On December 29, 2016, on the fact of embezzlement of an especially large amount, the director of the indicated airline, A. Avetisyan, was charged under the RA Criminal Code Article 179, part 3, paragraph 1. The latter was accused of selling air tickets to individuals in 2014 and not paying state duty payments to the state budget. However, instead of the payments, the director appropriated the amount of 681,923,052 drams and disposed of it at his own discretion.

 

The property and bank accounts of A. Avetisyan and Air Armenia were seized. As a result of the trial, by the decision of the Court of First Instance of Yerevan dated July 26, 2019, A. Avetisyan was acquitted due to the absence of a crime case. The court established that the property entrusted to him, in this case the funds indicated above, the defendant did not withdraw the property from the general property fund of the owner, did not include it in his own property fund, and did not appropriate it. Moreover, no money was withdrawn from the cash desk or from the company's current account at Air Armenia CJSC without a purpose, moreover, the state has not yet fulfilled its obligations to the company.

 

The appeal filed against the decision of the RA Prosecutor's Office was rejected by the Court of Appeal, leaving the verdict of the court of First instance unchanged. The Court of Appeal, in its turn, found that financial transactions are connected with a civil law dispute and that non-fulfillment of property obligations cannot be the basis for the application of a criminal procedural order. Although the Court of Appeal recognized the conclusions of the court of first instance as unfounded regarding the absence of a crime case, it recognized that the defendant should be acquitted not on the basis of the absence of a crime case, but on the basis of the absence of corpus delicti.

 

This decision was appealed by the Deputy Prosecutor General and the decision of April 8, 2022 of the RA Court of Cassation was fully satisfied.

 

Having considered the case in the light of the previous legal positions expressed on the offense of embezzlement, the Court of Cassation agreed with all the main grounds of the prosecutor's complaint.

 

In particular, the court noted that the legal relations between the Republic of Armenia and Air Armenia CJSC were not of a private nature, as the lower courts pointed out, but of a public-administrative nature, since the state in this case did not act on an equal footing, but as a subject endowed with official powers that determined the content of their relations with the other party by a unilateral expression of will.

 

Accordingly, as a result of delegating to him the exclusive powers to collect the state duty, in addition to the “main” property fund, a separate “intermediate” property fund was formed, the purpose of which is to send state property, in this case the state duty, to the “main” property fund of the state. Meanwhile, A. Avetisyan, being obliged to transfer the state duty to the “main” property fund of the state in due time, did not do this, connecting it to the property fund of the organization, and sent it along with the latter to cover the current expenses of Air Armenia CJSC. Moreover, the fact that these actions were taken in order to save the organization, not to lose large sums invested in the past, indicates the presence of a profit motive.

 

The Court of Cassation considered that the fact that the company was in a difficult financial situation, and the facts about the failure of the state to fulfill its obligations to the company, established by the prosecutor's office, could not be grounds for excluding the presence of elements of the crime of embezzlement.

 

Accordingly, the allegations of the defendant's acquittal by the lower courts are unfounded.

 

On this basis, the RA Court of Cassation ruled to annul the decision of the RA Criminal Court of Appeal dated February 25, 2021 in relation to Avetisyan A. and the case was returned for retrial by the same court.