Civil Society Institute

Freedom Justice Peace

Hot Line +374 55 080 111

Letter of CSI: The falsifications of the pre-trial investigation should not remain unaddressed

Letter of CSI: The falsifications of the pre-trial investigation should not remain unaddressed.

“Civil Society Institute” NGO sent a letter to the Armenian Prosecutor General Gevorg Kostanyan drawing his attention to contradictions and falsifications of the pre-trial investigation in the criminal case against Aram Moughalyan, Robert Piloyan, Arthur Qlyan and Gagik Arakelyan who are charged with hooliganism and an attempt of setting a fire on a haystack.

 In the letter is stated that Civil Society Institute and Human Rights in Armenia website (www.hra.am) will follow the development of this criminal case and will observe that the arbitrary behavior of the preliminary investigation be not left without consequences.

 Below please see the letter (extracts).

 “Dear Mr. Kostanyan,

 With this letter we wish to draw your attention to several circumstances of the criminal case against Aram Moughalyan, who holds a Master degree of the Cambridge University, and his friends, Robert Piloyan, Artur Qlyan and GagikArakelyan (Court case N ԱՐԴ/0114/01/13), which are in the focus of our organization’s attention throughout the last months.

 The four young men were charged with hooliganism and an attempt to destroy property of high value (a haystack) belonging to another person. It was reported that allegedly at night hours at the outskirts of Norapat village they had set fire on unusable hay, which resulted in damaging of hair of a dog and smoke-spoiling of 30 packs of hay, causing damage of 36.000AMD. It is noteworthy that the villager and his family members, to whom the haystack belonged, have stated for several months, that no damage was caused to them and that they did not have any claims.

 1. We believe that crime classification in this criminal case is absurd and not grounded

 The charge in relation to setting on fire the unusable hay scattered on the ground lacks necessary elements for corpus delicti to classify it as an act of hooliganism, i.e. presence of the public is required. The Armenian Court of Cassation in its precedent decision of 30.03.2012 ԱՎԴ/0014/01/11 listed a number of elements, the presence of which is required to classify an act as hooliganism, and one of them is the presence of the members of the public. The alleged attempt of setting a fire was committed late at night and there was nobody around, thus the action cannot be classified as an act of hooliganism.

 As regards the attempt of destroying property belonging to another person it is based on the mere assumption that the young men travelled to Norapat village with the aim to set on fire the haystack, belonging to Mr. Khudoyan, with the estimated cost of 1.440.000 AMD, and only because the haystack had been removed, they were not able to carry out “their criminal intention” and instead  they “poured the gasoline, which they had brought with them, at the former place of the haystack and set a fire on it”. In the indictment, the same haystack is estimated once as of 1.440.000 AMD and in the other place as of 1.800.000 AMD.

 The action cannot be classified as an attempt to destroy property of high value, because in order to be considered an attempt of a crime, it should be aimed at a real, existing object, but at the time of the alleged attempt, the haystack did not exist at the place of a fire set.

 2. Use of detention as a preventive measure is not grounded

 On 30 March and onwards the young men were called to the police for several times to testify and every time they reported to the police at their good will. On 17 April, after the regular interrogation, they were unexpectedly arrested, charged with ‘an attempt to destroy a property of high value’ and detained. Afterwards, the charges have been changed and a charge of committing hooliganism was added, to lay a ground for a decision on detention of Moughalyan and his two friends.

 Neither pre-trial investigation bodies nor the court had any reason to assume that the young men would impede the investigation, commit a crime, go into hiding or make illegally influence on persons participating in the criminal case. Notwithstanding these circumstances the court grounded its decision on detention referring to the possibility that the young men could go into hiding. Nevertheless, it is not enough to refer to a ground stipulated in Article 135 of the Criminal Procedure Code of Armenia when justifying detention. The decision should be based on sound assumptions based on the factual circumstances of the case (decision of the Court of Cassation on criminal case ԱՎԴ/0022/06/08).

 According to lawyer Vahe Gabrielyan, at the Court of Appeals while reviewing the appellate motion of the defense requesting to reconsider arrest as preventive measure, prosecutor Koryun Piloyan expressed an opinion that Aram Moughalyan would not go into hiding, because he has commitments towards the state, which had paid his tuition fees at the Cambridge University. However, he also added that he believed that Moughalyan should remain detained. This fact can be verified by examination of the audio record taken at the court session.

