Tuesday, September 1 2020 17:19

ArmInfo. The Court of Cassation replied to Prosecutor General's Advisor Gor Abrahamyan regarding its "belated decision" in the case of Masis Mayor David  Hambartsumyan.

The statement recalls that on August 29, Abrahamyan posted a message  on his Facebook page that "The Court of Cassation belatedly  recognized the arguments of the Prosecutor General's Office about the  inadmissibility of using bail against Masis Mayor David Hambartsumyan  as an alternative measure of restraint." 

"Regarding the judgment on the recognition of the arguments of the  Prosecutor General's Office as justified <with delay>, it should be  noted that during the pre-trial proceedings the Criminal Chamber of  the Court of Cassation in relation to David Hambartsumyan as well as  the accused in the same case Gor Hambartsumyan, Karen Ohanyan,  Armenak Hakobyan, Gor Khachatryan, accepted the complaint of the RA  Deputy Prosecutor General regarding the legality of the application  of a preventive measure for reasons of implementing the  constitutional function of ensuring the uniform application of the  law," the statement reads.  At the same time, it is noted that in the  case of Gor Hambartsumyan, the Criminal Chamber of the Court of  Cassation, taking into account a number of factors (including the  criteria enshrined in international legal documents, and legislative  regulations of a number of foreign countries), on April 12, 2009,  applied to the Constitutional Court with a request to determine the  issue of compliance with the RA Constitution with criminal procedural  norms that threaten the fundamental right of human freedom. As a  result, the Constitutional Court on October 15, 2019, by its  decision, satisfied the application of the Court of Cassation,  recognizing the contested criminal procedure provisions as contrary  to the RA Constitution.

"It is important to state that the discussion of the cassation  complaints presented in the case of both David Hambartsumyan and Gor  Hambartsumyan became possible only after the above decision was made.   Meanwhile, the criminal case against David and Gor Hambartsumyan,  even before that, that is, on June 14, 2019, was sent to the court of  first instance for consideration on the merits. Thus, prior to the  consideration by the Constitutional Court of the above-mentioned  statement of the Court of Cassation, the pre-trial proceedings in the  criminal case had already been completed. Consequently, the decision  of the Cassation Court of the Cassation Court on David Hambartsumyan  within the framework of the pre-trial proceedings in this case could  not lead to any legal consequences not because of the "delay" in the  decision of the Cassation Court or its sending to the parties with a  completion of pre-trial proceedings in this case before the  Constitutional Court makes an appropriate decision and adopts a new  decision on the preventive measure against the accused.

To note, the decisions of the Criminal Chamber of the Court of  Cassation in the case of both David Hambartsumyan and Gore  Hambartsumyan have a fundamental precedent from the point of view of  ensuring the principle of the presumption of individual freedom,  ensuring the unity of judicial practice. Within the framework of the  established case law, the Criminal Chamber of the Court of Cassation  in the aforementioned cases stated that, on the basis of the  application of a conditional preventive measure, an application for  bail, with reference exclusively to legislative regulations, cannot  automatically be rejected without turning it into a subject of  consideration on the merits, which is also unacceptable with the  point of view of the case law of the European Court of Human Rights. 

At the same time, the Criminal Chamber of the Court of Cassation  stated that, as an alternative, bail should be seen as an effective  way to counterbalance any risk of misconduct by the accused, making  it possible to ensure a fair balance between the right to liberty and  the public interest in a proper investigation of a case involving the  accused>, the statement emphasized.  

As Adviser to the Prosecutor General Gor Abrahamyan previously  reported ,  the Court of Cassation considered the arguments of the  Prosecutor General's Office expressed in the cassation appeal on the  inadmissibility of using bail against the mayor of Masis David  Hambartsumyan as an alternative measure of restraint. On December 6,  2018, the RA Prosecutor General's Office filed a cassation appeal in  connection with the replacement of the preventive measure from arrest  to bail against Mayor Hambartsumyan, who was charged in the criminal  case on the riots that took place during the velvet revolution in the  administrative district of Erebuni, Yerevan, and also cases of  hooliganism with the use of weapons at the crossroads of the villages  of Hayanist-Hovtashat, Ararat region. In addition, the cassation  appeal also concerned the rejection by the Court of Appeal of the  complaint of the Prosecutor General's Office regarding the decision  of the court of first instance of general jurisdiction to replace  Hambartsumian's preventive measure.  Meanwhile, since the Court of  Cassation adopted the above decision during the period when the  criminal case had already been in court for a long time, it,  therefore, has no legal consequences in terms of changing the  preventive measure of Hambartsumyan.  

To recall, in the above-mentioned criminal case David Hambartsumyan  was charged under parts 1 and 2 of Article 225, part 4 of Article 258  of the RA Criminal Code. Subsequently, the acts incriminated to him  were reclassified, he was charged under Part 4 of Article 258 of the  RA Criminal Code, and the criminal case, with the accusation of 8  persons, is currently at the stage of trial.