Prosecutor's Office Violated the Constitutional Norm of Hrayr Tovmasyan's Immunity, Legal Team Claims

Today, the Office of the Prosecutor General of Armenia released a statement regarding the President of the Constitutional Court, Hrayr Tovmasyan, which reportedly contains obvious violations of the Armenian Constitution and constitutional law, as well as illegal assertions. This was stated by Tovmasyan's lawyer, Amram Makinyan, on his Facebook page.

He specifically wrote:

“1. By the aforementioned statement, the Prosecutor's Office has grossly violated the requirements of Article 9, Part 7 of the constitutional law 'On the Constitutional Court,' which mandates that actions against a Constitutional Court judge in the context of a criminal proceeding must be undertaken while ensuring the utmost confidentiality of the pre-trial process, and respecting the authority and independence of the judge and the judiciary, thus excluding any direct or indirect interference with the judge's activities. In other words, publicly disclosing the content of the charges against Hrayr Tovmasyan, the Prosecutor's Office has clearly and grossly violated the requirements of constitutional law, directly intervening in the activities of an acting judge of the Constitutional Court.

Regarding the factual circumstances attributed to Hrayr Tovmasyan in the statement and our position on their validity, we declare that they bear no relation to reality and have no doubt that they will be completely refuted as the criminal case proceeds.

2. Regarding the scope of Hrayr Tovmasyan's personal immunity, it is necessary to note the following: According to Part 3 of Article 97 of the 2005 Constitution, a member of the Constitutional Court is endowed with both functional and personal immunity. Therefore, individuals who became members of the Constitutional Court until April 9, 2018, enjoy both functional and personal immunity. This means that the amendments made in 2015 worsen the legal status of judges as private individuals, as their fundamental rights to personal liberty are restricted if they are involved as defendants in acts attributed to them prior to April 9, 2018.

In other words, although personal and functional immunities pertain to an official who holds the status of a member of the Constitutional Court, changes in the Constitution and laws retroactively abolishing their personal immunity worsen their legal status, which is impermissible both according to the 2005 amendments to Part 3 of Article 42 of the Constitution and the current 2015 amendments to Part 1 of Article 73 of the Constitution.

Thus, the prohibition on retrospective application of laws and other legal acts that worsen an individual's legal status excludes the involvement of a Constitutional Court judge as a defendant for alleged acts purportedly committed before April 9, 2018, when they were endowed with personal immunity. Such a violation, both in nature and in its consequences, is identical to the retroactive application of responsibility-defining or exacerbating laws.

3. In its statement, the Prosecutor's Office refers to Article 4 of the Criminal Procedure Code of the Republic of Armenia, which outlines the general regulation of criminal proceedings, yet it bears no relation to the special rules applicable to a Constitutional Court judge or other officials endowed with immunity. It is necessary to clarify that a special article establishing guarantees of the immunity of a Constitutional Court judge is provided in the Constitution of the Republic of Armenia, which takes precedence over the Criminal Procedure Code. Therefore, if no relevant exception is provided by the Criminal Procedure Code, it does not mean that it is not enshrined in the Constitution. According to Part 2 of Article 5 of the Constitution, the Prosecutor's Office must be guided by the Constitution and constitutional laws, rather than ordinary laws, if the latter contradicts the Constitution or constitutional law. It is unacceptable to justify the non-application of a constitutional norm by any norm of the Criminal Procedure Code.

4. For those casting doubt on Hrayr Tovmasyan's guarantee of personal immunity, we would like to reiterate the content of Article 73 of the Constitution, as established in several decisions by the Constitutional Court: if any right of a person is restricted, then no law or other legal act can have retroactive effect or be applied retroactively, starting from the Constitution to the normative acts of local self-government bodies, as well as any individual acts of state bodies. Mr. Hrayr Tovmasyan's personal immunity as a member of the CC pertains to actions allegedly committed before April 9, 2018; therefore, this immunity is not only a specific guarantee of the independence and immunity of the CC member, but also a safeguard of his personal freedom, mobility, and general freedom as a private individual. By assuming the position of a CC member, Mr. Tovmasyan already possessed this larger scope of guarantee, and any subsequent reduction of that scope cannot be applied retroactively by the Prosecutor's Office to acts that the Prosecutor's Office believes he committed before April 9, 2018, as this directly affects his legal status as a private individual and worsens it, therefore the imperative requirement of non-retroactivity must be maintained unconditionally. The charge brought against Mr. Hrayr Tovmasyan pertains to him as a private individual, rather than as a CC judge, hence the additional guarantees provided by the Constitution in the previous version cannot be diminished by arbitrary interpretations of the Prosecutor's Office.”