On February 1, 2022, the lawyers
(Mr. Yerem Sargsyan and Mr. Arsen Sardaryan) of Mr. Boris Bakhshiyan, the judge
of the First Instance Court of General Jurisdiction of Syunik province applied
to the Human Rights Defender noting that an unlawful criminal prosecution is
being implemented against their client, and that his right to personal liberty
was endangered. According to the lawyers, the prosecution is related to
"blatantly unlawful detention or keeping under detention" of a person
in a case pending before the judge, however, in reality the case is related to
the decision of the judge to release a person in another case.
Immediately after the complaint of
the lawyers, the Human Rights Defender of Armenia initiated a discussion
process; explanations related to the issues raised by the lawyers were
requested through a letter addressed to the Prosecutor General of Armenia,
discussions with the lawyers took place, and the statement of the Association
of Judges of the Republic of Armenia was analyzed.
Afterwards on the same day, The
Human Rights Defender published a public statement (https://www.ombuds.am/en_us/site/ViewNews/2110 ). The Office of
the Defender has closely monitored the developments in the judge's case.
Immediately after the detention of
Mr. Boris Bakhshyan based on the February 7, 2022 decision of the First
Instance Court of General Jurisdiction, discussion with his lawyers took place
at the Office of the Human Rights Defender.
After the discussions, on the same
day, the Human Rights Defender Mr. Arman Tatoyan visited the Vardashen penitentiary
institution of the Ministry of Justice of Armenia, and had a private interview
with Mr. Boris Bakhshiyan.
On February 7, 2022, the Office of
the Human Rights Defender properly received and analyzed the response of the
Prosecutor General of Armenia. The February 1 statement of the Prosecutor
General on the case of Mr. Bakhshiyan was also analyzed.
The February 2 statement of the
Association of Judges of the Republic of Armenia, along with the presented
concerns, were also analyzed.
Before presenting his position on
the right of Mr. Bakhshiyan, the Human Rights Defender clarifies hat this
statement does not refer to the facts of the accusation against Mr. Bakhshiyan under Article 348(3) of the
Criminal Code of Armenia, and the application of legal rules to them.
The legal analysis of the Human
Rights Defender has reached the following positions:
1. Firstly, the Human Rights
Defender has raised a key legal issue based on the applications of Mr. Boris
Bakhshiyan and his lawyers, the public statements of the latter, and the materials
presented to him
In particular, Mr. Boris Bakhshiyan
is accused of committing an act envisaged by Article 348(3) of the Criminal
Code of Armenia- "blatantly unlawful detention or keeping under
detention", which has caused serious consequences through negligence.
It is clear from the wording that to
accuse someone based on the Article, it is necessary for the detention or the
holding a person under should be blatantly unlawful, that is it should violate
the law or contradict the law blatantly.
In other words, the legality of the
actions of a person detained or kept under detention under the crime enshrined
in Article 348 of the Criminal Code is a necessary and obligatory condition for
the existence of that crime: Without answering the question of the legality,
there can be no talk of the existence of a reasonable doubt.
In this specific case, this implies
that all the documents on prosecuting Mr. Boris Bakhshiyan of an act under
Article 348 of the Criminal Code and depriving him of his liberty must
demonstrate that he committed illegal acts that led to him that led him to make
an illegal judicial act.
Accordingly, the analysis of the two
decisions made by the Supreme Judicial Council regarding Mr. Bakhshiyan
demonstrated that the Supreme Judicial Council, acting as a court, has
discussed the acts of Mr. Bakhshiyan from the viewpoint of their legality, and
the issues related to the legality formed the basis of its decision ((violation
of the right of the accused to be heard in another case, etc.).
From the point of view of legality,
the actions of Judge Boris Bakhshiyan are also discussed in the official
clarifications sent to the Human Rights Defender by the Office of the
Prosecutor General of Armenia on February 7.
Moreover, Mr. Bakhshiyan and his
lawyers (his lawyers also gave public interviews about this) provided the Human
Rights Defender with additional factual data, from which reveal that after the
decisions of the Supreme Judicial Council, the investigator based his motion of
the arrest submitted to the court on the grounds of the legality of Mr. Bakhshyan's
actions and the judicial act made by him.
