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No Grounds to Release Kocharyan: Prosecutor’s Office 

The Prosecutor General’s office reports that there are no grounds for terminating Armenia’s second President Robert Kocharyan’s criminal prosecution by force of the September 4 ruling of the Constitutional Court of Armenia.

A commentary disseminated by the Public Relations department of the Prosecutor General’s office states that “interpretation has been given to the ruling of the Constitutional Court based on consideration of the ruling’s separate clauses and therefore the interpretation does not derive from the meaning of the ruling.”

As already noted by the Constitutional Court, functional immunity does not appear to be a circumstance excluding criminal prosecution against the person, as reads Article 35 of RA Law on Criminal Prosecution Code. Therefore, in all those cases, when it will become clear that the criminal prosecution is incompatible with the functional immunity of the person, the body in charge of prosecution will be objectively deprived of the legal opportunity to make a lawful decision not to prosecute the person on these grounds or to terminate already brought criminal prosecution and not to use detention due to the lack of prosecution’s procedural basis. To put it simply, The Constitutional Court found Article 35 of the Criminal Prosecution Code problematic inasmuch, as it does not contain a ground for terminating a criminal prosecution in the event when it becomes clear that the person was in their capacity that enjoys functional immunity and this immunity has not been cleared.”

Reinstating, the above-stated is exclusively related to those cases when a president out of office is charged with acts arising from their official status, however we wish to emphasize that Armenia’s former President Robert Kocharyan is not charged with acts arising from his status. This circumstance was evaluated by the investigator carrying out the prosecution, as well as the prosecutor and the court as dictated by their powers.

The said charges brought against Robert Kocharyan satisfied the additional and preliminary obligatory requirement of lawfulness. The charge is not related to his functional immunity, in other words, the acts incriminated to him cannot be considered as arising from his status.”

Earlier, the Constitutional Court published the concluding remarks on the Robert Kocharyan’s appeal, by which it recognized Article 35 of the Criminal Prosecution Code in violation of the Constitution and therefore – null, while Article 135 was stated to be in compliance with the Constitution. The former article is related to circumstances excluding criminal prosecution or criminal proceedings, while the latter is related to grounds satisfying application of a means of restraint.