Clarification from the Office of the Prosecutor General Regarding the Appeal Filed in the Kocharian Case

The Office of the Prosecutor General of Armenia has filed an appeal against the May 18, 2019 decision of the court to change the measure of restraint for defendant R. Kocharian to a personal guarantee, as well as against the court's decision on May 20, 2019, to suspend the proceedings in the same criminal case and to apply to the Constitutional Court.

Given the public interest and the ongoing presence of various and sometimes unfounded interpretations in the media regarding the subject of the dispute, we find it necessary to inform about the following:

The appeals were filed based on the grounds provided by law and in full compliance with the procedural requirements. In particular, in accordance with Article 6, Clause 10.1 of the Criminal Procedure Code of Armenia, both the decisions on measures of restraint and the suspension of the criminal case proceedings by the court are considered judicial acts that do not resolve the case on its merits. According to Clauses 3 and 4 of Article 376.1 of the same code, decisions by first instance courts to change the measure of restraint to detention and to suspend proceedings in the case are subject to appeal.

The appeal against the decision to suspend the proceedings was also based on Article 31, Part 3 of the Criminal Procedure Code, which states that the decision of the court to satisfy the request for suspending proceedings on the basis of the participants' requests to apply to the Constitutional Court may be appealed to a higher court within ten days from the moment of its issuance.

In the appeal, it was argued that the contested judicial act was issued by the court without the presence of legal grounds for applying to the Constitutional Court, thereby allowing a judicial error that constitutes a significant violation of criminal procedure law. Specifically:

1. The court, almost entirely relying on the arguments and legal justifications presented by the defense, concluded that there is a doubt regarding the compliance of Article 300.1 of the current version of the Criminal Code of Armenia with Articles 72, 73, and 79 of the Constitution.
2. According to Article 71 of the Law on the Constitutional Court, courts may apply to the Constitutional Court regarding the constitutionality of a normative legal act applicable in a specific case at hand.
3. Prior to the contested judicial act, in the reasoning section of its own decision dated May 18, 2019, No. YD/0253/01/19, the court noted that there are at least (presumably) factual data supporting R. Kocharian's involvement in the act attributed under Part 1 of Article 300.1 of the Criminal Code. Thus, the court had previously concluded that there were facts obtained in the case indicating R. Kocharian’s connection to the act prescribed in Part 1 of Article 300.1 of the Criminal Code.
4. The court raised the question of the constitutionality of the provision of the same act as applicable in contradiction to its previous decision where it had utilized the same law. In other words, the court assessed a legal act, which already had legal consequences for the individual, as "applicable" and deemed it contestable on that basis.
5. The court had approached this issue during previous hearings of the defendant's measure of restraint and received legal assessments from three judicial levels.

Moreover, the court approached the Constitutional Court for clarification regarding Articles 56.1 and 57 of the Constitution as of 2008 when relevant clarification existed from the Court of Cassation based on which the decision was made. The first instance court in Yerevan disregarded the fact that in connection with R. Kocharian's request regarding the constitutionality of Part 1 of Article 414.2 of the Criminal Code, the Constitutional Court had concluded to reject the case for examination on January 25, 2019, thereby affirming that the Court of Cassation has the authority to interpret and apply the Constitution.

Taking into account the existing interpretation of the institution of functional immunity of the President of Armenia, as asserted by the previously cited decision of the Court of Cassation, its authority can no longer be disputed in light of the legal positions expressed in the aforementioned decision by the Constitutional Court.

Considering the above circumstances, the Office of the Prosecutor General, led by Arthur Davtyan, has requested the Court of Appeal to overturn the mentioned decision in its entirety and to issue a new judicial act confirming the absence of grounds for appealing to the Constitutional Court regarding the suspension of the proceedings based on Article 31 of the Criminal Procedure Code.

Additionally, it should be emphasized that the Court did not comply with the requirement stipulated in Article 71 of the Law on the Constitutional Court, which states that before applying to the Constitutional Court, courts must make a decision on suspending the case proceedings before submitting a request to the Constitutional Court within a separate three-day timeframe. By allowing a procedural violation, the Court rendered a single unified decision in this case.