In response to a request made by the Constitutional Court of Armenia, the ECHR has published an advisory opinion.
Armenian Constitutional Court has asked the following questions:
1) Does the concept of ‘law’ under Article 7 of the Convention and referred to in other Articles of the Convention, for instance, in Articles 8-11, have the same degree of qualitative requirements (certainty, accessibility, foreseeability and stability)?
2) If not, what are the standards of delineation?
3) Does the criminal law that defines a crime and contains a reference to certain legal provisions of a legal act with supreme legal force and higher level of abstraction meet the requirements of certainty, accessibility, foreseeability and stability?
4) In the light of the principle of non-retroactivity of criminal law (Article 7 § 1 of the Convention), what standards are established for comparing the criminal law in force at the time of committal of the crime and the amended criminal law, in order to identify their contextual (essential) similarities or differences?”
In response to a request for an advisory opinion made by the Constitutional Court of Armenia, the Court delivered, unanimously, the following opinion:
The Court, delivering its second advisory opinion after Protocol 16 to the European Convention on Human Rights came into force in 2018, held that it could not answer the first two questions put by the Armenian Constitutional Court.
In particular, it could not find any direct link between the questions and the ongoing domestic proceedings, which have been brought against former President Robert Kocharyan for allegedly attempting to overthrow the constitutional order in 2008.
The Constitutional Court’s third question was whether a provision which defined a crime and referred to a legal act with supreme legal force and a higher level of abstraction could meet the Convention requirements of certainty, accessibility, foreseeability and stability.
The Court concluded that using the “blanket reference” or “legislation by reference” technique in criminalising acts or omissions was not in itself incompatible with Article 7.
The two provisions – the referencing provision and the referenced provision – read together, had to enable individuals to foresee, if need be with the help of legal advice, what conduct would make them criminally liable. This applied equally to situations where the referenced provision had a higher hierarchical rank in the legal order or a higher level of abstraction than the referencing provision.
Among other things, the most effective way of ensuringclarity and foreseeability was for the reference to be explicit and for the referencing provision to set out the constituent elements of the offence.
The Constitutional Court’s fourth question concerned the criteria under Article 7 (no punishment without law) of the European Convention for comparing two different versions of a legal act for their compatibility with the principle of the non-retroactivity of criminal law. The Court found that such assessments had to take account of the specific circumstances of the case (the principle of concretisation) rather than be carried out in the abstract.
