0 8000 12 11

On May 7, 2015, the Court of General Jurisdiction of Kentron and Nork-Marash administrative districts of Yerevan, RA, presided by Judge M. Makyan, considered the complaint by Artur Sakunts, representative of Arman Antonyan’s successor Susanna Antonyan. Note that back on April 5, 2010, Arman Antonyan died of viral hepatitis B in Nork infectious diseases hospital in Yerevan city. On June 23, 2010, a criminal case was initiated under Article 130(2) of the RA Criminal Code, and the proceedings were later discontinued. The decree on discontinuing the criminal proceedings was appealed under the procedure prescribed by law, and as a result, based on the ruling of the RA Court of Cassation, the Court of General Jurisdiction of Kentron and Nork-Marash administrative districts of Yerevan, RA obliged the agency responsible for the preliminary investigation to eliminate the violation of the rights of the aggrieved party. In the course of the additional preliminary investigation of the criminal case, a committee forensic expert re-examination was scheduled; however, the successor to the victim and her representative A. Sakunts received no copy of the expert opinion. L. Tatoyan, investigator at the Kentron and Nork-Marash administrative districts Investigation Division under the Yerevan city Investigation Department, RA Investigation Committee, responsible for the proceedings, stated that no copy of the expert opinion could be provided before the investigation was completed on the pretext that it was considered among the classified materials of the preliminary investigation. A. Sakunts, representative of the successor to the victim, Susanna Antonyan, filed an application to K. Batikyan, prosecutor at the Yerevan city Prosecutor’s Office to help him obtain a copy of the expert opinion above. However, K. Batikyan also rejected to provide the copy of the expert opinion by finding that it was impossible to provide it at that stage of the preliminary investigation. Thus, A. Sakunts, representative of the victim’s successor, appealed to a court of general jurisdicaiton. On May 7, 2015, the trial on the appeal was attended by the HCA Vanadzor lawyer Ani Chatinyan, representative of S. Antonyan, and Arsen Geghamyan, investigator responsible for the preliminary investigation of Arman Antonyan’s death case. K. Batikyan, prosecutor of the Yerevan city Prosecutor’s Office did not attend the court hearing. The court found that the trial would proceed in his absence and mentioned that in case they would ever need to summon him, the hearing would be postponed. A. Chatinyan, representative of the complainant, presented the supporting arguments of the appeal. She mentioned that the RA Criminal Procedure Code had no provision on considering the expert opinion drafted within a criminal preliminary examination as a preliminary investigation confidential material or prohibiting the aggrieved party from getting a copy of such an opinion. The RA Criminal Procedure Code allows the aggrieved party to get familiar with the expert opinions and make an unlimited number of entries and notes thereof, and a way to get familiar with the entire expert opinion is the access to its copy. Also, the  criminal proceedings aims not only  to reveal the crime and hold the persons guilty liable but also to ensure the protection of the rights and legal interests of the victims of crime, and the agency engaged in the proceedings shall be responsible for the effective exercise of the victims’ rights. In her appeal, A. Chatinyan presented some arguments on the account that the failure to provide S. Antonyan with a copy of the expert examination resulted in a discriminatory approach towards her and breach of the competition principle.  Particularly, A. Chatinyan referred to several other criminal cases where the agency responsible for the proceedings duly made the aggrieved party familiar with the expert opinion and provided them with a copy of such opinion. A. Chatinyan found that this case revealed a breach of the so-called equality of arms principle by placing the aggrieved party in an unequal situation, whereas competitiveness ranges among the essential components of the right to a fair trial as any violation of the principle of competition leads to the breach of the right to a fair trial. Then the representative of the victim’s successor stated that at the very stage, the agency responsible for the proceedings had already violated the aggrieved party’s right to a fair trial. In the light of these arguments, S. Antonyan’s representative requested to reduce the procedural irregularities and to oblige the agency responsible for the proceedings to provide a copy of the expert opinion above. A. Geghamyan responsible for the proceedings noted that the preliminary investigation during familiarizing the parties with the expert opinion was conducted by another investigator, and still he was sure that the aggrieved party had unlimited time to familiarize herself with the expert opinion and therefore found that there was no breach of the competition principle in these terms. A. Geghamyan also mentioned that there was no unequivocal opinion on whether an expert opinion was classified information or not. At the same time he said that investigators might practically take different approaches and provide a copy of such an opinion on a case-by-case basis. However, considering the nature of the case and the fact that S. Antonyan had lost her son, the agency responsible for the proceedings was ready to provide her with a copy of the commission forensic expert re-examination. A. Chatinyan, representative of S. Antonyan, did not object to receiving a copy of the expert opinion in the court of law and immediately received such a copy during the court hearing. Thus, the Court deemed the consideration of the appeal to be completed and left to the retiring room. By its ruling, the Court rejected the complaint, which was quite anticipated given the fulfillment of the requirement mentioned in the complaint. While the initiative by the agency responsible for the preliminary investigation to restore the violated rights of the aggrieved party should be highlighted, it should be still noted that in case of providing the expert opinion classified under the preliminary investigation, the agency above would have immediately violated the requirements under the RA Code of Criminal Procedure, which proves that the previous denying access to the expert opinion in question was quite baseless. Nevertheless, it should be noted that the provision of a copy of any expert opinion related to the rights and interests of the aggrieved party during the preliminary investigation at the discretion of the investigator responsible for such investigation is an apparent violation of the victim’s rights.