The advocates of
the second President of Armenia, Robert Kochayan, addressed complaints to the
Human Rights Defender.
A discussion
procedure was initiated by the Defender’s decision in this regard. In the
framework of this procedure, among other questions, issues raised by Robert
Kocharyan during the private interview were also considered. The Human Rights
Defender also received complaints from other citizens regarding Robert
Kocharyan’s rights protection.
1) One of the
raised issues concerns the following: the day after Robert Kocharyan’s first
detention at the “Yerevan-Kentron” Penitentiary Institution on 28 July, 2018, his
visits and telephone conversations with close relatives, mass media and other
persons, as well as the contact with outside world were prohibited by the
investigator’s decision. Later on, this prohibition was partially withdrawn for
some of the close relatives, but was maintained for one of his sons. According to
his advocate, According to the lawyer, this decision is no longer legal and has
no basis for application.
In particular,
as stated by Robert Kocharyan’s advocate in the complaint addressed to the
Human Rights Defender, the penitentiary institution prohibited visits and
telephone conversations of Robert Kocharyan based on a decision made by the
investigator at the preliminary investigation stage and right after his first
detention, regardless the fact that Robert Kocharyan’s case was already in the
court and the last time he was detained during the stage of court proceeding. Thus,
according to the advocate, the penitentiary institution had no right to
prohibit Robert Kocharyan’s contact with the outside world, especially with a
close relative without the court’s decision.
The Human
Rights Defender addressed an official letter to the RA Ministry of Justice to
receive necessary clarifications in this regard. After analyzing received clarifications,
the Defender sent an additional letter to the Ministry with relevant
justifications and recommendation.
2) The other
issue raised by Robert Kocharyan, his advocates and by a number of citizens is
that Robert Kocharyan’s detention is illegal. Besides, according to them, the
immunity of Robert Kocharyan is ignored, the court proceedings are postponed, and
court sessions are not taking place, violating his right to a fair trial and
personal liberty. The advocates stated that the court does not discuss submitted
motions, including those on release from detention, application of a bail, court
hearings have not been scheduled, even though a new judge has been placed.
Due to the
nature of the issues raised by the advocates, they can be examined only by the relevant
authority carrying out the proceeding, in this specific case, the court.
By this
statement, the Human Rights Defender finds it necessary to clarify that the
Constitutional Law on the Human Rights Defender prohibits the Defender to
interfere or to initiate discussion procedure for those issues which relate to
the exercise of judges’ powers in a specific case. Therefore, guided by the mandate
prescribed by the law, the Defender refrains from assessing or carrying out any
activity that is beyond the above mentioned legal regulation.
Nevertheless, these
issues are under the Defender’s attention and monitoring since they relate to
the person’s constitutional rights.
The Defender states,
that from the perspective of the state’s positive obligation, relevant state
official should make maximum efforts concerning detention issues and, more generally,
the deprivation of liberty, to guarantee all the rights of every individual
deprived of liberty. In all cases, it should be taken into consideration that
detention is a high degree of interference with individual’s personal liberty,
and when challenging the lawfulness of deprivation of liberty, such issues require
immediate actions by the public authorities. The issue is even more urgent when
the judge has been changed, the investigation should be resumed and the
detention issues should be one of those to be considered immediately.
3) The Human
Rights Defender thoroughly examined the decision of the Constitutional Court
issued on 4th September 2019 (ՍԴՈ-1476) based on Robert Kocharyan’s
application.
Through this
decision both individual and general measures were prescribed.
In this
statement, the Defender will not refer to the individual measures provided by
the Constitutional Court’s decision, since they relate Robert Kocharyan’s case
and are under the court’s jurisdiction.
General
measures established by the Constitutional Court are of systemic nature and
relate or may relate to the rights of any state official who is, according to
the court, under special protection and finds himself in a similar situation.
Thus, the Human
Rights Defender finds it necessary to underline the Constitutional Court’s
general measure that establishes an obligation for the legislator: “…the
legislator should define definite regulations, which, in terms of functional
immunities, will enable prosecutorial control and judicial supervision over
pre-trial criminal proceedings, as well as, in addition to general measures,
will enable to assess the criminal prosecution towards those enjoying
functional immunities and thus, the lawfulness of the application of detention”.
Thus, this
question should be considered as a systemic problem requiring solution. It
pertains not only the former President, but also has a significant importance
for the human rights system of the country, because, it relates to the
functional immunities of the Human Rights Defender, Deputies of the National
Assembly, judges and other state official enjoying special protection.
Described
issues will continue to be under the Defender’s attention.
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