Usually portrayed as a unique humanitarian gesture on behalf of the government, amnesty has been predominantly practiced in those countries where judicial institutions are undermined by corruption, where the rule of law does not prevail, where judges are systematically pressured, and laws are selectively enforced.
Following the events of April-May of 2018 that came to be known as Armenia’s non-violent Velvet Revolution, which toppled Serzh Sargsyan’s decade-long presidency, public expectations of amnesty were revived. However, there are those working in the field, who feel that granting amnesty is not addressing the core issue. “I want to believe that this is the last time amnesty is being implemented because in Armenia where the rule of law prevails, amnesty will no longer be needed,” said Avetik Ishkhanyan, the Chair of the Helsinki Association in Armenia.
International practice shows that amnesty has been common in different parts of the world, from Latin America to Eastern Europe, but the scope of application is what makes it distinct in each case. Armenia, similar to its neighbouring countries - Georgia, Turkey, and Azerbaijan has extensive experience in granting amnesties, usually ahead of holidays and anniversaries celebrated nationwide. Since independence, nine amnesties have been declared in Armenia, one of which followed demands by the Parliamentary Assembly of the Council of Europe (PACE) to release political prisoners, who were imprisoned following demonstrations against the disputed 2008 presidential elections. The latest and expected amnesty was declared in 2018 on the occasion of the 2800th anniversary of Yerevan’s establishment and the 100th anniversary of the First Republic of Armenia.
Then Acting Minister of Justice, Artak Zeynalyan announced the largest amnesty in the history of Armenia’s third republic, affecting about 6500 individuals in October of this year, which was ratified in parliament on October 31. They included not only inmates, but also those who have been charged and are awaiting trial and others who are currently under investigation for a variety of charges. When presenting the bill in Parliament, Zeynalyan clarified that overcrowding in penitentiaries was not the reason for the amnesty, but rather portrayed it as a humanitarian act and an expression of goodwill. He noted that there are a total of 2888 convicts in all 12 penitentiaries across the country, while the number of available beds - 5346.
Ishkhanyan agreed that overcrowding was not an issue with respect to the latest amnesty, as was the case before, but that almost none of the penitentiaries comply with international standards and a distinction between shared and personal space is not respected (except Armavir penitentiary institution which was recently renovated). The Council of Europe’s Committee for the Prevention of Torture determined the exact minimum amount of space that each prison inmate must be provided in a cell, which is 6m2 of living space (plus sanitary facility) for a single-occupancy cell, or 4m2 per prisoner (plus fully-partitioned sanitary facility) in a multiple-occupancy cell.
Ishkhanyan noted that when announcing the bill on amnesty, Zeynalyan said that it had been drafted and ready months earlier, that is since May. In this context, it seems logical and justified to question the humanitarian nature of the bill, when, in fact, the suffering of convicts was artificially prolonged. “I consider this as a clearly calculated political decision,” Ishkhanyan said. The discussions of the bill coincided with discussions about conducting snap parliamentary elections which Prime Minister Nikol Pashinyan justified by saying it stemmed from the expectations of the Armenian people and potential investors. “The timing of the amnesty shows that the objective of the new government was to receive the support of the convicts and their relatives, who were going to be affected by the law,” claimed Ishkhanyan. With the same logic he believed that if snap parliamentary elections were scheduled in May 2019 instead, the adoption of the bill on amnesty would most probably have been postponed.
According to the President of Social Justice NGO, Arshak Gasparyan, the new law on amnesty is quite similar to the ones adopted in 2009, 2011, and 2013 and the claims by the Government that the one announced in 2018 has unprecedented social guarantees is misleading. One of the noteworthy changes is that the new amnesty affected persons who have been sentenced to maximum six years and have three or more minors, while the one declared in 2013 does not include that provision. Another provision of the law had to do with the group of armed men (more than 30 members), calling themselves Sasna Tsrer (Daredevils of Sasun), who seized a police station in the Erebuni district of Yerevan in July of 2016, occupying it for two weeks before laying down their guns and surrendering. As a result, one policeman was killed in the initial attack and another officer during the ongoing siege.
A similar attempt of plotting an armed seizure of power happened in 2015 by a criminal group headed by Artur Vardanyan, which came to be known as the Nork group. Similar to Sasna Tsrer, the group illegally acquired, stored and transported a large number of weapons, ammunition, and explosive devices, and allegedly planned attacks against high-ranking officials including then President Serzh Sargsyan in order to obstruct the potential deal on Nagorno-Karabakh and achieve change of power. But unlike Sasna Tsrer, secret service investigators discovered the plans of the Nork group and its members were subsequently apprehended and charged. Gasparyan believes that the reason why members of Sasna Tsrer were included in the amnesty law, while members of Nork group were not was politically motivated. “Political in the sense that the roots of the revolution can be traced back to the events of July of 2016, which had their culmination in April of this year,” he added. It can also be explained by the large public support that members of Sasna Tsrer enjoy.
