“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 4^th 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