 According to the lawyer, the prosecutor stated the same at the Court of First Instance when reviewing the motion of the defense on replacing arrest with releasing the accused on bail. The latter stated that Moughalyan would not and could not go into hiding, but added that he should stay under arrest.

 It is obvious that ungrounded and unjustified application of arrest as preventive measure creates additional problems for the state. First, the principle of balance between the right of a person to freedom and personal security and the public interest is violated. Secondly, human and material resources spent during the process do not serve the purposes of justice. Detention of three persons for over 5 months on the cost of the state budget is not justified and creates additional problems for the already overcrowded “Noubarashen: penitentiary institution.

 3. A number of gross procedural violations were committed during investigation of the case.

 •According to lawyer Vahe Gabrielyan, on 30 March, at about 8a.m. Aram Moughalyan was summoned to the Armavir Regional Police Department and kept there for 16 hours. He was not provided with any legal status, and was de facto deprived of liberty for this time.

 •The case was sent to the court and the decision on arrest was made after expiration of 72 hours envisaged by the law.

 •One hour prior to sending the case files to the court, the charges had been changed, and a charge of hooliganism had been added. The defense lawyers learnt of that only at the court session, and were provided with no time to study the case files and prepare for appropriate defense.

 •According to lawyer Mkrtich  Davtyan, on 17 April, in his office investigator Ashot Martirosyan beat Robert Piloyan (hitting him over different parts of his body, pressed with a tooth stick against the veins on his arm, hit his head against the table and other), demanding that the latter confess in organizing the crime and committing it together with his friends.

 •On 22 April, when Piloyan was transferred to “Noubarashen” penitentiary institution and underwent examination, his bodily injuries were registered. Upon this fact, a forensic examination was assigned; the materials were referred to the Special Investigative Service (SIS). However, SIS decided not to institute a criminal case justifying the decision as follows: the injuries had been caused by the defendant himself. According to the lawyer, Piloyan did not challenge the decision, because he was afraid to do so. Piloyan told his lawyer that investigator Ashot Martirosyan had threatened him by promising that in case Piloyan tells anybody about the beating, Martirosyan would order to hang him and would say that it was an act of suicide.

 •The continuation of the investigation after 13 May was unlawful. The two-month period of the criminal case investigation started on 13 March and expired on 13 May. It was not prolonged in time. The decision on extension of the investigation was made almost one month later, on 7 June, and approved by prosecutor Andranik Dolinyan on 11 June. After the expiration of the deadline for conducting investigation and non-extension of the period, the detention of the young men was unlawful.

 •After expiration of the investigation’s two-month period, on 5 June, when there was no decision on extension, unlawful motion was submitted to the court to request extension of detention which was approved by Judge A. Adamyan of the Court of First Instance of Armavir marz.

 •When the indictment was submitted to the court on 01.08.2013, it appeared that in between the pages 143 and 144 of the case’s 4th volume case files, additional documents were inserted by the investigator and numbered as 143a, 143b, 143c, 143d, 143e, 143f, 143g, 143i, 143.1, 143.2, which is an official fraud.

 •No experiment has been carried out to verify whether the fire set by gasoline could damage only 30 packs of hay during the indicated time period.

 •The car which is considered as material evidence in the case was not preserved in accordance with the law.

 •It is also unclear, why for several months the victim has stated that he did not suffer any damage caused as a result of the fire and had no claims but in June he gave additional testimony, changing his previous one and declaring about smoke-spoiling of 30 packs of hay. The investigator did not make any attempt to clarify the contradictions between the testimonies.

 This is not a complete list of the contradictions and violations in the  criminal case.

 We submit this letter with expectation that you as the head of the body implementing oversight over lawfulness of preliminary investigation would order to take measures to identify and respond to the above-mentioned violations and shortcomings.”

 

 

Civil Society Institute 

About author

Mariam's picture

Mariam Sargsyan  | Programs Assistant & Hotline Coordinator

Ms Sargsyan joined CSI in May 2013. She is involved in the monitoring of penitentiary institutions and rehabilitation centers of juvenile offenders across Armenia, and coordinates the CSI's hotline providing free legal advice. Ms Sargsyan  is a member of the Expert Committee attached to the Armenian Ombudsman for issues related to violation of delinquents' rights, including torture and ill-treatment.