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17.06.2017 | The Constitutional Court of the Republic of Armenia has considered justified the arguments presented by the statement of the Prosecutor General of the Republic of Armenia

Under Article 285, Part 1 of the RA Criminal Procedure Code the prosecutor or the investigator can appeal to the court to use detention as a measure of restraint or to extend the detention. Article 285, Part 5 of the RA Criminal Procedure Code envisages the obligation to give the person filing the petition court decision made in the result of the discussion of the petition.


According to Article 287, Part 1 of the RA Criminal Procedure Code from the bodies conducting criminal prosecution only prosecutor has the right to bring an appeal against the decision of the court, which has been rendered in the result of the discussion of the petition.


In case when the investigator brings a petition to the court, the RA Criminal Procedure Code does not envisage special regulation to notify the prosecutor, as a result of which, under the circumstances of the interpretation of the situation in legal practice, the prosecutor as a body, conducting criminal prosecution, is deprived from the opportunity to exercise his exclusive right to appeal the decision which has been made in the result of the discussion of the petition.


Besides that,  Article 283 Part 2 of the RA Criminal Procedure Code, which establishes the procedure to review the petitions for applying compulsory measures, gives the prosecutor right to withdraw the petition, while the same code doesn’t envisage the obligation to notify the prosecutor about the initiation of filling a petition by the investigator.


 In order to solve the legislative problem, corresponding appeal has been brought to the Cassation Court of the Republic of Armenia, which has not been accepted for processing.


By the application of 07.03.2017 of the RA Prosecutor General, A. Davtyan submitted to Cassation Court of the Republic of Armenia, has been disputed the constitutionality of the interpretation of Article 285, Part 5 of the RA Criminal Procedure Code in the legal practice, with the justification that it does not prescribe the process of sending directly to the prosecutor court decisions made by the petitions on choosing detention as a measure of restraint or to extend detention.


In the result of the investigation of the application of the RA Prosecutor General, Constitutional Court of the Republic of Armenia by the decision dated 13.06.2017, No. SDO-1373 has stated that in the legal practice, formal approach to procedural norms shouldn’t be made, due to which it would be possible to secure judicial protection of the interests of the person and to prevent possible threats of legal safety.


Constitutional Court of the Republic of Armenia has expressed it’s legal position by the above-mentioned decision that before the corresponding legislative changes, the problem can be solved within the framework of exploring the content of constitutional and legal regulations and forming appropriate law enforcement practice.


The effective implementation of legal norms and interests of ensuring the rule of law, stipulated by Article 53 of the RA Criminal Procedure Code, aimed at exercising the powers of the Prosecutor’s Office, stipulated by the RA Constitution require that:


•    Investigator should notify the prosecutor about the petition for choosing against the accused detention as a measure of restraint or to extend detention.

•    Prosecutor must be properly informed about the court decision concerning detention chosen as a measure of restraint or extension of the detention.