The “case” against Robert Kotcharyan : a vertiginous legal vacuum

Haytoug Chamlian,

Lawyer

From 1998 to 2008, Robert Kotcharyan was the President of the Republic of Armenia.

At the presidential election of February 19, 2008, Serge Sarkissyan obtained 52.8% of the votes, and Levon Der-Bedrosyan, 21.50%.

Levon Der-Bedrosian rejected those electoral results, and organized mass protests in the streets of Yerevan, which lasted for 10 days. Another leader of that movement was Nigol Pashinyan.

Since the transfer of power to the newly elected president had not yet taken place, Robert Kotcharyan was the acting President during said street protests.

In the night from March 01 to March 02, 2008, particularly violent clashes took place between the protestors and the national police. The latter was eventually backed by some military forces. Ten persons lost their lives, two of them police officers.

Levon Der-Bedrosyan was not physically present during the last stage of the events. He was never prosecuted for his role in the aforesaid events.

Nigol Pashinyan, who was leading the protestors up until and during their violent altercation with the police and some military forces, went into hiding. He later surrendered. Following a trial, the Court found him guilty of the crime of “organizing mass disorders”, and sentenced him to seven years in prison. The Court of Appeals of Armenia, then the Court of Cassation, confirmed said Judgment. Pashinyan was released from prison after serving half of his sentence, in accordance with an amnesty declared by the government of Serge Sarkissyan.

On May 08, 2018, through mass protests in the streets, Nigol Pashinyan became Prime Minister of Armenia.

On June 11, 2018, he changed the head of Special Investigation Service of the Republic of Armenia.

On July 27, 2018, Robert Kotcharyan was arrested by said Special Investigative Service (SIS) of Armenia, and put in jail by decision of a first instance tribunal, in pre-trial imprisonment.

On August 13, 2018, Kotcharyan was freed from pre-trial captivity, by a higher Court ruling, while remaining accused of the charges he was arrested for.

On December 7, 2018, two days before the legislative elections, Kotcharyan was put in jail again, before any trial on the merit of his case.

At the legislative elections of December 9, 2018, Nigol Pashinyan’s party obtained 70,4% of the seats of the Nationaly Assembly, which thus elected Nigol Pashinyan as the Prime Minister of Armenia. Under the current version of the Constitution, that is the highest and most powerful position in the Executive Branch of the State, while the Presidency has become a mainly honorific title.

Not counting the above-mentioned previous episode of pre-trial imprisonment, Robert Kotcharyan is in prison, since December 07, without any trial on the merit of the accusations that are invoked against him. When such a trial starts, it could last for years. Even that starting date was only announced recently, close to 5 months after the second time the accused was jailed.

* * * * *

The initial and primary accusation, upon which Robert Kotcharyan was put in prison without any trial on the merit of his case, is for “overthrowing the constitutional order”, during the final stage of his Presidency.

The authorities are yet to explain what that means, in this case.

Several legal experts, from different countries, have issued their professional affirmation that they cannot even understand what that would mean, in this instance.

So, in order to be able to continue this presentation, we will have to imagine what the Prosecution could or would finally start explaining, in a trial, with regard to this main charge upon which they have been holding the accused in prison for more than 5 months.

The best explanation would be that, according to that charge, the presidential election of 2008 was a Coup d’État, organized and implemented by Robert Kotcharyan, when he was President of the Republic of Armenia, with the intention and purpose of making Serge Sarkissyan become President; while otherwise, it is Levon Der-Bedrosian who would have become President.

The following is a non-exhaustive presentation of some basic information and observations, regarding this possible explanation of the accusation in question, and the fact that the accused has already spent 5 months in jail, without trial.

* * * * *

.  On a purely hypothetical level, one can easily realize how extremely difficult it is to prove the factual veracity of such charges. Actually, on the basis of legal and judicial norms pertaining to proof and evidence, that is impossible.

In order for the accusation to become a judgement, the Prosecution has to prove not only that Robert Kotcharyan himself acted in a way to alter the outcome of said elections, but that also, without such actions on his part, Levon Der-Bedrosian would have been actually elected president.

These two elements have to be proven, not on the basis of probability, but at the closest possible degree of certainty. Beyond reasonable doubt.

Bearing notably in mind that Levon Der-Bedrosian obtained 21,50% of the votes at the election in question…

. The previous observation is related to the presumption of innocence of the accused, which applies and should be preserved up until a Court, after full Proof and Hearing on the merit of the case, renders a verdict.

This legal concept constitutes the well-known foundation of any modern and civilized system of Law and judicial Justice.

