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On participation of A. Razgildeyev, serviceman of the Russian military base located in Gyumri, in the court session on the case of J. Ghukasyan’s death

June 30, 2020

Activities | Legal Support | Legal Support | Project։ Stability of HCA Vanadzor in the light of democracy and human rights challenges in the Republic of Armenia 2020 | Publications | News | Julieta Ghukasyan

On 2 December 2018, in Mayakovsky street of Gyumri city, the 102nd Russian military base serviceman Andrey Razgildeyev, under the influence of alcohol, cruelly beat RA citizen, Gyumri city resident Julieta Ghukasyan, by deliberately hitting her on the head and on various parts of the body, after which he fled. As a result of the injuries, J. Ghukasyan died on the same day in Gyumri Medical Center. 

 

For the commission of the above-mentioned act, A. Razgildeyev was charged under Article 112 part 2 clause 14 of the RA Criminal Code (Infliction of willful heavy damage to health) and arrest was chosen as a measure of restraint. Since the decision was taken, Razgildeyev has been serving his arrest in the territory of the 102nd Russian military base. The body conducting the proceedings and the prosecutor conducting control of the criminal case dismissed the petition made by the representatives of the victim’s legal successor to transfer Razgildeyev to an RA penitentiary institution in accordance with the RA Criminal Procedure Code. The decision was left unchanged also after litigating it in court, after which a complaint was filed with the European Court of Human Rights.  

 

Since 16 August 2019, when Shirak Marz (Region) General Jurisdiction Court received the case to examine the merits connected with the condition that A. Razgildeyev was serving his arrest in the 102nd Russian military base, court sessions have not been held, as the commander of the 102nd Russian military base refuses to bring A. Razgildeyev before the Court on the grounds of apparently illegal reasoning. 

 

In this publication we present the whole picture of the created situation. First, we find it necessary to touch upon the fact that A. Razgildeyev serves his arrest in the 102nd Russian military base and the legal ground of serving the punishment (arrest) in such conditions. This is a condition that is crucial in regard to the fact that up to date the Court has not been able to start the examination of the case on the merits. 

 

Thus, by dismissing the petition made by the representatives of the victim’s legal successor to transfer A. Razgildeyev to the RA penitentiary institution, both the preliminary investigation body and the prosecutor conducting control of the criminal case invoked Article 8 of the “Agreement between the Russian Federation and the Republic of Armenia on jurisdiction and mutual legal assistance in cases related to the presence of Russian military base on the territory of the Republic of Armenia” (hereinafter referred to as Agreement) signed between the Republic of Armenia and the Russian Federation on 29.08.1997 and reasoned, “After the detention, to be held deprived of liberty, Andrey Andreyevich Razgildeyev could not be transferred from the territory of the Russian military base to the relevant RA institution of     holding persons deprived of liberty, as it contradicts the RF legislation”. 

 

However, as we have repeatedly stated, in the frame of this criminal case, the RA Criminal Procedure Code and the RA Law “On treatment of arrestees and detainees” should have been applied, since, according to Article 4 of the Agreement, “In cases of crimes and other offenses committed in the territory of the Republic of Armenia by members of the Russian military base and by family members of those persons, the legislation of the Republic of Armenia is applied, and the case is investigated by RA competent authorities”. Instead of taking measures to comply with the requirements of the RA legislation and transfer to the RA penitentiary institution the person who committed a grave crime against an RA citizen, RA competent bodies claim, without any legal ground, that such an action will contradict the RF legislation, without specifying what legal norm would contradict the transfer of A. Razgildeyev to an RA penitentiary institution. With regard to the condition that A. Razgildeyev really serves his punishment, we find it necessary to state once more that since the day of the arrest, the victim’s legal successor and the latter’s representatives have not had any information on the conditions in which A. Razgildeyev is arrested and whether he is subjected to pressure by the management of the base or not.  

 

Due to the concerns raised by us and based on our application, the RA Human Rights Defender visited A. Razgildeyev. However, the Defender stated that the visit was not aimed at examining the conditions where A. Razgildeyev was held or other conditions, and did not give any essential information. Thus, A. Razgildeyev was unavailable even for the RA Human Rights Defender.  

