluation of data. And finally, instead of creating a new body, it is proposed to make some qualitative changes in the functions of the Judicial Department or a body, performing similar duties, and acquire the desired result. As an alternative, they mentioned the Information Center of the Police or relevant department of the Prosecutor’s Office, which prepares annual reports to present to the National Assembly. The mentioned proposal seems most interesting as related to the RoA Prosecutor’s Office: taking into account the supervising functions of the Office, and the requirement of the Constitutionon on presentation of annual reports by the Prosecutor General of the Republic of Armenia to the National Assembly.
A large part of respondents noted that they see the most dangerous manifestations of intolerance in the cases, related to religious beliefs, gender identity and sexual orientation. As for race, age, skin color, health condition, respondents answered that they have no information about hate crimes with such characteristics. The above-mentioned aspect comes to prove our conclusion that it would be necessary to incorporate the indicated characteristics into the farmework of protected characteristics in relevant articles of the Criminal Code (for example, Article 226).
The vast majority of respondents noted that there is no need to adopt a stand-alone, special legislation on hate crimes, as far as available legislative regulations (mainly in the Criminal Code) and the prospects of adoption of a special law on prohibition of discrimination are completely enough to provide a comprehensive solution of the problem, and as a result, to ensure an effective system of legal protection. In this sense, reformation of the Criminal Code was also pointed out. In particular, it was mentioned that a concept of the new Criminal Code has already been published, according to which, the proposed new solutions, related to the types of crime, degree of gravity and other elements in the new Criminal Code, are able to substantially improve the effectiveness of legal regulation as regards to hate crimes.
As for the courses, there was almost ful unanimity. The vast majority of respondents are of the opinion that courses are needed for all professional groups, as fas as they will contribute to better understanding of the sphere, spreading the basic knowledge on the matter, training relevant specialists. Views also voiced that training will promote development of this sphere by means of strategic litigation.
Based on the results of the research, we present recommendations, given below:
1. It is recommended to create a system of collection, processing and registration of hate crimes within the structure of the Prosecutor’s Office with the inclusion of such data in annual reports of the Prosecutor’s Office. It is all the more reasonable, taking into account that once in a year Prosecutor General is obliged to present a report to the National Assembly, providing not only statistical and substantive data, but also mentioning structural problems.
2. It is advised to supplement Article 226 of the RoA Criminal Code not only those basics, recommended by the European Commission against Racism and Intolerance (creation of, leading, support to a group, promoting racism, participation in activities of such a group), but also such protected characteristics as gender identity and sexual orientation, as far as according to facts, the acts, prohibited by the Criminal Code, are often perpetrated with hate motivation, related to the mentioned characteristics. It is advisable making a similar supplement to paragraph 6, part 1, Article 63 of the Criminal Code.
3. In the fields of Civil law and Administrative law, it is recommended to create comprehensive mechanisms for legal protection against racism, regardless the fact that in many legal acts, regulating the mentioned spheres, there are provisions, related to the racial discrimination. This problem can be also solved by adoption of a comprehensive law on prohibition of discrimination.
4. In case of impossibility to carry out the above-mentioned, as the least required thing, it is necessary to make the hate speech as a protection object within the civil law, if such a speech has no elements, defined by article 226 of the Criminal Code. To this end, it is recommended to define substantive grounds in the Civil Code, as far as the structure of article 1087.1 of the Code (in particular, the concept of “abuse”) is objectively unable to provide an effective opportunity for the legal protection from such offences.
5. Taking into consideration the low-level legal awareness of the society, it is recommended to organize continuous courses on hate crimes for civil activists, human rights advocates, journalists, law-enforcement officials. To this end, it is proposed to work out a unified program of training courses to be based on available resources and utilize the adults education methodology.