Here are some declarations made by Prime Minister Nikol Pashinyan; his publically made declarations, that is. In speeches, on a stage, with a microphone. (The following quotations, as such, are certainly accurate and easily verifiable; however, with regard to their contents, they are presented expressly without prejudice, since none of it, not one element of their contents, has ever been proven in any way in any Court of Law; the trial has not even begun, in that regard)   :

September 11, 2018 :

–  “ The state of emergency was declared on February 23, 2008, and Robert Kotcharyan has removed the military troops from the Armenian-Azeri line of contact, to bring them in order to occupy his own people.

 Who is that, if not a penal perpetrator of a crime ”

–  “Robert Kotcharyan and Serge Sarkissyan are responsible for an illegal occupation by violence of the power in Armenia”

September 15, 2018 :

“… the comment about Robert Kotcharyan’s release from jail… He is saying : he has immunity. What does immunity mean ? This means that it is possible to organize the murder of people, and say “I have immunity?” Where is such a thing written ? ”

The “comment about Robert Kotcharyan’s release from jail ”, that the Prime Minister is referring to, in his public declaration quoted above, is actually a judicial ruling. Established and issued by a Judge of the Court of Cassation of Armenia who, overruling the decision of the tribunal of first instance and the judgment of the Court of Appeals, ordered the release of Kotcharyan from his pre-trial imprisonment. Before he was jailed again.

So, when the head of the Executive Branch of the State is declaring so vehemently, to his political fans:  “ He is saying : he has immunity. What does immunity mean ? This means that it is possible to organize the murder of people, and say “I have immunity? Where is such a thing written ? ”,  that “He” refers to a Judge of the Court of Cassation of Armenia. The country’s highest body of criminal justice.

Somebody should have gently explained to the Prime Minister, since he wants to know, that what the Judge of the highest criminal Court of the country meant, by stating that the charges at hand against Robert Kotcharyan are ill-founded, considering the applicable legal and constitution notion of immunity, is this: during the post-electoral events of 2008, Robert Kotcharyan was making decisions and acting not as an individual, not as a citizen, but in his capacity of President of the country, within the fundamental powers, duties and responsibility attached to that function. And that accordingly, by virtue of the Constitution of Armenia, Kotcharyan is entitled to invoke immunity from prosecution, against the charges he is now facing.

It has to be noted that the accusation was not cancelled by the Court of Cassation, on the basis of said immunity. It is only the captivity, without any trial on the merit of the case, that was lifted. Because the trial on the merit of the case had not – and still has not – taken place yet. But unless something relevant can be actually and properly proven, beyond reasonable doubt, during such a trial, resulting in a Judgment on the merit of the case, the accusation, by itself, is not sufficient to lift a former President’s immunity, let alone justify his pre-trial imprisonment.

That same Judge of the Court of Cassation of Armenia has repeatedly declared that he stands firmly by his decision, on behalf of said Court, in this file. Even in the current political climate in Armenia, where pretty much anything goes, nobody has alleged any element of bias or suspicious partiality that could be attributed to this Judge. On the contrary, his integrity ranking within the legal community is very high – unusually so, for that country… -.

The Prosecution, despite that Judgment of the Court of Cassation, went back to the lower Courts, and Robert Kotcharyan was put in prison again. With an astonishing timing, what is more. Released by order of the Court on August 13, 2018, Kotcharyan was put back in prison almost 4 months later, on December 07. At a critical moment for the electoral campaign, namely, two days before the election date.

Most recently, the Constitutional Court of Armenia rendered a Judgment in favour of Robert Kotcharyan, in relation with the aforesaid ruling by the Court of Cassation. The accused has not been released yet, though.

.  The public declarations of Nigol Pashinyan, textually quoted above, constitute an obvious and gross violation of the fundamental legal principle of presumption of innocence, in the pending judicial case of Robert Kotcharyan.

And since those public declarations were never retracted by Nigol Pashinyan, those repeated violations of the presumption of innocence are ratified by the current Head of the Executive Branch of the State, who is also the leader of a massive majority in the Legislative Branch.

Consequently, with regard to a case which still has to be tried on its merit, these declarations constitute also a continuous means of pressure, if not intimidation, by the Executive and Legislative Branches of the State, on and against the Judicial Branch, in breach of the elementary understanding of the Rule of Law and the Separation of Powers.

.  Beyond the foregoing, there is also direct evidence of derogatory pressures on judges, manipulation of the Courts, in this specific case.

The recordings of telephone conversations were made public, and can still be easily listened to. They are between the head of Armenia’s National Security Service (NSS) and the head of the Special Investigative Service, the special body that is investigating the “March 01” events pertaining to the accusation at hand against Robert Kotcharyan.

