On 12 September, the Anti-Corruption Court held the preliminary hearings in the case of the request for confiscation of property of illicit origin from the former Minister of Defense, Member of National Assembly Seyran Ohanyan, his wife Ruzanna Khachatryan, Anna Badalyan, Jacques-Pierre Fovoy, Benyamin Ghalechyan, Marine Nerseyan,  as well as the involved third parties “Araratbank” OJSC and Karine Margaryan.

According to Iravaban.net, at the beginning of the session, the presiding judge Karapet Badalyan announced that they have reached the trial stage of the distribution of the burden of proof. Gevorg Kocharyan, Senior Prosecutor of the Department for Confiscation of Property of Illicit Origin of the Prosecutor General’s Office, informed the participants of the trial that an appeal was submitted to the Civil Court of Appeals on behalf of the Prosecutor’s Office.

As we reported earlier, the plaintiff involved Ruzanna Khachatryan’s sister’s daughter, Anna Badalyan, as a defendant in the case and filed a demand for confiscation of property. Before the start of the lawsuits, Anna Badalyan alienated the immovable properties to Karine Margaryan, who was involved in the case as a third party. During that time, the Prosecutor General’s Office imposed a ban on the properties and it was not possible to make any transactions in the Cadastre Committee. The Prosecutor assumes that Anna Badalyan and Karine Margaryan initiated a court dispute in an artificial way in order to realize the intention of buying and selling, so that they could have a court act, through which Karine Margaryan would be able to register these real estates in her name. The Prosecutor’s Office considers Seyran Ohanyan to be the beneficial owner of the mentioned real estates.

“We filed an appeal at the end of August. We still do not have a decision on whether to proceed with the case. I emphasize the situation, because this is of essential importance from the point of view of clarifying our demand. We are appealing the court act of the first instance, by virtue of which Karine Margaryan became the owner of 2 properties in the building on Nalbandyan Street. According to our demand, these properties are subject to confiscation,” the Prosecutor noted, adding that in case of annulment of the verdict, these properties will again be registered in Anna Badalyan’s name.

Karapet Badalyan clarified whether the plaintiff wants to file a motion to suspend the case, to which Gevorg Kocharyan gave a negative answer. “I just wanted to inform that an appeal has been filed.”

Seyran Ohanyan’s representative Karen Mezhlumyan addressed this statement. According to him, the plaintiff expresses confidence that their complaint will be satisfied. “Confidence is puzzling to me. If the court administers independent justice, no one can have such confidence.”

Karine Margaryan’s representative, Anahit Beglaryan, also expressed concern about this statement of the Prosecutor. “This casts serious doubt on the independence of the judiciary, since the state representative is confident that the legally effective judicial act will be repealed.”

Gevorg Kocharyan clarified for the representatives of the parties that he did not say whether he was sure that a decision would be made in their favor. “I mentioned that I am almost certain that the complaint should be satisfied, because there is no reason to reject it. I didn’t say anything about the outcome of the case during the new examination in the Court of First Instance if it is overturned.”

Referring to the facts subject to proof, the Prosecutor said that the Prosecutor General’s Office must prove the existence of the study, its completion, the summary of the results, the fact of submitting a claim to the court. “The claimant must prove the ownership of the properties, both by title and by law, belonging to Seyran Ohanyan.”

The defendant’s position is that the burden of proof of all the facts mentioned in the claim must be borne by the claimant. “The burden of proof of the origin of the property and non-illegality of funds should not be placed on the responsible party. This is a matter of principle, the burden of proof of all the facts should be placed on the plaintiff side.

Anahit Beglaryan, in her turn, stated that the claimant side needs to prove that Karine Margaryan is not a bona fide acquirer and did not make payments for real estate on Nalbandyan Street, had not and does not own the property.

The Prosecutor stated that in his opinion, the existence of the appeal and the lack of outcome in the case are an obstacle in terms of determining the claimant’s claim and bearing the burden of proof. “But we want to leave the matter to the discretion of the court.”

Judge Karapet Badalyan announced that he will make the decision on the distribution of the burden of proof in a separate court act. After that, Anahit Beglaryan presented her position on changing the decision to apply a security measure to the real estate owned by Karine Margaryan. The representative of the 3rd party asked the court to allow them to lease the mentioned properties. The lawyer also presented the draft lease agreement to the parties. After studying it, the Prosecutor noted that he is not against the mentioned conditions and does not object to changing the means of securing the claim. “The stated conditions are reasonable.”

Anahit Beglaryan asked the court for time to submit the relevant motion. The judge noted that the party is not constrained by time, as the court must make a decision on the distribution of the burden of proof. “You can present the petition at any time. The court will make it the subject of investigation in accordance with the law.”

After the session, Iravaban.net talked to Karen Mezhlumyan and asked how the latter claims that the burden of proof should be fully borne by the plaintiff when the logic of the law is different. The institution of forfeiture of assets of illicit origin implies that the burden of proof shifts to the defendant and assets are forfeited if a legitimate source of their receipt is not proven.

Karen Mezhlumyan announced that he believes that the approach in the logic of the law is unconstitutional.

“We are dealing with a situation where a person is obliged to prove the legality of the origin of certain property, for the period when the latter was not a declarant, and did not submit a declaration,” the lawyer noted, expressing fear that any citizen may be required to prove the legality of income or property origin, but the citizen may not have such evidence.

Details in the video.

It should be reminded that the Department for Confiscation of Property of Illicit Origin of the Prosecutor General’s Office submitted a request to the court, to confiscate in favor of the Republic of Armenia from Ohanyan and his related persons, in particular:

• 2 public areas in Yerevan, a private house in Vahagni district, as well as 1 means of transport, and in case of impossibility, their average market value, which is AMD 1,092,538,513 in total,
• AMD 477,473,907 as the balance of illegal funds, as well as AMD 600,762,179, which is not justified by the legal income of a person, is of illicit origin and cannot be confiscated based on Article 20, Part 4 of the Law on Confiscation of Property of Illicit Origin.

Yevgenya Hambardzumyan