On the last day of termination of its powers, on July 30, the National Assembly of the 7th convocation passed the bill criminalizing swearing. According to the bill, a new article is added to the RA Criminal Code – 137.1 (“Serious insult”), that is, insulting a person seriously, cursing or insulting his dignity in another extremely indecent manner is punishable by a fine of one hundred to five hundred times the minimum wage. The bill envisages 1 to 3 months of detention.
According to the same article, public activity is “the conduct of a person in connection with journalistic, publicist activity, performance of official duties, public service or holding a public office, public or political activity.”
Lawyer Ara Ghazaryan, a specialist in international law, claims that at least 1-2 provisions in the adopted law contradict PACE Resolution 1577, which states that imprisonment should not be envisaged as a type of punishment for defamation.
The title of Resolution 1577 of the Parliamentary Assembly of 2007, “Towards the decriminalization of defamation”, is the title of a document of a politically binding nature. In general, the PACE seldomly puts such headlines, that is, the European public order today moves toward decriminalizing,” says the international law expert, emphasizing: “It must be eliminated immediately. We did it in 2010, but, in fact, we are returning to an area, for which the Council of Europe will definitely mark, “remove imprisonment as a sanction, as a type of punishment.”
According to him, this law can regulate this vicious phenomenon in the society in general, but at the same time it strongly clashes such a delicate sphere as journalism.
“And the journalists who have to overcome such obstacles to be able to deliver their word, including the word that may contain a curse, but, in the mean time, has an arty value. After all, no one can answer the question ‘what is swearing’? Because, say, “The Bastard of Istanbul ” is also a curse, but it is the title of an artistic work of a world value. Therefore, it must not be taken out of context,” says the expert, adding that his proposal has always been to decriminalize defamation and criminalize hate speech even more.
According to Boris Navasardyan, head of the Yerevan Press Club, one of the problems with this law is that there is a lack of certainty. “In terms of definitions, because swearing or inflicting extreme insult are not the concepts that can be unequivocally understood in court practice. And the risk of selective, non-professional decisions is quite high. And, secondly, it of course also creates inequality in terms of protection among citizens of public figures, whereas the opposite should be the case, that is, public figures should be much more tolerant in the case of sharp, even provocative expressions against themselves. Here, we have the contrary: the protection of public figures is much higher than that of citizens,” said Navasardyan.
In his opinion, there are still chances for the law to be sent to the Constitutional Court under public pressure, to be recognized as unconstitutional. Navasardyan also shares the approach defined by the PACE resolution that insult should not be criminalized
Shushan Doydoyan, President of the Freedom of Information Center, considers unacceptable the fact that the law was adopted without taking into account the journalistic community. “We say that the community should be involved, should participate in the decision-making related to itself. The journalistic community was not involved in the development of this hasty project at all and its opinion was not included in the final text,” Doydoyan stressed, continuing:
“I do not imagine a situation in which a person can be deprived of his/her liberty due to exercising his/her right of free expression. And provision 3 of the [law] envisages arrest. This is also incompatible with democratic values. We seem to be returning to 2010, when defamation and insult were decriminalized in May.”
Media expert Samvel Martirosyan also sees a problem of certainty, as swearing or insult are often difficult to qualify or assess. “Therefore, there is a possibility that it will leave a lot on the court’s inclination. And when such uncertainty arises, it can become a mechanism of political pressure against the same journalists or against some activists, etc.,” Martirosyan said.
According to him, the authorities immediately started a legal fight, ignoring other methods.
“Cursing is a result of an extremely difficult internal political situation, because the camps are confronted in the political field. That atmosphere should be changed instead of fighting against some consequences. Moreover, the problem is that a very serious division of camps has taken shape in the society, and the rest are already secondary occurrences. If you do not fight against internal division, the cosmetic battles will have no consequences,” Samvel Martirosyan concluded.