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22.03.2021 | The RA Court of Cassation receiving the positions expressed in the appeal of the RA Prosecutor's Office, passed another guiding decision

The RA General Prosecutor's Office received a decision two days ago related to a case of crime committed in 2011, initiated a criminal case under Article 322, Part 2 of the RA Criminal Code on 17.08.2018 on the complaint filed by the RA Prosecutor's Office. This decision was passed on October 10, 2020 and it is an important in terms of criminal procedure improvement and clarification.


A person was charged in the mentioned criminal case, who did not accept the accusation leveled against him and didn’t agree to terminate the proceedings of the case on the grounds of expiration of the statute of limitations. During the investigation, the preliminary investigation body submitted motions to the Court of General Jurisdiction of Yerevan to get permission defendant's house search, adjacent buildings, as well as his office, but they were rejected by the court.


An appeal was filed against those decisions by the Prosecutor's Office, but it was rejected by the Decision of the Court of Appeals dated on January 10, 2020.


The courts stated their decision mainly with the alleged crime as there was a substantial circumstance excluding the criminal case - the ground for which the statute of limitations for criminal liability has expired. And in such circumstances, searching the apartment/ office will be considered disproportionate interference to constitutionally guaranteed rights and freedoms of a person, in particular the right to the inviolability of private life and home.


The Court of Appeal considered that in cases where there is a circumstance excluding the proceedings, but the person who committed the alleged crime does not agree to terminate the proceedings and the criminal prosecution on that base, the investigation should be carried out by using such methods and tools, which do not foresee interference of rights and legal interests of the person.


Disagreeing with the above-mentioned legal approaches of the subordinate courts, the RA Prosecutor General's Office filed an appeal against the decisions made, which was accepted for proceedings.


The Prosecutor's Office meant the position that an interference with a person's right to privacy cannot be assessed as a not adequate simply because of the fact that the statute of limitations for prosecuting a person has expired. When the accused has not pleaded guilty to the charges, has not agreed with the expiry of the statute of limitations, additional investigative and other legal proceedings are need to be carried out to prove his guilt or innocence, including a search of his residence or office. However, as a result of such decisions made by the subordinate courts, the body conducting the proceedings is deprived of that opportunity. In case of accepting the above reasoning by the courts, the body conducting the proceedings in such situations should be deprived of the opportunity to carry out a number of investigative and judicial actions, for example, submitting mediations to the court on correspondence, mail, telegraph, telephone conversations or confiscating bank secrecy or notarial information, because they also somehow interfere the privacy of the person's private life.


Studying the complaints of the Prosecutor's Office, the RA Court of Cassation fully agreed with the latter's legal positions. In particular, the court underlined that if there is a ground for excluding criminal proceedings in relation with an alleged crime, i.e. the statute of limitations for criminal liability has expired, but the accused did not agree to terminate the proceedings on that basis, investigation must be carried out to reach a final court decision. According to the Court of Cassation, in these circumstances, it is possible that all the investigative and judicial actions defined by the criminal procedure aimed at proving the guilt of the person can be carried out, i.e. by means of objecting to the termination of the proceedings on the grounds of statute of limitations, the accused accepts the risk of possible restriction of some of his rights, and in the result his guilt.


Agreeing with the positions of the Prosecutor's Office on other reasons, the RA Court of Cassation considers the investigations of the subordinate court not lawful.


On this ground, the Court of Cassation granted the appeals of the RA Prosecutor General's Office partially, overturned the above-mentioned decisions of the subordinate courts, and sent the case to the RA Court of Appeals for a new examination.