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The Venice Commission adopted on Thursday an amicus curiae brief relating to Article 300.1 of Armenia’s Criminal Code which penalizes overthrowing the constitutional order requested by the country’s Constitutional Court.

For the amicus curiae brief, the Constitutional Court of Armenia has asked the Venice Commission five specific questions:

1) Do the offences against the constitutional order prescribed in the criminal laws of the member States of the Venice Commission contain references to constitutions or their specific articles?

2) How are the concepts of constitutional order, overthrow of the constitutional order, usurpation of power described in the relevant legal acts of the member States of the Venice Commission and, in particular, in criminal laws, and are there judicial interpretations of these concepts?

3) Which are the European standards for the requirement of certainty of a criminal law?

4) Do the legislations of the member States of the Venice Commission stipulate a similar offence to the one prescribed in Article 300.1 of the Criminal Code of the Republic of Armenia?

5) If so, which is the best practice from the perspective of legal certainty?

The Venice Commission’s secretariat has received information from most of the members of the Venice Commission with respect to the above-mentioned questions. As the material received is not comprehensive and shows significant differences in the issues addressed and the detail provided, the conclusions drawn can only be tentative.

According to the commission, when it comes to dealing with offences against the constitutional order (or its equivalent), national constitutions and legislation tend to vary among Venice Commission member states. In countries in which offences against the constitutional order – described as such – exist in the criminal law, an explicit reference to specific articles of the constitution seems to be lacking.

On the other hand, a number of constitutions explicitly refer to the duty of respecting the constitutional order, however while some define it

Nonetheless, the conclusion may be drawn that most (if not all because the terms used slightly differ as seen above) of the criminal law provisions implicitly refer to the constitution by citing certain constitutional principles, such as sovereignty, territorial integrity, principle of democracy, or by referring to certain constitutional institutions, such as parliament, institutions/government organs established by the constitution. By means of such references, criminal law provisions indirectly refer to the respective articles of the constitution that specify these principles or establish and govern these institution, the amicus curiae brief states.

In most member states, statutory provisions do not provide any legal definition of the concept of “constitutional order” or what would constitute “overthrowing the constitutional order” or the “usurpation of power”.

In conclusion, member states, for the most part, report that the statutory provisions governing these concepts have not been applied to this day. Therefore, there seems to be no common best practice as to the factual circumstances.

With respect to the prohibition of retroactivity of criminal laws and the requirement of providing sufficiently clear and precise definitions of criminal acts in laws, criticisms of imprecisions regarding the concepts of constitutional order and the overthrowing of the constitutional order might be appeased in the knowledge that there seems to be a convergence among the member states of the Venice Commission to leave these concepts undefined or imprecise. Hence, no conclusion can be drawn with respect to what constitutes a best practice from the perspective of legal certainty.

Nevertheless, in view of this principle and the principle of proportionality, it seems only reasonable to expect that the more broadly the statutory provision is worded, the more consideration should be given to the individual freedoms and basic rights of the accused. Such a provision should be interpreted narrowly, taking into account the principle in dubio pro reo, the amicus curiae brief concludes.

The Venice Commission says it remains at the disposal of the Armenian Constitutional Court for further assistance in this matter.