 

As already mentioned above, since the day Shirak Marz General Jurisdiction Court received the criminal case, court sessions have not been conducted. In particular, court sessions were postponed for the following reasons:

 

  • Shirak region Prosecutor K. Gabrielyan was on vacation (06.09.2019), 
  • V. Mirzoyan, deputy of Shirak region Prosecutor K. Gabrielyan, was at the regular attestation of prosecutors in the RA Prosecutor General’s Office (25.10.2019), 
  • Judge A. Ghukasyan was in ill health (28.10.2019), 
  • police accompanying platoon was overloaded and could not bring the charged A. Razgildeyev to the Court (14.01.2020). 

 

It should be stated that in the RA judicial practice, court sessions are not held on such grounds also in the examination of other cases. In this case, however, we face totally “new” grounds of postponing court sessions, which fall out of the scope of RA procedural legislation. In these terms, we find it necessary to present in detail the actions of the command staff of 102nd Russian military base and then also actions taken by the party supporting the charge in the court and the Court itself.  

 

In particular, during the court session scheduled for 4 February 2020, N. Martinyuk, commander of the 102nd Russian military base military unit, made a petition to the court to postpone the session, since, according to him, the Ministry of Defense of the Russian Federation had not received written guarantees from the Armenian side in regard to ensuring the safety of A. Razgildeyev and persons accompanying him. After making such a petition, it was obvious that the real aim of the command staff of the military base was not to receive written guarantees of safety, but to impede the appearance of A. Razgildeyev in the court sessions.  

 

As we have already stated, the 102nd Russian military base commander N. Martinyuk’s claim to present written guarantees of the safety of A. Razgildeyev and persons accompanying him has no legal and factual grounds. In the RA territory, the procedure of criminal case proceedings is established by the RA Constitution, RA Criminal Procedure Code, RA constitutional law “RA Judicial Code” and other laws adopted accordingly. None of the mentioned legal acts defines a requirement addressed to any of the RA state bodies to present written guarantees of safety for the person charged and the accompanying persons. In other words, by not bringing A. Razgildeyev before the Court and by claiming written guarantees of safety for A. Razgildeyev and persons accompanying him, the Russian military base, in the face of its commander and the RF Ministry of Defense, acts out of the requirements of the RA Constitution and the Republic of Armenia as a sovereign state, and at the same time, grossly violates the requirements of the norms of Armenian-Russian agreements. By this conduct, the Russian military base impedes the administration of justice in the territory of the Republic of Armenia. In particular, by not bringing before the court A. Razgildeyev, the defendant in the criminal case No. ՇԴ/0058/01/19 examined in Shirak Region General Jurisdiction Court, and by claiming written guarantees of safety for A. Razgildeyev and persons accompanying him, the Russian military base hinders the activity of the Court and deliberately does not fulfill the lawful requirement of the Court to bring A. Razgildeyev before the Court. And since the above-mentioned facts, combined, indicate the commission of a crime envisaged by the RA Criminal Procedure Code, and as established by the procedure of the RA Criminal Procedure Code, should have become  a subject of discussion in the frame of a criminal case and received a criminal legal assessment, on 07.02.2020, the Organization applied to the RA Prosecutor General with the matter of initiating a criminal case and give a criminal legal assessment to the factual circumstances mentioned in the report. However, the Organization never received any decision regarding the presented report. As a result, on  20.03.2020, the Organization applied to General Jurisdiction Court of Yerevan, claiming to oblige the RA Prosecutor General to make a decision on the grounds of Article 181 of the RA Criminal Procedure Code, based on the crime report, and to provide it to the Organization. In the frame of the mentioned court case, a concluding judicial act has not been made yet. 

 

During the court session on 06.03.2020, after making the crime report, the representatives of the victim’s legal successor made a petition to the Court to take measures to eliminate the obstacles to the administration of justice, in particular, by making a decision to initiate a criminal case against the commander of the 102nd Russian military base or by applying to the Prosecutor’s Office with a relevant petition. So far, the petition made has not been discussed by the Court, since the prosecuting and defending parties do not appear before the Court to express their positions in regard to the petition.

