Kocharian's Defense Team Responds to the Court of Cassation

The defense team of the second President of Armenia, Robert Kocharian, responded today, May 27, to the statement of the Court of Cassation, which indicated that the decisions of the Constitutional Court made based on Robert Kocharian's application undermine the boundaries of legal interpretation between the two judicial bodies, jeopardizing the principle of functional separation.

The defense team's response is as follows:

“It has come to our attention through the media that the judges of the Criminal Chamber of the Court of Cassation have issued a statement expressing their dissatisfaction with the evaluations in the decisions of the Constitutional Court numbered SDO-1453 dated April 16, 2019, and SDO-1459 dated May 7, 2019 (the latter decision was based on Mr. R. Kocharian's application). In one instance, the exercise of the discretionary powers of the Court of Cassation was qualified as arbitrary, while in another, the implementation of the primary function of the supreme judicial authority—ensuring uniform application of the law and the development of law—was said to exceed its powers. According to the judges of the Criminal Chamber, such evaluations undermine the boundaries of legal interpretation between two branches of judicial authority, threatening the principle of functional separation.

In connection with the aforementioned statement by the judges of the Criminal Chamber of the Court of Cassation, we find it necessary to provide several clarifications. Regarding the judges’ dissatisfaction that the Constitutional Court has qualified the 'exercise of the discretionary powers of the Court of Cassation as arbitrary,' such a statement does not exist in the decision number SDO-1459 dated May 7, 2019, based on Mr. Robert Kocharian's application. Presumably, the judges of the Criminal Chamber were referring to decision number SDO-1453 made on April 16, 2019, in another case. However, if the judges had considered not just the word of concern but also the sentence, especially the paragraph, in which that word is placed, they would have formed a more accurate understanding of the context in which the mentioned term was utilized. The full sentence is as follows: 'In this case, the Court of Cassation, by not accepting the applicant's appeal, ignored the apparent contradiction in the decisions of the first and appellate instance courts to the legal positions expressed in its own decisions, thus arbitrarily deviating from its expressed positions without necessary justifications, which led to the violation of the applicant’s rights enshrined in Article 27, paragraph 1, point 4, and Article 61, paragraph 1 of the Constitution.' (See the last sentence of point 5.10 of the SDO-1453 decision).

Incidentally, the Constitutional Court has previously issued a number of decisions (for example, decision SDO-719) which have subjected the practice of courts, including the Court of Cassation, to significantly harsher criticism. However, for unclear or yet undisclosed motives, the Court of Cassation has only responded to the aforementioned decisions.

As for the other expression that raised concern among the judges of the Criminal Chamber of the Court of Cassation—'exceeding the powers in essence'—once again, these judges did not study the text they criticize with sufficient attention. This expression appears in the decision number SDO-1459 dated May 7, 2019, based on Mr. R. Kocharian's application, but not as a qualification from the Constitutional Court. It is presented in the descriptive part of the decision, where the Constitutional Court simply outlined the arguments presented by the applicant without offering its own evaluations (see the second paragraph of page 4 and the first sentence of point 4.7 of the same decision).

The fact that the judges of the Criminal Chamber of the Court of Cassation have superficially familiarized themselves with the two decisions of the Constitutional Court directly related to them and which prompted their dissatisfaction casts a shadow over the entire functioning of this crucial judicial body.”