Arrest Not Justified: Ombudsman's Statement on Babayan's Case

The Human Rights Defender has examined the statement of the Special Investigation Service regarding the arrest of Arsen Babayan, the former deputy head of the RA National Assembly staff, as well as a number of professional publications on this matter. This information is mentioned in the Ombudsman's announcement.

At this time, the Defender notes the following:

The arrest of A. Babayan was carried out by the Special Investigation Service on suspicion of committing a crime under the first part of Article 314 of the RA Criminal Code, which is punishable by a fine of up to five hundred times the minimum wage, or imprisonment for a term of up to four years, with disqualification from holding certain positions or engaging in certain activities for a maximum period of three years.

According to point 1 of part 5 of Article 2 of the amnesty law, it states: “Criminal prosecution shall be terminated, and any initiated criminal case shall be closed, as well as the criminal prosecution shall not be carried out for crimes committed until October 21, 2018 (excluding cases leading directly to death, where there is an objection from the victim's legal successor), for which individuals may be charged for committing offenses punishable by no more than four years of imprisonment.”

Article 6, point 17 of the Criminal Procedure Code considers all procedural actions carried out by the bodies of criminal prosecution as criminal prosecution, while in cases stipulated by this code, the victim, aiming to reveal the crime committed by the individual under the Criminal Code, shows the guilt of that person in committing the crime, as well as ensures the application of other punishment and coercive measures against such individual.

The Human Rights Defender takes into account the provision of part 6 of Article 35 of the Criminal Procedure Code, which stipulates that the termination of proceedings and the cessation of criminal prosecution cannot be allowed if the defendant objects to it, based on the law on amnesty.

The Defender also considers that according to part 12 of Article 4 of the amnesty law, the consent of the convicted person is not required for applying the amnesty in the presence of a legally effective judicial act. This means that even if a person objects to the application of the law on amnesty, they cannot be subjected to imprisonment in the case of a conviction.

This also implies that the exclusion of imprisonment in all cases of the person’s conviction makes any procedural actions interfering with their personal freedom unnecessary and, thus, unlawful.

The described situation increases the procedural burden of the prosecuting body in ensuring the unequivocal nature of its actions in each such case, in terms of pursuing a lawful purpose and proportional means to achieve it. This also means that the prosecuting body must demonstrate that the restriction of the individual's right to personal freedom is not intended to punish or impose deprivations on them.

Taking into consideration the above, the Human Rights Defender has initiated a process regarding the rights of Arsen Babayan by their own initiative. By the Defender's order, a visit has been carried out to the police detention facility for the purpose of meeting Arsen Babayan.

The Human Rights Defender has also requested clarifications from the Special Investigation Service in writing, and considering the matter relates to an arrest, a deadline of one day has been set for providing the clarifications.