 

On 13 May 2020, A. Sakunts, representative of the victim’s legal successor, applied to e A. Ghukasyan, the judge hearing the case, asking to provide information on what steps had been taken by the Court to eliminate the obstacles to the administration of justice in criminal case No. ՇԴ/0058/01/19, that is, steps taken to bring A Razgildeyev before the Court. In response to the inquiry, certain procedural documents were provided. The study of those documents confirms our position that from the very beginning, the command staff of the 102nd Russian military base did not want to bring A. Razgildeyev before the Court and had a purpose to conduct the legal procedure in the territory of the military base.  In particular, on 04.09.2019, before the first court session scheduled for 06.09.2020, the Russian military base commander N. Martinyuk applied to the Judge of Shirak Region General Jurisdiction Court and stated that the RF legislation allows the legal procedure to be conducted only in the territory of the military base. In the letter, the commander of the military base mentioned legal norms of the “Agreement on the Russian military base in the territory of the Republic of Armenia” signed between the Republic of Armenia and the Russian Federation on 16.03.1995, Article 61 part 1 of the RF Constitution, Article 464 part 1 of the RF Criminal Procedure Code and Article 57 clause 1 subclause a) of the Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases of 22 January 1993, and expressed his position that an RF citizen cannot be extradited to another state.  N. Martinyuk also invoked Article 41 part 3 of the RA Criminal Procedure Code, which establishes that the judge hearing the case can make a decision to conduct an outgoing court session, if it stems from the interests of the efficiency of the administration of justice.

 

As we can see, the commander of the Russian military base qualifies bringing A. Razgildeyev to the RA court as extradition to another state. Such an interpretation is apparently groundless: first, the Russian military base is in the RA territory, namely, in Gyumri city, and not in the RF territory, while a legal process of extraditing an RF citizen is possible in case the RF citizen is in the territory of the Russian Federation. Besides, in the case under discussion, the crime was committed against a citizen of the Republic of Armenia in the territory of the Republic of Armenia, hence, from legal point of view, extradition cannot take place. It is noteworthy that in 07.10.2019 response letter addressed to the commander of the military base, the Court, too, expresses such a position and adds that it is impossible to extradite a person who is already in the territory of the state making an inquiry, i.e. in the Republic of Armenia. At the same time, touching upon the 102nd Russian military base commander’s claims regarding the immunity of the military base serviceman, the Court rightly states that such regulations are not established in the “Agreement on the Russian military base in the territory of the Republic of Armenia” signed between the Republic of Armenia and the Russian Federation on 16.03.1995, therefore, in this case, Article 4 of the Agreement is to be applied, ““In cases of crimes and other offenses committed in the territory of the Republic of Armenia by members of the Russian military base and by family members of those persons, the legislation of the Republic of Armenia is applied, and the case is investigated by RA competent authorities”. At the same time, it is noteworthy that in the response letter, the Court assures the commander of the military base that the safety of A.Razgildeyev and persons accompanying him will be properly ensured during the court sessions. However, in his next letter, N.Martinyuk states that the local authorities have not responded to Levon Barseghyan’s (Head of the Board of Trustees of Gyumri State University) announcement regarding the Russian servicemen, and hence Martinyuk assumed that there are grounded suspicions regarding guarantees of safety of RF citizens in the Court building. Whereas, it is obvious that such a position is just a pretext not to bring A. Razgildeyev before the Court, since regardless of the resonance of the case, so far there has been no danger in regard to ensuring the safety of the Razgildeyev and persons accompanying him. In other words, the resonance of the case is not yet a necessary ground to ensure the safety of the person charged, and the place of conduction of court sessions and the means of the Court are fully sufficient to conduct the court hearings in a normal manner. 

 

With regard to conducting an outgoing court session in the territory of the military base for the sake of the effectiveness of administration of justice based on Article 41 part 3 of the RA Criminal Procedure Code, first of all, it should be stated that in this case, administration of justice has not yet taken place, hence, speaking about the effectiveness of a process that has not even started yet is apparently ungrounded and illogical.  

 

