February 14, 2007

Justice by Instruction:
Raffi Hovannisian’s Legal Request Refused Again

Yerevan—On February 13, Judge Vazgen Lalayan of the Central and Nork-Marash Court of First Instance heard, humored, and, needless to say, denied Heritage Party founder Raffi K. Hovannisian’s formal complaint. The complaint was submitted by attorney Zaruhi Postanjian against prosecutor Karapet Karapetyan of the Department for the Protection of State Interests of the Armenian Prosecutor General’s office for his refusal, dated November 15, 2006, to institute a criminal case as law and evidence required.

In response to a judicial injunction, dated April 14, 2006, against the Paronian State Theater—the property owner—for restricting access to Raffi Hovannisian’s legally leased premises, marshals from the Service for Mandatory Execution of Judicial Acts (SMEJA) of the Ministry of Justice had reopened on May 29 the Heritage Party headquarters which, on March 4, 2006, the theatre unlawfully had locked down.

During the subsequent inspection of the main office, which took place in the company of SMEJA officials, Heritage staff had noticed that, among other anomalies, one television set and two computers were turned on and working. The official laboratory examination that was later ordered by the police department had concluded that in the late hours of March 8, exactly four days after party headquarters had been forcibly shut down without a legal warrant, unidentified individuals had entered in clandestine fashion the already-locked and sealed premises and, after circumventing the main computer’s password, gained illegal entry into the party’s database which contains constitutionally-protected information regarding the party, its membership rolls, and its activities. Having examined the computer, experts from the National Bureau of Investigation confirmed in their report to the police department that the computer had been put in operational mode for 22-24 minutes, hooked up to an external monitor, and connected to a USB-type memory-bearing flashcard of an unknown brand. In clearer terms, Heritage’s party information had been stolen.

Though this evidence sufficed for—even mandated—the launch of criminal proceedings, according to Postanjian, both the Yerevan police department and the prosecutor’s office of the Central and Nork-Marash communities denied her legal request for a full investigation into the case of the computer bandits.

In turn, on October 9, 2006, Raffi Hovannisian and the Heritage Party sent a complaint to the Republic’s prosecutor general Aghvan Hovsepyan, appealing the decision of the Yerevan prosecutor’s office not to file criminal charges in the case of the illegal forcible closure of and break-in to their offices and computer system in March. Ten days later, on October 19, a formal letter from Hovsepyan’s deputy confirmed that all decisions of the Central and Nork-Marash prosecutor’s office had now been revoked, and that an additional inquiry had been launched by his office. It seemed justice would finally be served. But that was not to be: on November 15, prosecutor Karapet Karapetyan of the Department for the Protection of State Interests refused to institute a criminal case.

It was this refusal which Raffi Hovannisian appealed yesterday at the Central and Nork-Marash Court of First Instance. But it was apparent from the beginning that Judge Lalayan, who did not hide his aggressive demeanor, would be neither sympathetic nor fair. Forbidding any formal objections, he first endeavored to prove that the letter of authorization introduced to the Court did not give Zaruhi Postanjian the right to represent Hovannisian. After the latter’s personal intervention and verbal assurances, however, the situation was resolved. Yet the judge, who seemed to favor unproductive arguments, now targeted media representatives and specifically the cameraman of Photolur News Agency. Though neither petitioner nor respondent raised objections, the judge demanded that video recording and photography come to an end. The judge’s constant interruptions and interjections appeared to bespeak his inner uneasiness and inhibition. All indicators made it clear that the verdict was predetermined, and the hope for fair trial irredeemable.

Even so, Raffi Hovannisian opened with a brief summary of the circumstances surrounding the case and, subsequently, his attorney Zaruhi Postanjian introduced the complementary facts and legal standards. She insisted on the manifest presence of corpus delicti and once again pointed to the evidentiary material supporting the legal claim. Postanjian contended that a series of crimes had been committed which, pursuant to several articles in the Armenian Criminal Code, are subject to criminal prosecution. Prosecutor Karapetyan objected to the complaint, asserting that the prosecutor general’s office had now prepared new documents and additional examinations and investigations had been conducted. In line with these findings, he maintained, when Heritage’s computer system was breached—a fact he did not refute—its protection system was not tampered with and no information was actually copied. Specifically since the computer was not physically damaged, Karapetyan asserted, there are no grounds to institute a criminal case.

It is noteworthy that the additional laboratory examination, far from yielding information that complemented the findings of the first (as the respondent maintained), in fact contradicted them. The second examination, which was performed by one of the same investigators, Tigran Brigalyan, who took charge of the first, alleged that it was impossible to insist categorically that the entry into the computer had taken place specifically on March 9, 2006, at 1:01am. “The time and other data can be altered by the user,” Karapetyan “informed” those present, repeating time and again that the computer had not contained any special programs, nor was there proof of damage. He maintained that corpus delicti was absent .

Zaruhi Postanjian then took the floor and asked for a 15-minute recess in order to get acquainted with the conclusions of the second laboratory examination that had been ordered by the prosecutor general’s office, but never forwarded to Raffi Hovannisian. The Court granted the motion and ordered a brief recess.

Upon resumption of the hearing, Zaruhi Postanjian underscored that there were substantial discrepancies between the conclusions of the two laboratory examinations. According to Postanjian, this proved that the second examination had been conducted for the purpose of disproving the conclusions of the first, which had inconveniently confirmed the accuracy of the time and date displayed on the computer. “Considering the marked inconsistencies between the conclusions of the two examinations, I move that the Court invite those who have conducted these examinations in order to clarify the matters dealing with those substantive inconsistencies and other matters which are of interest to us,” Postanjian said. But the Court denied her request, arguing that the law does not sanction their summons, even if the intention was to examine additional evidence. The Court likewise denied Postanjian’s petition to postpone the hearing until the next day.

Prior to the final ruling by the Court, Raffi Hovannisian delivered closing remarks and once again invited the Court’s attention to the fact that Central and Nork-Marash Court Judge Edward Avetisyan’s judgment of June 26, 2006 had found that the closure of his offices on March 4, 2006 had been illegal; almost one year has passed since Heritage was first denied access to its legally rented office space. What is more, it continues to be denied its property rights and the chance to liberate its belongings from unlawful confinement. In Hovannisian’s words, such injustices, which have paralyzed the party’s normal operations, have taken on a new meaning in the lead-up to the upcoming parliamentary elections. “I am hopeful that one day soon the Armenian institutions charged with the carriage of justice will be guided by the letter and spirit of the law and not by political directives or other illicit considerations,” Hovannisian declared, demanding the restoration of his constitutional rights as an Armenian citizen.

The Court proceeded summarily to deny Raffi Hovannisian’s claim. “The thing speaks for itself,” commented Zaruhi Postanjian.