At the same time, the February 7
decision of the First Instance Court of General Jurisdiction of Yerevan to
detain Mr. Bakhshiyan registers that the Court has not made the legality of the
judicial act of the judge a matter of discussion, and on this basis, did not
refer to the objections of the lawyers of the judge that he had acted within
the law.
However, the court considered it
reasonable and realistic that Mr. Boris Bakhshiyan acted in good faith, independently
and impartially, but did not consider them sufficient to rule out reasonable
doubt, and considered its minimum threshold exceeded.
This implies that on one hand the
court has not considered the issue of legality on the basis of Article 348 of
the Criminal Code, while on the other hand, by not ruling out the existence of
reasonable doubt, and considering its minimum threshold exceeded, has, in fact,
recorded that there might be an issue of illegality.
In such circumstances, a
reasonable observer might wonder how the court decided that a reasonable doubt
is not ruled out, and the minimum threshold has been overcome, meaning Mr.
Boris Bakhshiyan committed an obviously unlawful act despite the fact that he
was not involved in this case at all.
At the same time, the
Supreme Judicial Council discussed the issue of legality with the decision to
grant the consent; the issue was also discussed by the criminal prosecution
body from the same perspective.
Both Mr. Boris Bakhshiyan
and his lawyers maintain that only by discussing the legality of Mr.
Bakhshiyan's acts can the court that detained him evaluate whether there is a
reasonable doubt or not.
Furthermore, during the
private interview with the Human Rights Defender in the penitentiary
institution, Mr. Boris Bakhshiyan stated that the judge that had detained him
did not discuss the issue of legality because it would imply a discussion of a
legal dispute, which would make it clear that the issue was subject to review
by the Criminal Court of Appeal. In other words, the court could not address
the issue of legality since this would demonstrate that there is no basis for
criminal prosecution, but it was obliged to to do it in order to create a basis
for his detention.
2. Mr. Boris Bakhshiyan
stated in the private interview with the Human Rights Defender in the penitentiary
that in January 30, 2022, he was summoned to Yerevan by the Supreme Judicial
Council, but no reason or explanation was given.
The following day, on
January 31, he arrived in Yerevan and went to the Supreme Judicial Council
around 11:00-12:00.
At the Supreme Judicial
Council, he attempted to find out why he was invited, but received no response.
According to Mr. Boris
Bakhshiyan, Article 65 of the Judicial Code of Armenia stipulates that a judge
has the right to be immediately admitted to meet the Chairman of the Supreme
Judicial Council and other members. However, despite his request, he was not
admitted.
According
to Mr. Bakhshiyan, this has added to his sense of insecurity.
3. After waiting for
about an hour at the Supreme Judicial Council, between 12:00-13:00, he was
presented with two motions by the Prosecutor General of Armenia- the consent to prosecute him and deprive him
of his liberty, with the attached materials, and noted that the Council will
hold a session based on these motions the same day. No other information
provided.
Furthermore, Mr.
Bakhshiyan emphasized that he was invited to the Supreme Judicial Council on
January 30, but the motions of the Prosecutor General were submitted to the
Council on January 31 (they are also dated January 31).
According to Mr.
Bakhshiyan, this means that the Supreme Judicial Council knew why they invited
him to Yerevan ahead of time. Nonetheless, the fact that the next day the
Prosecutor General's two motions to consent his prosecution and deprivation of
liberty were going to be discussed was kept a secret.
According
to Mr. Bakhshiyan, the Supreme Judicial Council violated the guarantees of a
fair trial and the right to personal liberty by depriving him the time and
opportunity to prepare for the defense of his rights.
4. Mr. Bakhshiyan and his
lawyers noted that on January 31, between 17:00-18:00, the Supreme Judicial Council
began discussing the first motion in connection with consent to initiate
criminal prosecution.
