ArmInfo.The Prosecutor General's Office made explanations in connection with the filing of appeals against the court decision "in the March 1 case", in particular, about the release of the second President of Armenia Robert Kocharyan and the suspension of the criminal proceedings against him.4
The explanatory letter specifically states: "The RA Prosecutor General's Office filed an appeal against the court decision of May 18, 2019 on changing the measure of restraint against the second President of Armenia, Robert Kocharyan, under personal bail, as well as the appeal to the Constitutional court on the suspension of the proceedings in this criminal case. Appeals were submitted in compliance with the grounds and procedures provided for by the legislation, in particular, according to paragraph 10.1 of Article 6 of the Criminal Procedure Code of the Republic of Armenia, court decisions on measures of restraint and suspension of criminal proceedings are not judicial acts that decide the matter on the merits. On the basis of clauses 3 and 4 of Article 376.1 of the same code, decisions of the courts of first instance on changing the preventive measure and suspension of the proceedings are subject to appeal.
An appeal on the suspension of the criminal case was also filed on the basis of part 3 of Article 31 of the Criminal Procedure Code of the Republic of Armenia, according to which a court decision on the satisfaction of petitions of participants in the trial to suspend the proceedings on this case can be appealed to a higher court in 10 -day from the date of its adoption.
The complaint substantiated that the contested judicial act was pronounced in the absence of the substantive and legal conditions of the court's appeal to the Constitutional Court of the Republic of Armenia, and by this decision the court committed a judicial error - a significant violation of the Criminal Procedure Code.
The court, based almost entirely on the arguments and legal grounds presented by the defense, came to the conclusion that there was alleged doubt in accordance with Articles 72, 73 and 79 of the RA Constitution of the current version of Article 300.1 of the Criminal Code and Part 1 of Article 300, which was in force in 2008.
According to Article 71 of the Law of the Republic of Armenia <On Constitutional Court>, courts can apply to the Constitutional Court regarding the constitutionality of a normative legal act to be applied in a particular case under consideration.
1. The court, in the reasoning part of its decision of May 18, 2019, stated that at least <presumably> there are factual data substantiating the involvement of Robert Kocharyan in the acts attributed to part 1 of article 300.1 of the RA Criminal Code.
In fact, by its previous decision, the court has already concluded that according to the factual data obtained in the course of the case, there is a connection of R. Kocharyan to commit the acts provided for in part 1 of article 300.1 of the RA Criminal Code. On the basis of factual data on the existence of a reasonable suspicion about Kocharyan's connection to the commission of acts, as provided for in part 1 of Article 300.1 of Criminal Code of Armenia, the court contradicting itself, on the contested decision, questions the constitutionality of the same act, subject to the application of a legal act. Therefore, ignoring this circumstance, the court already on May 18, 2019 by its decision applied Article 300.1 of the RA Criminal Code. Simply put, the legal act applied by it, which has already caused legal consequences for the person, was regarded by the court as "to be applied" and on this basis considered it subject to appeal. Given that this question was raised by the defense also at the previous stages of consideration of the measure of restraint of the accused and received legal assessment by three courts. 2. The court appealed to the Armenian Constitutional Court for comments on Articles 56.1 and 57 of the RA Constitution, which were in force in 2008, when there is a corresponding comment from the RA Court of Cassation and a decision based on it in this regard. The Court of First Instance of General Jurisdiction of Yerevan actually ignored the fact that the Constitutional Court in connection with Robert Kocharyan's appeal of January 25, 2019 regarding the consideration of constitutionality of paragraph 1 of part 1 of Article 414.2 of the RA Criminal Code rejected Kocharyan's statement and by this resolution stated that the Court of Cassation has the power to interpret and apply the Constitution. By this decision it was justified that the powers to interpret and apply the Constitution are enshrined in the Constitution of each court, including the Court of Cassation. Considering that the Court of Cassation has already commented on the institution of immunity of the President of the Republic of Armenia by its above decision, this authority of the latter can no longer be challenged in the light of the legal positions of the RA Constitutional Court expressed by the above decision. 3. The Court of General Jurisdiction raised before the Constitutional Court also the issue of the provisions of the constitutional norms provided for by the Articles 56.1 and 57 of the RA Constitutional Law of 2005 edition, however it did not have the right to do that. In the context of the mechanism of legal regulation of part 9 of article 68 of the constitutional law of the Republic of Armenia, a court may receive from the Constitutional Court interpretation by constitutional norms only if it considers that any norm of a legal act subject to its application contradicts this constitutional norm. At the same time, the court did not raise the issue of compliance of the provision of any act with the specified norms. Meanwhile, the question of the compliance of any provision of any legal act with these norms was not raised by the court. Based on the foregoing, on appealing to the Constitutional Court and on suspending the proceedings on this case, the RA Prosecutor's Office asked the RA Criminal Court of Appeal to annul the decision completely and issue a new judicial act, confirming the absence of grounds for applying to the Constitutional Court in accordance with Article 31 of the Criminal Procedure Law. It should be emphasized that the court did not comply with the requirement established by Article 71 of the Constitutional Law of the Republic of Armenia <On Constitutional Court>, that before appealing to the Constitutional Court, the courts should decide to suspend the proceedings, and only after that within three days the decision of the relevant court to submit an application to the Constitutional Court. Having violated the procedural order, the court in this case made one single decision>, it is noted in the letter of the Prosecutor General's Office.