Special Group Assessed Provisions of Criminal Code Draft
Open Society Institute Assistance Foundation has formed “Justice Group” comprising well-known lawyers and law enforcers, namely, Avetik Ishkhanyan, Hayk Alumyan, David Khachatryan, Arthur Sakunts, Artak Zeynalyan and so on. The Group considered the Draft Criminal Code of the RA, having performed deep analysis, and presented their most important observations, remarks and proposals.
Article 13 of the Draft Criminal Code (Extradition of persons who committed a crime) prohibits to extradite a person who committed a crime if the legislation of requesting country provides capital punishment for that type of crime. Besides Justice Group insists that the same provision must prohibit extradition if there are sufficient reasons to assume that person will be subject to tortures, cruel and inhuman treatment after the extradition. At the same time the Justice Group regards the provision as a procedural norm and due to this suggests to change it and place into the Criminal Procedure Code.
Article 30 of the Draft Criminal Code (Mistake in the factual circumstances of an act) regulates qualification of a crime in dependence on the opinion of the offender about the committed crime, particularly whether he considers that his crime includes aggravating circumstances or not. The same article provides that responsibility arises not only from dangerous consequences as a result of person’s action but also if it emerged by other reasons.
Concerning the circumstances precluding responsibility, namely, necessary defense the draft established that willful deprivation of life of the person, who committed willful illegal encroachment is not considered as exceeding the limits of necessary defense, in the event if no other means for protection from encroachment exist or defender does not know about their existence. This provision is arguable because the article does not take into account the level of danger and it threatens protection of internationally recognized right to life. Due to this jurists suggest to change the article and clarify margins of necessary defense in accordance with the level of danger.
In accordance with the article 43 (performance of an order on detection and prevention of crimes), infliction of harm upon the rights of the person protected under criminal law is not considered as a crime if the person executed the special order on detection and prevention of a crime or collection of evidence. According to the Justice Group, this definition does not clarify who can be involved in the mentioned activities. If this provision is provided for law enforcers and other persons involved in such activities by virtue of their position (ex-officio), such abuses are limited by other provisions. Thus the Justice Group believes that additional interpretation has to be given to this article.