At one point during those conversations, talking about Robert Kotcharyan, the head of the NSS, expressly and distinctly, says : “ The judge called me..  He is a little scared… His name is […],the judge, who gives judgment for the arrest… I told him to have courage… He said let me look through the justifications Mr. Vanetsyan, then call you and report. I told him to study the justifications then call me, and I added that I do not care whether he wanted it or not, he must render judgment for the arrest ”.

 The authenticity of the aforesaid telephone conversation recordings was not disputed. The head of the NSS has actually declared “ I want to confirm that it [the recording] is real, with our participation, and it is very strange that the conversation between the director of the National Security Service and head of the Special Investigation Service has been secretly recorded.”

The reaction of the authorities was rather to brutally raid some media outlets, who revealed them to the public.

The current Prime Minister did not fire any of the two high ranking officials between whom those disclosed conversations have taken place. At a very minimum, this establishes a ratification, a condoning, on his part, of the grossly derogatory behaviour that they are clearly admitting in said conversations.

(Since we are on this subject, we have to underline that, Kotcharian case or not, it is rather puzzling how the head of a “National Security” Service can keep his job, when his telephone conversation is recorded and published. Not really reassuring, for the national security of any country, let alone when it is in a state of war).

.   In their same above-stated telephone conversations, the head of Armenia’s National Security Service (NSS) and the head of the Special Investigative Service (SIS) also mention by name an Armenian lawyer, based in Great-Britain, saying that they will tell him to present an expert’s report to the Court, to serve as basis for the judgment they want the latter to render. This, in the context of “ the judge called me. He is a little scared. I told him to be bold… “whether you want it or not, you will arrest [Kotcharian]”  ”…

At the minimum, this segment of the conversation more than implies that the heads of the NSS and the SIS are absolutely sure and certain that what said lawyer will write, shall fully serve their purposes, shall make things much easier for them, with regard to the pressure they are exercising on the judge, to make him render the judgment that they want.

That lawyer represents Levon Der-Bedrossian, and the relatives of those who lost their lives (excluding the police officers), in relation with the “March 01” events pertaining to the accusation at hand against  Robert Kotcharyan.

Nigol Pashinyan’s faction made a hasty – and thus, failed – attempt to install that lawyer on the seat of a judge of the Constitutional Court of Armenia. At the moment these lines are being written, he is, again and for the second time, a candidate to that post; a step, which constitutes a blatant contravention of the Constitution, which explicitly stipulated that when a candidate to that function is rejected, a “new candidate” has to be proposed by the President. A “new candidate”.

In fact, after the candidacy of the lawyer in question was rejected by the National Assembly, in accordance with the Constitution, “a new candidate” was duly presented by the President. But he was rejected by the National Assembly, where the party of the Prime Minister disposes of a massive majority. After which, the aforesaid London lawyer of Armenian descent presented his candidacy, again. At the time this article is published, we still don’t know what the outcome of this situation will be.

In any event, this lawyer who is presenting his candidacy, one more time after being previously rejected, to the post of judge at the Constitutional Court of Armenia, by merely doing so, is himself violating, frontally, the Constitution of Armenia.

Only in Armenia…

.  On February 24, 2008, the Central Electoral Commission of Armenia (CEC), formally and officially, confirmed Serge Sargysan’s victory at the 2008 presidential election.

The accusation against Robert Kotcharyan means that the Central Electoral Commission of Armenia was an accomplice to the Coup d’État. That said body participated to a fraud, by validating the results of the February 2008 elections, making Serge Sargysan President of Armenia.

In December 2018, it is the same Central Electoral Commission of Armenia that confirmed the result of the legislative elections, thus attributing 70% of the seats at the National Assembly to the party of Nigol Pashinyan, which made the latter Prime Minister of Armenia…

It would have been a good idea, at least for the sake of appearances, to replace at least the chairman of that Central Electoral Commission, who was appointed to that job by… Serge Sarkissyan. However, not said chairman, nor any other member of the CEC has been importuned by the current regime.

.   The General Prosecutor of Armenia who is conducting the charges against Robert Kotcharyan pertaining to the “March 01” events, was appointed to that job during the regime of Serge Sarkissyan.

If Serge Sarkissyan had become (a false… ?) President, thanks to the Coup d’État of 2008, how come that official is still occupying that function ?

Moreover, that same person was Deputy Head of that same Office, when… Nigol Pashinyan himlsef was prosecuted, for his role in those same events, tried, convicted and put in prison.

.   On May 08, 2008 (a week after the deadly events of the night from March 01 to 02), the Constitutional Court of Armenia confirmed the validity of the results of the preceding presidential election.

