The Armenian Prosecutor General Appeals to the Constitutional Court Regarding the Criminal Case of Kocharyan and Others

The Armenian Prosecutor General Artur Davtyan has appealed to the Constitutional Court on April 1, 2021, regarding the criminal case involving Robert Kocharyan and others.

The appeal contests the compliance of the provisions of Article 35, parts 1 and 4, of the Criminal Procedure Code of the Republic of Armenia, Article 309.1, part 3, as well as the systematically interconnected provisions of part 5 of Article 35 and part 2 of Article 366 with Article 61, part 1, Article 63, part 1, Article 75, and point 3 of part 2 of Article 176 of the Constitution of the Republic of Armenia. The contestation arises from the obligation imposed on the prosecutor (accuser) to abandon the charges and on the court to terminate criminal proceedings immediately after a factor emerges that excludes the process concerning the legal qualification of a specific act attributed to an individual. This situation prevents any procedural action from being taken and inhibits the amendment and reclassification of the charges against the accused when there are characteristics of another act not permitted by the Criminal Code of Armenia, where the circumstances do not exclude the proceedings. Therefore, the rights of the victim to judicial protection and the right to a fair trial are not guaranteed.

In particular, many offenses described in the Criminal Code of Armenia have a relationship between general and special types, parts, and the whole. The uniqueness of special offenses is that they contain not only the characteristics of a general offense but also additional or distinctive features. A special offense is seen as a manifestation of a general offense distinguished by a specific legal characteristic, which is why it is considered as a separate offense.

The competition of general and special offenses arises when an individual's act fits the characteristics of both a general offense and a special offense containing its specific manifestation. In such cases, the act is qualified under the special offense, as the general offense is encompassed within it. Simultaneously, in all instances where a factor appears that excludes the special offense, which applies solely to it and does not relate to the norms concerning the general offense, for example, if the legal norm defining the special offense has been annulled from the Criminal Code or deemed unconstitutional and invalid, the individual's act should be qualified within the framework of the general offense.

However, the regulations regarding the conditions that exclude criminal prosecution and criminal proceedings do not allow for the necessary procedural mechanisms to amend the charges or undertake any procedural actions after the emergence of such conditions. This results in a situation where the provision of the Criminal Code of Armenia defining and qualifying the act of the individual becomes ineffective. The act corresponds to the characteristics of another general offense but offers no procedural possibility to exclude proceedings based on that act.

The analysis of the regulations and interpretations of Article 309.1 of the Criminal Procedure Code of Armenia indicates that the basis for executing all regimes of charge modification by the prosecutor lies in the factual circumstances constituting the charge and altering the prosecutor’s conclusions regarding them. The legal qualification of an act does not fit within the framework of the ‘evidence-fact’ connection, so its alteration cannot directly result from the examination of evidence, meaning that the legal element of the charge – the legal qualification – cannot be altered independently, without changing the factual circumstances, even under the second regime.

As is evident from the international legal documents concerning the rights of victims and the jurisdiction of the Supreme Court of Armenia, the rights to judicial protection and a fair trial also pertain to individuals harmed by crimes. Such individuals equally benefit from the guarantees established by Articles 61 and 63 of the Constitution of Armenia. The right of the victim to a fair trial includes their interest in restoring the damages they have suffered, fully uncovering the circumstances of the act that caused harm, receiving the correct legal qualification of that act, having the individual who committed the crime convicted, and being subjected to fair punishment.

Furthermore, Article 75 of the Constitution of Armenia necessitates that laws governing fundamental rights and freedoms, including the rights to judicial protection and a fair trial, establish organizational frameworks and procedures essential for the effective realization of these rights and freedoms.

In the existing legislative environment, however, an individual committing a crime may evade criminal responsibility while a victim may be deprived of their rights to judicial protection and a fair trial and the satisfaction of their procedural interests merely because Article 309.1 of the Criminal Procedure Code of Armenia does not provide a possibility for the defendant to change the legal qualification of the act, while Articles 35, parts 1, 4, and 5, and part 2 of Article 366 impose an obligation to halt criminal prosecution without any evaluations of a different offense's existence, even when the norm defining the crime has been removed, and yet the individual’s act corresponds to the characteristics of another offense.

Such regulations evidently, through unjustified formalism, fail to guarantee the victim’s rights to judicial protection and a fair trial, do not envision the necessary organizational frameworks and procedures for effective realization of these primary rights, distort the defense against charges as a means to ensure the aforementioned rights, and ultimately lead to the violation of the victim's procedural interests, thus contradicting the requirements of Articles 61, part 1, 63, part 1, 75, and point 3 of part 2 of Article 176 of the Constitution of Armenia.

This indicates that a legitimate procedural position regarding the future of the criminal prosecution of the defendants in this case can only be shaped after a decision is made by the Constitutional Court on the raised issue.