In the letter addressed to the Court on 24.04.2020, the commander of the 102nd Russian military base attributes not bringing A. Razgildeyev before the Court to a new condition, by invoking coronavirus pandemic in the RA, and suggests conducting the court hearing via video connection.  In a letter of a similar content addressed to the Court on 18.06.2020, N. Martinyuk presents the situation in the RA and Gyumri city caused by the pandemic and states that bringing A. Razgildeyev before the Court puts under danger his health and the health of persons accompanying him, and once again suggests conducting the court hearings in the territory of the military base via video connection. As we can see, the commander of the military base finds a new reasoning to refuse to bring the charged person before the Court. This means that before the pandemic, the Russian military base commander used the absence of Razgildeyev’s safety guarantees as a pretext, but in the conditions of coronavirus pandemic, he no longer invokes that condition and instead, he invokes the fact of the pandemic. As to the conduction of the court session via video connection, it is not possible, because the Criminal Procedure Code does not envisage such a procedure of conducting litigation. And in regard to the claims of endangering the health of Razgildeyev and those accompanying him, it should be stated that the military base servicemen serve their service and reside in Gyumri city, i.e. in the place, where, according to the claims of N. Martinyuk, there are quite a lot of coronavirus-infected persons. Thus, there can be no mention of endangering the health of servicemen who make a part of Gyumri population and who live their daily lives in Gyumri after their service. Thus, it is obvious that the Russian military base commander’s actions indicate that they are aimed at hindering, in all the possible ways, charged A. Razgildeyev’s participation in court hearings.  

 

In the frame of the above-mentioned actions of the 102nd Russian military base, it is also necessary to touch upon the conduct of the Prosecutor’s Office, which supports the charge in this criminal case. 

 

As it has already been mentioned, the body of preliminary investigation dismissed the petition to transfer A. Razgildeyev to an RA penitentiary institution, after which it was appealed in Shirak Marz (Region) Prosecutor’s Office. Examining the appeal, the Prosecutor conducting control found that the transfer of A. Razgildeyev to an RA penitentiary institution would contradict the RF legislation. Moreover, when representatives of the victim’s legal successor litigated the legality of the decision, during the court hearings the Prosecutor also claimed that such a process would contradict the legislation of the Russian Federation. As a result, A. Razgildeyev continued serving his arrest in the 102nd Russian military base. As a consequence, so far it has not been managed to ensure that the charged person be brought before the RA Court. Needless to say that in case of being in the RA penitentiary institution, Razgildeyev’s presence in court hearings would be ensured the same way as it is in case of persons serving their arrest in the frame of other judicial cases, and in such conditions, there would be no obstacles to the administration of justice, and the Court would be able to start the examination of the merits of the case.  

Continuing to speak about the conduct of the Prosecutor’s Office, it should be stressed  that the latter did not take the necessary measures in the frame of its powers in order to eliminate the obstacles to the administration of justice and bringing A. Razgildeyev before the Court. Furthermore, the Prosecutor’s Office actually manifested inaction in regard to the crime report presented by the Organization and did not provide any response to the Organization. 

 

Instead of initiating a criminal case on the grounds of impeding the administration of justice and failing to comply with the lawful requirement of the court, and giving a criminal legal assessment to the mentioned conditions, the Pprosecutor’s Office preferred not to take any action in regard to the 102nd Russian military base commander, who refuses to bring before the Court the person who committed a grave crime against a citizen of the Republic of Armenia. It should be noted that among other situations, it is in this kind of situations where  actions by the prosecutor supporting the charge in the court are essential.  In other words, based on its status, the Prosecutor’s Office has an obligation to take active actions to start the examination of the case on its merits in the court and to hold criminally liable the person who has committed the crime. Those actions should first of all be manifested in the form of giving criminal legal assessments to actions of persons who fail to perform the lawful requirements of the Court, which, however, has not been done so far. 

 

Touching upon the actions of the Court examining the case, we record the following.

 

As it has already been mentioned, on 13 March 2020, we applied to Shirak Region General Jurisdiction Court Judge A. Ghukasyan, asking to provide information on what steps had been taken by the Court to eliminate the obstacles to the administration of justice in criminal case No. ՇԴ/0058/01/19, that is, steps taken to bring A Razgildeyev before the Court. The staff of the judge provided certain procedural documents to representatives of the victim’s legal successor. Having examined the provided documents, we found out that as the only competent body administering justice, the Court has not made and is not making sufficient efforts to eliminate obstacles to the administration of justice and to start the examination of the merits of the case. In particular, among the received procedural documents, there are only two documents on the Court’s actions, namely, the response letter to the 102nd Russian military base commander’s letter of 04.09.2019 addressed to the Court, and the letter of  23.03.2020 addressed to R. Vardazaryan, Chairman of the Supreme Judicial Council. 