In other words, Mr. Boris
Bakhshiyan had only a few hours to prepare for the two sessions of the Supreme
Judicial Council, while according to Mr. Bakhshiyan and his lawyers the
criminal prosecution body had been carrying out criminal prosecution actions
provided for by the Criminal Procedure Code of Armenia since January 11, and
the Council was aware of it in advance.
In such cases, it becomes
clear that the defense was placed in an unequal position, deprived of proper
time and opportunities to prepare for the defense of its rights.
5. During the private
interview with Mr. Boris Bakhshiyan, he stated that despite the lack of time
and the difficulties that resulted from it, he invited a lawyer to the Supreme
Judicial Council to participate in the hearing alongside him.
The hearing on the
consent to prosecute ended around 23:00 on January 31.
Following that, according
to Mr. Bakhshiyan and his lawyers, a 10-15-minute break was announced before
discussing the issue of consent to deprivation of liberty.
Moreover, Mr. Bakhshiyan
stated in the private interview with the Human Rights Defender of Armenia that
he had informed the Supreme Judicial Body that during the 10-15 minutes’ short
break before the session on his deprivation of liberty there is not enough time
to effectively organize his defense.
Furthermore, he wishes to invite another lawyer, which cannot be done at
around 23:00, during the intermission announced by the Council.
According Mr. Bakhshiyan
and his lawyers, the Supreme Judicial Council denied the request with demonstrative
reasoning, noting that the time provided was only a brief break.
In this
regard, Mr. Bakhshiyan stated in the private interview with the Human Rights
Defender that because the first session ended around 23:00 on January 31, it
was objectively impossible to invite another lawyer that night, specifically
within a period of 10-15 minutes at most. Even if he could find a lawyer, the
lawyer would be unable to become acquainted with the case's details and
materials. Mr. Bakhshiyan also stated that he did not have the opportunity to
personally prepare for the defense of his rights during the brief intermission.
6. According to Mr. Bakhshiyan,
the session of the Supreme Judicial Council and the decision to deprive him of
his liberty was already made and published on February 1, around 1:00 A.M.
7. The criminal prosecution body
filed the accusation on February 1, and on the same day the investigator filed
a motion for detention to the First Instance Court of General Jurisdiction of
Yerevan.
8. The other issue raised by Mr. Bakhshiyan and his
lawyers is related to the criminal prosecution of Mr. Bakhshiyan, and
consequently to the lack of legality of the accusation and detention. Firstly,
they noted that although the Supreme Judicial Council had stated its position
that as a guarantee of judge's rights, a criminal case could be instituted
against a judge only after the Council had agreed to prosecute him, Mr.
Bakhshiyan had not been given a criminal case decision after the consent of the
Council. According to the complaints, the Council did not raise the issue
during the session of deprivation of liberty either, and did not demand it from
the criminal prosecution body.
Accordingly, Mr. Bakhshiyan noted that this
implied that the decision to initiate a criminal case was either made in
advance, before the first session of the Supreme Judicial Council, or was made
during the break of 10-15 minutes between the first and second sessions, or the
decision to initiate a criminal case was made after the second session of the
Council- that is after giving its consent to deprivation of liberty.
At the same time, Mr. Bakhshiyan has noted that he
rules out that such a decision was taken during the break, since there was the
lack of its technical and organisational possibility, and he had not noticed
that.
9. A factor that has a significant negative impact on
a fair trial, in particular the right to defense and the right to personal
liberty, is that, as the lawyers and Mr. Bakhshiyan insisted, that the consent
of the Supreme Judicial Council to initiate a criminal prosecution before
discussing the issue of the deprivation of liberty was not presented to the
defense.
In other words, the defense did not know the
circumstances or the reasons on which the Supreme Judicial Council agreed to
prosecute, on the basis of which the issue of the consent to the deprivation of
his liberty was initiated.
The Human Rights Defender considers it important
to note that the fact that the motions of the Persecutor General were given to
Mr. Bakhshiyan a few hours before the Session of the Supreme Judicial Council
is not an acceptable reason, since this relates to the decisions of the
consent, which has a different meaning.