The accusation against Robert Kotcharyan means that the Constitutional Court of Armenia was an accomplice to the Coup d’État. That said Court participated to a fraud, by validating the results of the February 2008 elections, making Serge Sargysan President of Armenia.

However, to this date, none of the Judges of said Constitutional Court has been bothered, let alone replaced.

In light of the foregoing, any finding by any Judge, agreeing with the accusation of Coup d’État against Robert Kotcharyan, would be in direct contradiction with the Judgment of the Constitutional Court of Armenia.

Moreover, since the Constitutional Court of Armenia will have its say with regard to the accusation of Coup d’Étatagainst Robert Kotcharyan, if that Court sides with the position of the current Prosecution, then, the Constitutional Court of Armenia would be contradicting directly the… Constitutional Court of Armenia.

Recently though, said Court has just rendered a judgment in favour of Kotcharian, in this matter, regarding his pre-trial captivity. But he still remains in jail.

.  With respect to the presidential election of 2008 in Armenia, no remark was ever uttered, by any other foreign state or any international body, dismissing, rejecting the actual validity of the results of said election.

None of the 193 sovereign states that are members of the United Nations has ever refuted the validity of the results of said election.

The European Union Commission has officially declared, with respect to the 2008 election at hand :  “ The European Union congratulates the Armenian people for the conduct of a competitive presidential election in Armenia.

 The European Union notes the statement of preliminary findings and conclusions of the International Election Observation Mission which concluded that the presidential election in Armenia, an important test for democracy in this country, was conducted mostly in line with OSCE and Council of Europe commitments and standards.

 The European Union welcomes the genuine efforts that were made to address the shortcomings in previous elections. ”

The United States Department of State has issued this official statement, regarding the same election : ” We congratulate the people of Armenia on the active and competitive presidential election of 19 February and note the preliminary assessment of the OSCE’s Office of Democratic Institutions and Human Rights (ODIHR) and Parliamentary Assembly that the election was “mostly in line with OSCE and Council of Europe commitments and standards for democratic elections. ”

The accusation against Robert Kotcharyan means that, among many other international and state entities, the EU Commission and the US Department of State were accomplices of the alleged Coup d’État. That they also participated to a fraud, by validating the results of the February 2008 presidential election in Armenia, making Serge Sargysan President of Armenia.

.  Actually, if the accusation of Coup d’État against Robert Kotcharyan becomes a legal reality, then, it would mean that from 2008 to 2018, that country and state did not have a legitimate President.

That everything that Serge Sarkisian has said, done, decided, declared, signed, in the capacity of President of Armenian, on behalf of the Armenian State, is null and void.

Said nullification would include the newest Constitution, by the way, since it was adopted under the regime of Serge Sarkissyan.

That would mean that Nigol Pashinyan is not the Prime Minister of Armenia. Considering  that the entire process which put him in that function was in accordance with the latest version of the Constitution.

. But the whole matter becomes even more vertiginous…

According to the current highest officials of Armenia, it is not only Serge Sarkissyan who was never President of Armenia, but also his predecessor.

Nigol Pashinyan himself has publically declared, as quoted previously, above,

“ Robert Kotcharyan and Serge Sarkissyan are responsible for an illegal occupation by violence of the power in Armenia ”…

Just a few days ago, on May 09, 2019, the current Vice-President of the National Assembly of Armenia, declared publically, textually, this : “ when talking about Robert Kotcharyan and Serge Sarkissyan, I exhort not to use the word president, because they have never been elected president ”.

Hence, the ultimate head of the Executive Branch and the Vice-President of the Legislative Branch of the Republic of Armenia are thus declaring to the world that, from 1998 to 2018, Armenia did not have any President. And therefore, everything that was said, done, decided, declared, signed, by anyone, during those 20 years, as President of Armenia, on behalf of the Armenian State, is null and void.

.   In any legal and judicial system which is minimally sound, coherent and just… normal, the accusation of “overthrowing the constitutional order” against Robert Kotcharyan would be considered not only ill-founded, but absurd.

The investigative bodies would never submit it to the government’s lawyers, but if they do so, the latter would not go to court with it. And if they do, it would not go beyond the earliest preliminary step, in a Court of Justice.

.   In what seems to be a desperate attempt to supply some substance to the file, some time later, the Prosecution added a second charge against Robert Kotcharyan, this one related to some bribery.