 

The first document, about which we have already spoken, contains information on the legal grounds for bringing defendant A. Razgildeyev to the Court and guarantees of the conduction of safe hearing of the case in Shirak Region General Jurisdiction Court. At the same time, it is noteworthy that presenting a legal position in regard to bringing the defendant to the Court and the possibility of conducting safe hearing of the case, at the end of the letter, Judge A. Ghukasyan, “asks” the military base commander to take measures to ensure the presence of the person charged in the Court. It should be mentioned that criminal liability is envisaged for impeding the administration of justice, and as the body implementing justice, the Court has an obligation to take the necessary measures to eliminate and exclude such obstacles, since refusing to implement justice or, in other words, not implementing justice is inadmissible. This is also enshrined in Article 41 part 1 (titled “Powers of the Court”) of the RA Criminal Procedure Code.  Hence, in this context, instead of “asking” the military base commander to take measures to ensure the presence of the defendant in the Court, the Court should have made a petition to the Prosecutor’s Office and it would have been considered and assessed as initiation of the relevant measure aimed at eliminating obstacles to administration of justice. Nevertheless, we state that during the whole period of the examination of the case, the Court has not made such a petition to the Prosecutor. 

 

In regard to the other letter (reflecting the actions of the Court) addressed to the Chairman of the Supreme Judicial Council, having examined it, we can state that it shows that A. Ghukasyan gives R. Vardazaryan, Chairman of the Supreme Judicial Council, information on the court sessions of the criminal case and reasons for postponing them. However, in the letter of the Court addressed to the Chairman of the Supreme Judicial Council, there is no announcement in regard to their intervention in its activity in connection with administration of justice, based on which the Supreme Judicial Council has the power to apply to a competent body to hold the guilty liable.  While, in our view, in the case under discussion, the above-mentioned facts combined not only give the right, but also oblige the Court to make such an announcement.  

 

Therefore, we record that the Court does not organize its activity in a way that would ensure effective judicial protection of the rights and freedoms of the victim’s legal successor. Moreover, there is no procedural norm envisaging any procedure for an RA judge to apply to the Russian military base commander regarding any issue of conducting litigation.  

 

Summing up the events that occurred during the preliminary investigation of this criminal case, when the case was sent to Court with indictment, we record: 

 

  1. The fact, that Andrey Razgildeyev, charged with the death of RA citizen Julieta Ghukasyan, serves his arrest in the 102nd Russian military base, grossly violates legal norms of the “Agreement between the Russian Federation and the Republic of Armenia on jurisdiction and mutual legal assistance in cases related to the presence of Russian military base on the territory of the Republic of Armenia” signed between the Republic of Armenia and the Russian Federation on 29.08.1997, as well as the rights and legal interests of the victim’s legal successor;
  2. By not taking measures in order to transfer A. Razgildeyev to the RA penitentiary institution, all the competent bodies of the Republic of Armenia, namely, the Court, the Prosecutor’s Office and the Supreme Judicial Council, manifest inaction, the fruits of which we still reap today, as court sessions are not conducted for this very reason;
  3. Taking the person who committed a grave crime against an RA citizen under its protection and supervision and not bringing A. Razgildeyev before the Court, the 102nd Russian military base, in the face of its commander and the RF Ministry of Defense, operates out of the requirements of the RA Constitution and the Republic of Armenia as a sovereign state, grossly violates the requirements of the norms of Armenian-Russian agreements and impedes the administration of justice in the RA territory by purposely not complying with the lawful requirement of the Court to bring A. Razgildeyev before the Court; 
  4. So far, except sending the criminal case to the Court with indictment, the RA Prosecutor’s Office, which is the party supporting the charge in the Court, has not taken any step to bring before the Court the person who has committed a grave crime against the RA citizen. And the RA Prosecutor’s Office silently watches how the rights and legal interests of the RA citizen and the latter’s legal successor are being violated,
  5. The Court examining the criminal case does not ensure effective judicial protection of the rights and freedoms of the victim’s legal successor;
  6. RA state competent bodies manifest inaction in regard to eliminating the obstacles to the administration of justice in the RA territory and RA court instance. 

 

Not only the authorities of the Russian Federation, in the face of the RF Ministry of Defense, but also the guarantors of the Constitution of the Republic of Armenia, in the face of the RA authorities, are directly responsible for all of the above-mentioned issues. 

 

Based on the presented analysis, we demand from the RA Government, RA National Assembly and all of their factions, and the RA President to fulfill their obligations and use their powers in order to eliminate the factors hindering the implementation of justice, and to ensure the administration of justice and the protection of the RA citizen’s rights from harassments by the Russian military base commander. 

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