Moreover, according to the defense side,
they did not have the two decisions of the session of the Suprmee Judicial
Council. After that, at 17:30, Mr. Boris Bakhshyan was interrogated. They did
not have the decisions of the Supreme Judicial Council at that time either.
These
decisions were obtained only after the interrogation, when the investigator
handed over the attached materials together with the arrest motion to the
defense side.
The
main issue for the Human Rights Defender is that the defense side received the
decisions of the Supreme Judicial Council not from itself, but from the
criminal prosecution body.
It turns out
that the Supreme Judicial Council provided its decisions to the criminal
prosecution body, but not to the defense.
Namely, Mr.
Boris Bakhshiyan did not receive any decisions that require significant
intervention with his rights from the body that made them.
For the Human
Rights Defender, the importance here is that it is about the acting judge and a
body [Supreme Judicial Council] that is envisaged by the Constitution to guarantee
the independence of the courts and judges.
In fact, the
Supreme Judicial Council was obliged to provide the defense with its decisions
in order to maximally guarantee Mr. Bakhshyan's right to fair trial and
personal liberty.
For the Human
Rights Defender, in the specific situation, it is not acceptable to argue that
the law does not provide for such an obligation. Any formal official procedure
or its absence cannot be an obstacle to the constitutional human right and the
real conditions for its implementation.
The Human
Rights Defender agrees with the lawyers and Mr. Boris Bakhshiyan's assertion
that in these conditions they did not have the time and opportunity to properly
prepare their defense, including deprivation of liberty. This refers to the period until the
investigator handed over those decisions to them.
Here, the
Human Rights Defender considers it necessary to mention the decision of the
Court of Cassation No. ԵԿԴ/0136/11/1 of December 22, 2011 of the Levik
Poghosyan’s case, point 31 of which, referring to the constitutional
requirement of the state to be limited as a directly applicable with human
rights and fundamental freedoms, states that the directly applicable right
cannot be abstract.
Moreover, it
is a requirement of the case law of the European Court of Human Rights that the
European Convention on Human Rights guarantees, not in theory and in illusion,
but in practice efficient rights (for example, Artico v. Italy, judgment of 13
May 1980, point 33):
10. At the
same time Mr. Bakhshiyan and his lawyers submitted allegations to the Human
Rights Defender that Mr. Boris Bakhshiyan had been fully prosecuted: all the
evidence of a accusatory nature was obtained before the Supreme Judicial
Council session, starting from January 11.
In other
words, in the period between the decisions of the Supreme Judicial Council and
the court decisions on the arrest of Boris Bakhshiyan չի, the criminal
prosecution body did not carry out reasonable doubt or actions enriching the
grounds for detention.
In these
circumstances, it turns out that the applicants' allegations refer to the fact
that in this way, the guarantee provided by the RA Constitution to deprive the
judge of his immunity was actually annulled and the sessions of the SJC were of
a formal nature and did not serve the purpose of protecting the rights of
judges. Meanwhile, as the RA Court of Cassation fixed in the decision of 20
October 2011 of the Anahit Saghatelyan’s case No. GD5 /0022/01/10 of Anahit
Saghatelyan, the immunity of a judge is a public guarantee of the independence
of the judiciary, and the constitutional norms enshrining it pursue a supreme
legal purpose.
In addition,
the lawyers, referring to the legal positions of the European Court of Human
Rights and the Court of Cassation of the Republic of Armenia, stated in their
complaints that it also testifies to the factual criminal prosecution, that
before initiating a criminal case, the criminal prosecution body had
information that gave them grounds to suspect Boris Bakhshiyan in the act,
which is now charged with him.
The Human
Rights Defender states that this issue is essential from the point of view of a
person's right to a fair trial, and should, therefore, be thoroughly
investigated during criminal proceedings.
11. Mr. Bakhshiyan
raised another issue related to criminal prosecution.
