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On 15 May 2020, Lori region General Jurisdiction Court made a decision to reject HCA Vanadzor advocate Arayik Zalyan’s appeal.
The appeal concerned the provision of the decision on discontinuing the criminal case related to “Lori healthcare” foundation. Let us remind that the problem concerned the “voluntary” annual transfer of 1% of Vanadzor No. 1 Polyclinic employee A.S.’s salary to “Lori healthcare” foundation, as a result of which he suffered property damage. HCA Vanadzor advocate A. Zalyan is the defender of A.S.’s interests.
In 2019 HCA Vanadzor touched upon the problems of A.S. and foundations founded in Lori regional administration in general.
Last year A.S. applied to the Governor of Lori region in order to receive information on the activity of the foundation and was informed that the Governor had sent materials to the RA Prosecutor’s Office to examine the foundation’s activity and the condition of its membership being compulsory.
In order to be informed regarding the process of initiating a criminal case based on them and to be recognized as the victim in the case, A.S. applied to Lori region Prosecutor. The region’s Prosecutor sent him a response letter and informed him regarding the initiated criminal case. Thus, the case was initiated on 30 July 2018 based on the report made in Spitak division by Spitak Medical Center neurologist according to features of Article 179 part 2 points 1 and 2 of the RA Criminal Code. However, a year later, the body conducting the proceedings discontinued the criminal case based on the absence of the criminal incident. In 2019, in this regard, HCA Vanadzor advocate A. Zalyan applied to RA Lori region Prosecutor asking to provide the decision on discontinuing the criminal case. Prosecutor A. Avagyan of Lori region Prosecutor’s Office refused to provide it, reasoning that A.S. had no procedural status in that case.
In order to protect the citizen’s violated rights, A. Zalyan made an appeal to the RA Prosecutor General against the decision of Lori region Prosecutor, claiming to oblige him to provide the decision on discontinuing the criminal case proceeding.
The Prosecutor General’s Office sent HCA Vanadzor advocate’s appeal to Lori region Prosecutor for discussion.
On 16 December 2019, A. Avagyan, Lori region Prosecutor, 2nd class justice advisor, informed A. Zalyan in his letter that the decision on discontinuing criminal case proceedings could not be provided according to Article 262 part 1 of the RA Criminal Procedure Code, which clearly enshrines the circle of persons to whom the decision on discontinuing the criminal case proceeding and stopping criminal prosecution is sent.
Later A.Zalyan appealed to Lori region General Jurisdiction Court claiming to oblige the body conducting the proceedings to eliminate violations of A.S.’s rights and freedoms. The Court refused it.
Finding that Prosecutor A.Avagyan’s refusal of the appeal against the decision made in 2019 was ungrounded, A. Zalyan filed an appeal against the subordinate court instance decision of 15 May 2020.
Thus, the court of first instance found that the justification of the refusal of the appeal was that in the frame of this criminal case, A.S. had not been interrogated as a witness, had not been recognized as a victim, therefore it was legal for the body conducting the proceedings not to provide his representative with the decision on discontinuing the criminal case proceedings. It is noteworthy, however, that while examining the appeal, the Court never gave an assessment to the condition that A.S. did not have any status in the frame of the criminal case: did the body conducting the proceedings ensure the participation of all the persons related to the case, were all the persons related to the case informed that the case had been initiated, including A.S.? In what conditions was A.S. informed about the initiation and discontinuation of the case? The condition of not having any status in the frame of the criminal case should have been recorded only after all this. The above-mentioned statement also becomes obvious from the facts discovered as a result of the examination of the appeal that in the frame of the criminal case, the body conducting the proceedings had interrogated various witnesses, including medical workers. In this situation, it is more than incomprehensible why the body conducting the proceedings did not interrogate A.S.. Ultimately, as a result he was deprived of the opportunity to transfer the relevant information to the body conducting the proceedings.
HCA Vanadzor advocate used a number of factual and legal justifications to substantiate the condition that the Court’s conclusion was ungrounded.
In his appeal, A. Zalyan invoked a number of local and international legal documents. In particular, RA Constitution and RA Criminal Procedure Code, Article 58 of which states, “1. The person is recognized as the injured, in respect to whom bases are available to suppose, that a moral, physical or proprietary damage has been caused to him/her directly by a deed forbidden by Criminal Code.(...) 2. The decision on recognition as an injured is passed by the body of inquiry, the investigator, the prosecutor or by the court”.
According to Article 59, part 1, point 9, “The injured has the right, in the manner prescribed by this Code to get acquainted with all materials of the case, from the moment of accomplishment of the preliminary investigation, make copies from them and to write out from the case any data in any volume”.