The law also stipulates that amnesty will be extended to the members of Sasna Tsrer, only if the physically affected victims of the group’s actions do not object to it and the number of those, according to Gasparyan, totals about 50 people. Those responsible for the death of two police officers will not be released by the amnesty. The law, however, does not specify what happens if the victims object to the release of a specific member of the group, which according to Gasparyan is quite problematic. From a legal perspective it is controversial because members of Sasna Tsrer have been charged under different articles of the Armenian Criminal Code, while in the amnesty law, they are perceived as one. This implies that even if one of the 50 victims objects to the release of even a single member of the group, the entire process will be impacted.
Institutional distortion is yet another concern that Gasparyan raised. “Before granting amnesty, the Government does not ask for the consent of victims and leaves the issue at discretion of individuals,” he said adding that in the case of the Sasna Tsrer, this did not happen. The key characteristics of amnesty is that only a state is authorized to grant it to a group of convicts charged for specific types of crimes and is aimed at shaping a positive attitude towards the state and justice system. “By asking the opinion of victims we distort the institution of amnesty,” Gasparyan claimed. “And if the state is willing to consider victims’ opinion, it is an indicator that the state itself is uncertain about the decision.” Besides, victims and affected stakeholders would almost always desire to see the accused punished, which would complicate the procedure of getting fair and logical punishments.
The issue of victims’ rights, in general, is much talked about when amnesty is declared and whether the justice system fails the affected stakeholders by releasing the convicts. Ishkhanyan said that the state should be concerned about the victims not by extremely punitive measures that bring into question judicial processes but rather by measures that would mitigate crimes by socially and economically marginalized sectors of society. Also, it would be logical to develop the mechanisms for probation and early release programs, as well as establish social services that would work both with victims and convicts to guarantee that they can continue living together in the same society.
As a member state of the Council of Europe, Armenia is required to enhance the independence and effectiveness of its judicial proceedings and overall access to justice, thus formally the mechanisms for early release have been developed, yet rarely implemented. “I know for a fact that President Robert Kocharyan and his successor Serzh Sargsyan were the ones determining who to grant amnesty to,” claimed Ishkhanyan. And it was practiced for two main reasons; to solve the issue of overcrowding previously in penitentiary institutions and to address the issue of political prisoners, both of which were requirements of European institutions.
Gasparyan further added that amnesty is the easiest way to disguise the mistakes of the ruling authorities, such as the inhuman or degrading conditions of penitentiary institutions and lack of rehabilitation programs. In most Western and Central European countries, however, the practice of amnesty has been abolished by law. Instead courts act independently and judicial processes guarantee a fair trial which increases overall public trust and confidence towards court decisions.
Similar to previous amnesty laws, the issue of prisoners sentenced to life-imprisonment was not addressed in the new law, which gave rise to public discontent. Ishkhanyan was expecting that amnesty would at least affect specific categories of those sentenced to life. He recalled that in 2003, when the Council of Europe demanded that the death penalty be de jure abolished, Armenia had 42 prisoners facing death sentences. Back then, amendments were made to the Criminal Code, and by the decree of then President Robert Kocharyan, the sentences of those 42 prisoners were changed to life-imprisonment. “This was a legal case as the President had the right to forgive the convicts but not determine their punishment,” claimed Ishkhanyan. “Instead, based on the act of pardon, the courts should have delivered verdicts for each prisoner individually.”
The second category of prisoners, which Ishkhanyan was expecting to see affected by the amnesty, include those who were sentenced to life imprisonment when they were under 21 years of age, the majority of whom were sentenced for crimes committed in military forces. “Our corrupt and unhealthy public morals are among the factors responsible for those crimes,” he noted. “Also, it is highly questionable how the cases committed in the army were investigated under the previous administrations.”
In February 2019, the Ministry of Justice will provide its final assessment regarding the implementation of the amnesty law. But moving forward, it is critical to remember that punishment has five purposes, including deterrence, incapacitation, rehabilitation, retribution, and restitution, and prioritizing just one out these five is full of dangers. In this context, the purpose of penitentiaries needs to be redefined, and instead of developing a system which can make convicts more aggressive, the goal should be to provide the necessary services so that the person who has been granted amnesty or served time in prison leaves the institution ready to be reintegrated into society.