In particular,
according to him, the Supreme Judicial Council responds positively to the issue
of the reasonable doubt referring to a lower threshold: “A reasonable observer
has the hypothesis that the judge may have something to do with the act
attributed to him, that this hypothesis should be thoroughly, completely and
objectively examined”
According to
the applicant, the hypothesis could not be considered a legal category, and
such a formulation could not serve as a basis for initiating criminal
proceedings and, more importantly, to give a consent to deprivation of liberty.
12. The
lawyers and Boris Bakhshiyan also raised the issue that the prosecutor did not
appeal against Mr. Bakhshiyan's judicial act by which he had detained another
person and for which he was being prosecuted. According to the applicants, this
means that the prosecutor involved in the case did not consider that the arrest
warrant of B. Bakhshiyan was lawful.
The Office of
the Prosecutor General of Armenia officially clarified to the Human Rights
Defender that since the decision had already been appealed by a lawyer to the
Criminal Court of Appeal, the prosecutor had not filed another appeal.
The Law on the
Office of the Prosecutor General is important here, according to Article 27 (1)
of which the prosecutor participating in the case is obliged to appeal a
judicial act that has not entered into legal force, which, in his/her opinion,
has no ground or is unlawful. In these circumstances, the Human Rights Defender
does not consider acceptable the reasoning of the Prosecutor's Office on the
issue of not filing a complaint to the Court of Appeals by the prosecutor
involved in the case.
It is obvious
that such a comment by the Office of the Prosecutor General generally calls
into question its competence to appeal judicial decisions.
Therefore, the
Office of the Prosecutor General must give a substantive answer, and if they
really consider Mr. Boris Bakhshiyan's judicial act unlawful, then the
prosecutor participating in the case should have been held responsible for not
fulfilling the requirement of the RA Law on the Prosecutor's Office, as a
mandatory rule provided by law.
Thus, the
Human Rights Defender states that all the above-mentioned issues are of a
nature that have led to the violation of the Mr. Boris Bakhshiyan’s right to
fair trial and constitutional and international guarantees of personal liberty.
The
allegations of Mr. Boris Bakhshiyan and his lawyers should be thoroughly
examined, which are of a nature that can be found in criminal proceedings and
are problematic from the human rights perspective.
14. Mr. Yerem
Sargsyan asked the Human Rights Defender another question: according to him, it
is obvious that there is a conflict of interest between the First Instance
Court and the Courts of Appeal. This issue was also raised by judge Boris
Bakhshiyan.
The point is
that the father of the judge who made the arrest decision against Boris
Bakhshiyan is serving as a judge in the Criminal Court of Appeal. It is true
that the latter does not have a judicial control function over the pre-trial
proceedings, but is a member of the same court. Hence, the applicants claim
that there is a conflict of interest, and this fact makes the Court of Appeal
an improper court in this case from the outset.
15. In order
to prevent any misinterpretation and further distortion of this statement, the
Human Rights Defender specifically states that he has consistently criticized
the practice of abuse of custody by the courts but this statement refers to the
protection of the rights of a person in a specific situation, in a specific
case, Mr. Boris Bakhshiyan.
This is a case
that contains real dangers of spreading towards those judges in the future, who
have released people from detention.
16. The Human
Rights Defender of Armenia views the criminal case against Mr. Boris Bakhshiyan
from the point of view of systemic dangers for the independence of the
judiciary and the independence of a judge in the Republic of Armenia.
17.This case
is also important from the point of view of the judge's competence to make a
decision in a particular situation and at the same time the legality of
prosecuting a judge for that decision. This, in turn, will raise another systemic
question as to what is meant by the term "obviously illegal" in
Article 348 of the RA Criminal Code.
The
prosecution cannot replace an appeal against a judicial act in the prescribed
manner, unlawfully undermining its significance.
18.It is also
necessary to ensure the necessary publicity during the examination of the case
for a higher level of public scrutiny over it, taking into consideration the
public fair interest in the case.
9. The Human
Rights Defender's Office continues the discussion on the rights of Mr. Boris
Bakhshiyan of the First Instance Court of General Jurisdiction of Syunik
province.
Arman
Tatoyan
The
Human Righst Defender of Armenia
Հայերեն