In A.S.’s case, together with the letter addressed to the RA Prosecutor General, proofs were presented that as a result of “Lori healthcare” foundation activity, property damage was caused to A.S. in the form of annual transfer of 1% of the salary to the account number of the foundation. Not being aware of the initiated criminal case, A.S. objectively had no chance to be involved in the criminal case as the injured party. While the states’ obligation to take measures to satisfy the needs of victims and to protect their interests is also established in the relevant UN Resolution on Basic Principles of Justice for Victims of Crime and Abuse of Power, according to which, “(...)Victims are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered”.
In his appeal, A. Zalyan also made a reference to Recommendation of the Committee of Ministers to member states on assistance to crime victims, according to which, “States should ensure that victims have access to information of relevance to their case and necessary for the protection of their interests and the exercise of their rights”.
Summing up the above-mentioned, HCA Vanadzor advocate stressed that the right to the protection of rights and freedoms, including judicial protection, is a subjective right. The principle of the state’s positive obligation is in place to create the relevant structures to recognize, protect and ensure the implementation of those rights and freedoms.
Judicial supervision over pre-trial proceedings is also one of those structures. In this context, in the appeal A.Zalyan invoked positions of the RA Cassation Court and the European Court of Human Rights, claiming that when considering the case in the light of those legal regulations, it becomes clear, that in this case, one of the most important aspects of criminal procedure, i.e. protection of the victim’s rights and legal interests was not ensured. The victim’s participation in the process of the criminal case investigation is the real guarantee of comprehensive, full and objective examination of the criminal case circumstances.
After the criminal case proceeding was discontinued, the victim of the alleged crime appeared, who was supposed to have a chance to familiarise with the criminal case materials.
Combining the factual circumstances of the case and the above-mentioned legal provisions, it is noteworthy that the criminal case was initiated based on the incident that Spitak medical center employees had compulsory membership to “Lori healthcare” foundation and certain money transfers were made from them. Thus, it is the same foundation, to which 1% of A.S.’s salary (as well as salaries of Vanadzor No. 1 Polyclinic employees) was transferred for 5 years on end during 2013-2018. While A.S, who was directly related to the transfers in the criminal case, was deprived of the opportunity to express his position and appeal the decision of the body conducting the proceedings, since the process of the investigation of the case was not accessible to him and he learnt about the existence of the case only from Lori region Governor’s letter.
It turns out that in the sense of Cassation Court decisions, he has the right to apply to court and to appeal to the superior body the decision made by the body conducting the proceedings, which is directly related to A.S.’s rights and interests. Instead, the body conducting the proceedings did not provide A.S. with the decision concerning his rights and legal interests and the judge who examined the appeal considered it legal, which entailed a violation of criminal procedure rights by depriving him of the chance to get to know the content of the relevant decision and appeal it in a judicial procedure.
As a result, not having information on the criminal case and its process was an obstacle for the implementation of A.S.’s criminal procedure rights, which, in its turn, adversely affected the complete, objective and comprehensive investigation of the criminal case.
The examination of the case makes it obvious that the whole decision of the court contains direct statement of facts from the case materials, and in such conditions, the facts presented by A.Zalyan to the court were not taken into examination, which resulted in the violation of A.S.’s right to a fair trial.
Taking into account the aforementioned and based on a number of provisions of the RA Criminal Procedure Code, HCA Vanadzor advocate A. Zalyan asked the Appeal Court to overturn the decision of Lori region General Jurisdiction Court of 15 May 2020 and send the case to the subordinate court for a new examination or to make a new judicial act by obliging the body conducting the proceedings to eliminate violations of A.S.’s rights and freedoms.
By examining the legal analyses formulated in the appeal, the Appeal Court recorded that this criminal case was related to A.S.’s rights and legal interests. He must have an opportunity to familiarize with the decision on discontinuing the criminal case in order to appeal it, if necessary. In terms of implementing this right, provision of the decision to discontinue the case is highly important.
The Appeal Court came to the conclusion that not providing A.S. with the conclusion of the court of first instance and the decision on discontinuing the criminal case was not properly grounded and reasoned and this entailed the violation of his rights and freedoms, in particular, the right to effective investigation.
Based on the aforementioned, on 1 July 2020, the RA Appeal Court made a decision to uphold HCA Vanadzor advocate A.Zalyan’s appeal and at the same time overturn Lori region Court of First Instance decision of 15 May 2020 and oblige the body to eliminate violations of A.S.’s rights and freedoms.