Examining the constitutionality of Article 300.1 of the Criminal Code is legitimate

Former military prosecutor Gagik Jhangiryan stated in an interview with the Public Television on July 14 that the Constitutional Court should not examine the constitutionality of Article 300.1 of the Criminal Code accusing the second president Robert Kocharyan of overthrowing the constitutional order.

The former military prosecutor insisted that the Constitutional Court examines this case on its own initiative because there is no applicant party. “The applicant has lost in the Court of Appeal, and the court has returned it to the Court of First Instance” Jhangiryan said.

It should be reminded that Judge David Grigoryan, the judge of the Yerevan Court of First Instance, suspended the proceedings of Robert Kocharyan’s and others’ criminal case on May 20 and sent it to the Constitutional Court. Grigoryan asked the Supreme Court to determine the constitutionality of the article on overthrowing the constitutional order.

On June 25, the Court of Appeal overturned the decision of Davit Grigoryan to appeal to the Constitutional Court and to suspend the proceedings and sent the relevant criminal case to the same court for a new trial.

However, on July 8, the Constitutional Court, in accordance with the procedural decision, partially admitted Davit Grigoryan’s application on conformity of Article 300.1 of the Criminal Code with the Constitution. The trial is scheduled for August 20.

According to Jhangiryan, the Constitutional Court did not have the right to accept this application.

Indeed, according to the Law on the Constitutional Court (Article 22), the Constitutional Court starts examination of the case when there is a relevant application. And although David Grigoryan’s appeal to the Constitutional Court on May 20 was reversed by the Court of Appeal, there is no provision in the Law on the Constitutional Court that prohibits the Supreme Court from examining the application which is an annulled judicial act.

Article 29 of the Law on the Constitutional Court stipulates the grounds for the Constitutional Court to adopt a procedural decision on a complete or partial rejection of the case. For example, if the issues raised in the claim are not subject to the Constitutional Court, or the applicant does not have the right to apply to the Constitutional Court with the issue or when the Constitutional Court has a decision on the issue, and so on.

The law also stipulates the grounds on which the applicant may withdraw the application submitted to the Constitutional Court before the start of the case trial (Article 30). However, David Grigoryan did not withdraw his claim.

Besides, we should not forget that there is still a right to appeal the judicial act and Robert Kocharyan’s defense team can and has the right to appeal the Appeal Court’s judicial act at the Court of Cassation (RA Code of Criminal Procedures, Article 404).

Thus, the decision of the Constitutional Court to take into proceedings the decision reversed by the Court of Appeal is not illegal since the application was not withdrawn by the judge of the Court of Appeal.