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02.04.2021 | The RA Prosecutor General by the case of Robert Kocharyan and others appealed to the Constitutional Court

On 01.04.2021 the RA Prosecutor General Artur Davtyan applied to the Constitutional Court by the criminal case of Robert Kocharyan and others.


The appeal disputes the compliance of Part 1 and Part 4 of Article 35, Part 3 of Article 309.1, as well as of the provisions of Part 5 of Article 35 and Part 2 of Article 366 of the RA Criminal Procedure Code with Part 1 of Article 61, Part 1 of Article 63, Article 75 and Point 3 of Part 2 of Article 176 of the RA Constitution to the extent that they, immediately after revealing a circumstance that excludes proceedings in connection with the legal qualification of a specific act incriminated to a person, creates an obligation for the prosecutor (accused) to refuse the charge, and for the court to terminate the criminal prosecution, not giving the opportunity to carry out any procedural action and change the accusation against the defendant and re-qualify his act in the event that it contains signs of such an act, in connection with which the specified circumstance excluding proceedings is absent and thus the rights for judicial protection and fair trial are not guaranteed, the necessary organizational procedures are not provided for effective implementation of the indicated basic rights.


In particular, many corpus delicti, described in the RA Criminal Code, have a ratio of general and special, part and whole. The peculiarity of special corpus delicti is that they contain both signs of the general corpus delicti as a whole, and an additional or different sign of corpus delicti. A special corpus delicti is a private manifestation of the general corpus delicti, separated by any criminal legal feature, in connection with the peculiarities of this manifestation it is provided as a separate corpus delicti.


In cases where the act of a person corresponds to the features of both general and special corpus delicti, containing its specific manifestation, it is subject to qualification according to the special corpus delicti, since the general is absorbed by the latter. At the same time, in all cases when a circumstance is established that excludes corpus delicti, for example, criminal legal provision providing the indicated corpus delicti has lost its force because of being removed from the Criminal Code or being considered invalid or contrary to the RA Constitution, the person's act must be qualified within the general corpus delicti.


Legal regulations regarding the circumstances precluding criminal prosecution and criminal proceedings, immediately after their detection, impose an obligation on the prosecutor to drop the charge, and the court - to terminate criminal prosecution or suspend criminal proceedings. And this does not allow changing the charge with the use of the appropriate and necessary judicial instruments or taking any procedural actions in this direction, leading to the fact that the norm of the RA Criminal Code, provided for a particular act of a person, ceases to be valid, this act corresponds to the signs of a general corpus delicti envisaged by another norm of the RA Criminal Code, but at least there is no procedural possibility not to exclude proceedings in connection with this act. The fact is that the analysis of legal regulations and interpretations of Article 309.1 of the RA Criminal Procedure Code indicates that the basis for the prosecutor's application of all modes of changing the charge is the change in the circumstances, which create the factual side of the charge, the prosecutor's conclusions in this regard. And the legal qualification of the act, which expresses the connection between the components of the accusation "fact-law", does not fit into the framework of the connection "evidence-fact", therefore, its change cannot be a direct result of the study of evidence.


Meanwhile, as it is obvious from international legal documents on the rights of the victim and the right of the RA Court of Cassation, the rights to judicial protection and fair trial also apply to persons who have suffered from a crime, and the latter equally enjoy the guarantees defined by Articles 61 and 63 of the RA Constitution.


While, according to the current legal regulations, a person who committed a crime may be released from criminal liability, and the victim may be deprived of the right to judicial protection and all because in Article 309.1 of the RA Criminal Procedure Code there is no possibility of change of the legal qualification of the act by the prosecutor, while Parts 1, Parts 4, Parts 5 of Article 35 and Part 2 of Article 366 of the RA Criminal Procedure Code oblige not to carry out criminal prosecution, drop charge and terminate criminal prosecution without any qualifications. Such regulations obviously by not guaranteeing the rights of judicial protection of the victim and a fair trial as a result contradict the requirements of Part 1 of Art. 61, Part 1 of Art. 63, Art. 75 and Point 3 of Part 2 of Art. 176 of the RA Constitution.


The above mentioned indicates that only after the decision of the Constitutional Court regarding the raised issue it will be possible to form a legitimate procedural position regarding the further fate of the criminal prosecution of the defendants by this criminal case.