The only “evidence” aimed at supporting that secondary charge is limited to the single declaration of a single individual. Who subsequently recanted her initial statement. Explaining that she had given the alleged bribe to someone else, but she is, kind of, presuming that that other person should have given it to Robert Kotcharyan…

Robert Kotcharyan filed a lawsuit in defamation against the individual telling that story. At the day of the hearing, neither that individual nor her lawyer were present in Court. The hearing could have proceeded, since the defendant and her lawyer had declined to be present. But instead, the judge postponed the trial, by 5 months… A quite unusual delay, to say the least, in a case of that nature, and considering the enigma of the absence of both the defendant and her lawyer…

.  In fact, for 20 years, we have been hearing endless stories about the epic “pillage” of the country by Robert Kotcharyan. Up to now, though, more than a year after the political forces fiercely opposed to him, and who have been also spreading all those stories for all those years, became the government, we are still waiting for actual proof and evidence substantiating all that. Any of that.

Perhaps a little more than the story of a bribe, without any objective evidence, told by one individual who says that she gave something to someone, and that she assumes that the latter must have passed it on to Robert Kotcharyan, no ?… And who does not even show up in court, when she is faced with a lawsuit stating that she is lying.

We actually don’t even know, on the basis of any proof or evidence, what assets does Kotcharyan actually own. If that evidence is what the Yerevan taxi drivers vehemently disclose to you, then, the same luxurious hotel pretty much belongs to ten or twenty different persons, each one of them being its exclusive owner. Depending on who, at the moment of that bombshell revelation, holds some political power. It will not be long, before we start hearing the same stories about the current political leaders of the country.

But it is not only the taxi drivers. At one point, the head of the National Security Service made some arbitrary public declarations, about some financial matters, targeting one of  Kotcharyan’s sons. The latter filed a lawsuit, asking the Court to declare that the head of NSS has violated his presumption of innocence. And Kotcharyan’s son won that lawsuit.

* * * * *

In light of the above-stated observations regarding the case of former President Robert Kotcharian, the reader will not be surprised to be informed that the latest phase of undue procedural delays were caused by the refusal of several judges to preside over it.

Some of those judges were avoiding to be appointed to that function, using various tactics. One judge even recused himself, after being appointed, without explaining his decision.

Actually, even before the case finally reached the stage of trial on its merit, at least two judges had refused to deal with it, on the issue of the pre-trial imprisonment. They were both submitted to disciplinary action, and sanctioned, for that refusal.

When even judges are running away, not only from a trial, but even pre-trial, preliminary petitions, there is obviously something wrong with the case. Such a behaviour is quite unusual, anomalous, from any legal point of view. Even in a country like Armenia…

* * * * *

There are numerous possible, quite plausible explanations pertaining to the persecution inflicted upon Robert Kotcharyan in Armenia, during the last 10 months.

None of them has anything to do with the Law.

Every one of them constitutes a blatant violation of the Rule of Law. To an unprecedented extent, ever since that country declared its independence from the USSR, and started the laborious process of hopefully becoming an actual statehood.

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This article is certainly not a full and comprehensive analysis of the accusations against Robert Kotcharyan. His very competent team of lawyers is taking care of that, brilliantly. It is merely a minimal sampling of some aspects of the case at hand, which all demonstrate how flawed and ill-founded it is, on the legal and constitutional levels.

Having said this, it has to be underlined that this is not a unilateral presentation of the case. Up to this date, there is a total absence of any other opposite, legal argument. If there were any, the undersigned would have gladly exposed them, if only to be able to counter them properly. But there are none. With regard to the  contents, the merit of the accusations in question, the current authorities have just not presented anything substantial or significant, yet.

* * * * *

The undersigned lawyer, following his studies of Law in Canada, has been practising his profession in this country, for a period of time that is longer than the total duration of the entire existence of the current Republic of Armenia.

The only significant revelation in the Robert Kotcharyan case is that the Armenian “statehood”, after more than 27 years, is still in its very early, embryonic stage. And that the Judicial Branch is its weakest, its most flawed, vulnerable and unreliable component.

A disturbingly large number of individuals, bearing the title of judges, are rendering documents called judgments, which happen to be in strict accordance with the will, wishes and desire of the political players in charge of the Executive Branch, on the given date. Even when, by such a behaviour, they are directly and totally contradicting themselves, or even higher Courts, in fact and in Law.

After 27+ years of failed efforts and illusions – at this juncture, more than ever, alas – , perhaps Armenia should just stop pretending to be a country founded on the principle of the Rule of Law, a state founded on the Separation of Powers; until it gets its act together, one day, hopefully. This reality check will make matters much easier for everybody who is still interested in the faith of that country and its indigenous population. Easier to understand, and easier to deal with.

Haytoug Chamlian, Lawyer

Canada, May 12, 2019