Earlier it was reported that on April 1, 2021 the RA Prosecutor General applied to the RA Constitutional Court to find out whether the article of the Criminal Procedure Code complies with the Constitution, according to which the First Instance Court of General Jurisdiction of Yerevan terminated criminal prosecution against R. Kocharyan and others by the case / criminal case N ED / 0253 / 01/19 /.

 

On May 14, 2021 the RA Constitutional Court rejected by a working decision the consideration of the case on the basis of the statement of the RA Prosecutor General, considering that the Prosecutor General is not authorized to apply to the Constitutional Court on the constitutionality of the norm applied in a criminal case that is at the stage of judicial investigation.

 

The decision of the Constitutional Court is arbitrary for the following reasons:

 

Under Point 9 of Part 1 of Article 169 of the RA Constitution - The Prosecutor General — in respect of the constitutionality of provisions of regulatory legal acts related to specific proceedings administered by the prosecutor’s office, as well as in the case prescribed by point 11 of Article 168 of the Constitution.

 

Under Part 2 of Article 71 of the RA Constitutional law on the Constitutional Court - The Prosecutor General may appeal to the Constitutional Court on the constitutionality of the provisions of regulatory legal acts related to specific proceedings administered by the prosecutor's office.

 

The RA Constitutional Court in the decision SDO -934 stated that “(...) at the stage of the trial, the constitutional function of the Prosecutor’s Office is to defend the charges within the framework of general principles of justice. Thus, at this stage, a specific case is in court, and the latter is recognized by the RA Constitution as a subject appealing to the Constitutional Court. Only cases in which the prosecutor has the power to make an independent decision at the trial stage of the case can be separated from this general rule. This could be, for example, when a charge is dropped or changed (…).

 

More precisely, the Constitutional Court firstly directly and unconditionally stated that the Prosecutor General is empowered to apply to the Constitutional Court by the case investigated at the trial stage, if the contested norms relate to the prosecutor's exercise of the constitutional function, including changing the charge, and noted that this circumstance is subject to legislative fixation. And according to the made decision, the Constitutional Court, stating that the specified requirement was not fulfilled by the legislative body, that is, the decision of the Constitutional Court was ignored, considers that the decision that had been previously rendered is no longer valid.

 

 Although we are convinced that the unconstitutional nature of this decision of the Constitutional Court is obvious to the legal community, we nevertheless consider it necessary to recall that in other similar cases the Constitutional Court has taken a categorically opposite approach. In particular, the Constitutional Court, after fixing by decision SDO-690 of 09.04.2007, the need to substantiate the decision to return the cassation appeal, given that the requirements of this decision were not fully fulfilled by legislative changes made in the future, by decision SDO -690 of 29.07.2009 by another case once again confirmed the position and once again stated that the decision to return the cassation appeal must be substantiated.

 

Consequently, the decision of the Constitutional Court to refuse to consider the case on the basis of the statement of the RA Prosecutor General not only directly contradicts the previous positions, but also ignores its own previous position regarding the case of Robert Kocharyan and its inconsistency in relation to it.