YEREVAN. – The prosecution against the president of the Constitutional Court, Hrayr Tovmasyan, contradicts not only the national legislation of the Republic of Armenia (RA), but also the European Convention on Human Rights. Former Prosecutor General of the RA and former representative of the Government of Armenia to the ECHR Gevorg Kostanyan, told this to Past Info.
“The Special Investigation Service [(SIS)] has launched a criminal case on the fact of usurping power, and in the decision to open a criminal case, which I have read on one of the websites, the name of the President of the RA Constitutional Court Hrayr Tovmasyan is simply mentioned,” Kostanyan said. “Not even discussing the presence of elements of crime, there is a very important circumstance here that contradicts the principles of Articles 6 and 5 of the European Convention on Human Rights. A judge of the Constitutional Court may be indicted, a decision may be made to involve him as a defendant if the Constitutional Court has given its consent; this is a requirement of the Constitutional Law on the Constitutional Court.
“The European Convention defines when a person is considered to be a defendant (…), and the European Court of Human Rights has simply specified that when a particular person is named in any process to launch criminal proceedings, that person is considered a defendant.
“Given that under our constitutional law, the judge and the president of the Constitutional Court can be defendants solely with the permission of the Constitutional Court, before noting the name of the President of the Constitutional Court Hrayr Tovmasyan in deciding to institute a criminal case, they had to have the Constitutional Court’s consent because they recognized Hrayr Tovmasyan, in fact, as a defendant when launching the criminal case.”
As per Kostanyan, at this phase it can already be stated that, “According to precedent decisions of the European Court, the criminal case instituted by the SIS contradicts the Convention, and if the criminal case was opened in breach of the Convention, it means that the whole criminal proceedings and its consequence was automatically committed in violation of the requirements of the Convention.”
Asked if the decision to launch a criminal case can be appealed, he said: “Given that the decision to institute a criminal case in the light of ECHR precedent decisions is, in essence, regarded as a decision to involve a defendant, not formally, but in the substantive sense, then yes, the decision to institute [the proceedings] is subject to appeal as well.”
To the remark that there is no person with a judicial status, Kostanyan noted: “Formally speaking you are right, we don’t have. But considering that we already have in content—it’s Hrayr Tovmasyan, and consequently, Hrayr Tovmasyan is already prosecuted in content despite the constitutional prohibition about the Constitutional Court. Therefore we can record that the launching of the criminal case is unlawful, it contradicts the requirements of the European Convention and, at the same time, although Hrayr Tovmasyan is not involved as a defendant in formality, in substance he is regarded as a defendant in the sense of the European Convention.”