The Right to Life, the Prohibition of the Death Penalty

Is self-defense legitimized by the Constitution? The formulations of Article 23 of the draft Constitution have become a subject of broad discussions. In point 2 of the article "The right to life, the prohibition of the death penalty," it is stated that "Deprivation of life is not considered a violation of the cited article if it is a consequence of the exercise of such force that is absolutely necessary." There is a viewpoint circulating that the draft will again allow the application of the death penalty. Some believe that self-defense is being legitimized. What do you say about this? In this regard, yesterday, member of the Armenian Bar Association Hasmik Ohnikyan said:

– Article 23 of the draft directly prohibits the application of the death penalty; therefore, the concerns present in society in this regard are unfounded.

I believe that the provision relates to the institution of necessary defense, which is enshrined in the current criminal code.

The institution of necessary defense does not consider as a crime the act that causes harm to a person, and in exceptional cases, also causes death, which has been carried out against the aggressor in order to protect oneself from an equivalent attack or to protect the life, health, and rights of another person, as well as the interests of society or the state.

The current Constitution provides absolute protection for the right to life. In such circumstances, it turns out that the application of the institution of necessary defense contradicts the Constitution. The right to life cannot have absolute protection under the country's fundamental law on one hand, and on the other hand, the violation of that right in cases of extreme necessity should not lead to criminal liability.

- Then what is the reason for the existing anxiety in society?

- I believe that the anxiety is due to criminal prosecution, as well as distrust towards the bodies administering justice. The institution of necessary defense is applicable in our country, and therefore, as I have already mentioned, the application of the institution should not contradict the Constitution. The issue lies in the riskiness of the institution of necessary defense and the existing distrust of the public towards its implementers.

The various opinions expressed regarding the proposed provision itself indicate that the formulation is not unequivocally understandable. In this regard, perhaps the formulation should be clarified in such a way that it is evident from its content that the exception pertains to cases of necessary defense.

Moreover, most importantly, the Criminal Code clarifies the criteria for the applicability of the institution of necessary defense and the possible excesses of necessary defense.

The institution of necessary defense, if desired, can serve as an artificial basis for the prosecuting body not to hold a person who has committed a crime criminally liable; therefore, the application of the institution should be as predictable as possible.

The solution to the problem lies in predicting the mechanisms that ensure the objective application of the institution.

If the institution of necessary defense is applied in our country, it should not contradict the Constitution. In this regard, I believe that the enshrinement of such a norm in the Constitution is justified. However, I reiterate, the regulations regarding the institution should be such that they limit its unnecessary application.

RUZAN MINASYAN "Aravot" Newspaper

You can read the full article at this address: http://www.aravot.am/2015/07/20/594349/