The Ministry of Justice has circulated the draft RA Law “On Amendments to the Criminal Code of the Republic of Armenia”, by which it is proposed to make a corresponding amendment and regulation in Article 81 of the Criminal Code to the effect that the institute of active repentance can be applied in the presence of certain conditions, including cases involving grave and particularly grave crimes.

According to the current regulations, the Criminal Code sets a number of prerequisites for exemption from criminal responsibility based on active repentance. They are:

1. the person committed the crime for the first time,
2. the act is classified as a minor or medium gravity offence,
3. the person cooperates with criminal prosecution authorities,
4. does not contest the act he is accused of,
5. in case of causing damage, compensates for the damage caused,
6. in case of damage, compensates the damage caused in another way.

According to the draft law it is planned to supplement, Article 81 of the Criminal Code with a new clause 1.1 with the following content:

“1.1 If the crime committed by a person for the first time is classified as a grave and particularly grave crime, then in the presence of exceptional circumstances related to the role of the criminal, his behavior during the commission of the crime and after it, and other circumstances, he may be exempted from criminal liability if he cooperates with the authorities of criminal prosecution, does not dispute the act he is accused of, in case of causing damage, compensates or otherwise settles the damage caused by the crime. Both the individual mitigating circumstances and the combination of these circumstances can be recognized as exceptional.

It is concluded from the study of the draft, that as a result of the planned change, the range of persons with the possibility of being released from criminal liability may become unlimited, leading to a number of problems.

Referring to the draft, in an interview with Iravaban.net, lawyer Arnold Vardanyan mentioned that  the initiated legislative change is problematic for several reasons.

According to him, first of all, the justification of the legislative change is worrying. Among the justifications for the legislative change, the reduction of the workload of pre-trial bodies and courts is emphasized as a primary condition.

“Recently, we often witness that a number of legislative changes are initiated with this reasoning, which is definitely important. However, on the other hand, it should be stated that the reduction of the workload of pre-investigative bodies and courts cannot happen at the expense of the violation of the underlying logic and cornerstone principles of various institutes,” Vardanyan said.

The lawyer notes that in the justifications of the legislative initiative, “active repentance” is compared to another institute of imposing a lighter punishment than the one provided by the law, and the argument is put forward that “Considering the fact that the legislative body does not provide a limitation depending on the gravity of the crime for imposing a lighter punishment than that provided by law, we suggest not to provide such a limitation in case of active repentance.”

“The institute of imposing a milder punishment than the one provided by the law has nothing to do with the institute of active repentance and cannot have it. They have a completely different nature and purpose, and it is not permissible to initiate a legislative change by drawing parallels between them. In particular, if the institute of active repentance is the basis for exemption from criminal liability in general, then imposing a lighter punishment than the one provided by the law refers to merely imposing a lighter punishment on a person,” the lawyer said.

According to the expert’s opinion, as a result of mechanically including the legal conditions for imposing a lighter punishment than the one provided by the law in the regulation of active repentance, a number of other questions will arise (including, for example, by what logic is it permissible to exempt a person from criminal responsibility for grave or particularly grave crimes by applying the possibility of active repentance, but not exemption from criminal responsibility on the other grounds for example on reconciliation with the victim).

Arnold Vardanyan notes that the fact that the adoption of the mentioned legislative change will contradict the obligations and principles assumed by the international agreements was not taken into account in general.

“In particular, if the institution of active repentance  is applied to grave and particularly grave crimes without any exception, it will be applicable to international crimes, terrorism, enforced disappearance, violence by an official using official powers, torture or other crimes equivalent to it as well. Meanwhile, in relation to the mentioned crimes, the legislator even considered the application of the statute of limitations for exemption from criminal liability inadmissible, based on the legal positions of the European Court of Human Rights and other international standards.

Along with the above, it should be noted that when initiating the legislative change, the international experience regarding the institute of active repentance was generally not taken into account. Basically, due to its nature, the institute of active repentance is not applied in the majority of foreign countries in case of grave or particularly grave crimes. This is due to the traditional understanding of the institute of active repentance, also developed in academic sources, that in the case of grave or particularly grave crimes, based on the severity of the committed crime and the degree of public danger, regardless of the number of mitigating circumstances, repentance for the commission of the crime cannot be a basis for exempting a person from criminal responsibility. In the presence of such mitigating circumstances, other penal institutes may be applicable, but not active repentance.”

The lawyer concluded that taking into account the highly discretionary nature of the institute, the adoption of the proposed legislative draft is not only unfounded, but also in practice may lead to dual approaches and other risks, which instead of solving the existing problems, may cause new problems.

It should also be added that the prosecutor’s office and the courts will have the opportunity to exempt from criminal liability on this basis. This can lead to additional problems, in particular, a high risk of corruption.

In case of the entry into force of the draft, it is assumed that a number of petitions will be submitted by the lawyers to the competent authorities.

Based on its discretionary nature, the institute of active repentance is rarely used in practice, from which it again follows that the adoption of the draft will not lead to the relief of the burden on courts and pre-trial bodies.