Friday, May 24 2019 13:27
Asya Balayan

Prosecutor General`s Office made clarifications related to the court  decision in favor of Robert Kocharyan

Prosecutor General`s Office made clarifications related to the court  decision in favor of Robert Kocharyan

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. 

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