Lawyer: "Material Interest" clause in Armenia`s Criminal Code  weaponized against opposition

ArmInfo. The inclusion of "material interest" (with regard to participating in rallies) as a criminal offense in Armenia's Criminal Code serves solely the  interests of the ruling Civil Contract party, according to  lawyer Varazdat Harutyunyan. Speaking at a Yerevan press conference titled  "Corruption in the Pre-election Period," Harutyunyan warned that the current administration is  using this legal loophole against  political opponents ahead of June's parliamentary elections. 

The lawyer noted that the criminal law provision in question is  virtually unprecedented in international legal practice. He recalled  that the amendments in question were made to the Armenian Criminal  Code in 2021, adding a new element "material interest" to the  provision on coercing a person to participate or not participate in  assemblies.

The lawyer argues that this unique phrasing has no equivalent in  international standards and effectively allows the state to restrict  and criminalize standard political mobilization. ""Initially, this  norm was not flagged as a violation of international standards due to  a mistranslation sent to the Venice Commission. In its inquiry,  Armenia's Constitutional Court used an English translation that  deviated from the original Armenian text. It introduced the word  'coercion,' which distorted the true meaning of the clause. Believing  the law was strictly about stopping the forced coercion of citizens  to attend rallies, the Venice Commission issued a positive opinion,"  the lawyer clarified.

 After the amendments were introduced, the lawyer noted, Avetik  Chalabyan, coordinator of the Hayakve initiative, was arrested for  the first time under this article in May 2022 (he was accused of  providing financial incentives to the head of the student council at  the Agrarian University in order to attract approximately two  thousand students to protests   ed.). "The defense pointed out that  the relevant amendments were only supposed to take effect in July  2022, meaning that at the time of the arrest, the 'material interest'  component was still essentially absent from the current version of  the article," the lawyer said.

At the same time, Harutyunyan noted that the practice of providing  material incentives for participation in public events is widespread  worldwide. Specifically, the lawyer noted, in the United States,  there are specialized organizations and campaigns dedicated to  attracting people to mass events and providing extras.

In this sense, the state should not interfere with a person's  motivation to participate in a rally unless there is an element of  coercion. However, following the Chalabyan case, other criminal cases  were launched against various individuals specifically on the grounds  of "material interest" in organizing participation or  non-participation in rallies. The basis for such cases, as a rule,  was wiretaps published by the Investigative Committee, which were  mostly doctored," the lawyer noted.

Harutyunyan mentioned that in August 2024, the parliamentary  opposition appealed to the Constitutional Court to review the  constitutionality of this provision. However,  in October of that  year, the court suspended consideration of the case to request an  advisory opinion from the Venice Commission. "The Constitutional  Court stated that freedom of assembly includes three protective  components: a person's real opportunity to participate in rallies,  the absence of obstacles to such participation, and the individual's  internal freedom and motivation to participate. It was this last  component that was introduced to justify the constitutionality of the  disputed provision," Harutyunyan asserted.

The lawyer characterized this approach as a manifestation of "legal  paternalism," where the state begins to interfere in the personal  motivations of citizens. According to him, this contradicts the very  logic of freedom of assembly, since the state's task is only to  ensure the possibility of participation in rallies, and not to  control the reasons to participate. He emphasized that there are no  similar precedents in international practice. Harutyunyan explained  why the Venice Commission allowed for certain restrictions on  material incentives during election campaigns. "This is due to the  need to ensure equality of opportunity between political forces, for  example, during election campaigning, since wealthier participants in  the electoral process are able to organize large-scale events and  thereby gain an advantage over competitors without comparable  resources," Harutyunyan stated.

According to the lawyer, the court's decision partially defined the  framework and made it clear which expenses would not be considered a  violation of the law, although it did not, in essence, resolve the  issue, as it only benefits the ruling party, which continues to use  it against its political opponents. "As a result, any recordings of  conversations that mention money, even if they are not directly  related to political processes, can be used as grounds for  accusations. This creates a 'freezing effect' that limits citizens'  participation in political life and ultimately serves as a tool of  political pressure," Harutyunyan concluded. 

Recall, on May 14, 2022, activist Avetik Chalabyan was arrested on  suspicion of financially incentivizing the head of the Agrarian  University's student council to attract 2,000 students to protests.  Notably, Chalabyan was charged with acts that were not considered  crimes at the time they were committed. Later, the Venice Commission  recognized that the Armenian authorities had used the clause in the  Armenian Criminal Code on "material interest in participating in  assemblies" to imprison their opponents, although initially, due to a  mistranslation, it had deemed it consistent with international  standards and consistent with restrictions on freedom of assembly.