The court hearing on the case of confiscation of allegedly illicitly obtained property of former head of the Judicial Acts Compulsory Enforcement Service, former MP Mihran Poghosyan and 7 related persons took place on October 30 at the Anti-Corruption Court, presided over by Judge Rudolf Avagyan.
According to Iravaban.net, at this court session, the responding party presented a motion.
The respondent’s representative Aram Orbelyan noted that in the case, one person is being asked for previously consumed or spent property, while it is not being demanded from another person because they do not have property exceeding 50 million.
“The court has the opportunity, within the framework of constitutional interpretation, to interpret the law in such a way that an unconstitutional situation does not arise by applying the prescribed procedures. In case the court finds that such interpretation of the law, which we are saying, does not exist, there will be an issue of applying to the Constitutional Court, and at that time we should ask the court to allow us to present a motion before making a decision. Why aren’t we applying to the Constitutional Court now, because we believe the court has the opportunity to interpret the law in accordance with the Constitution, by directly applying human rights norms provided by the Constitution to exclude discrimination and on that basis accordingly consider the requirement of legal income against previously spent property that no longer exists as illegitimate: this is the essence of the motion,” said Orbelyan.
Addressing one of the grounds of the motion – the prohibition of retroactive force of aggravating law, Arthur Hovhannisyan noted that before the adoption of the “Law on Confiscation of Illegally Obtained Property” in May 2020, if a person had illegally obtained property, gave it to another person, and instead, based on Article 20, Part 4 of the law, the prosecutor’s office demands to confiscate the person’s legal property after the law came into force, in that case the law is given retroactive force on aggravating grounds.
Article 20, Part 4 of the law stipulates the following: 4. If illegally obtained property has been transferred to a bona fide acquirer, or it is impossible to identify, separate or confiscate it, then by court decision, if there is a corresponding claim, an amount equal to the market value of the illegally obtained property at the time of filing the lawsuit may be confiscated from the respondent.
Hovhannisyan noted the following: “As a result of legal relations before the law came into force, if a person had illegal property, then gave it to someone else, the legal relations arose, ended, ceased before May 2020, then we adopt a law that comes into force in May 2020, by virtue of which we demand confiscation from legal property due to the origin, change from previous legal relations, thereby giving retroactive force to the new law.”
According to the representatives of the respondents, in the context of conducting expedited proceedings, the court can pay attention to Article 73 of the Constitution (1. Laws and other legal acts deteriorating a person’s legal status shall not have retroactive effect. 2. Laws and other legal acts improving a person’s legal status shall have retroactive effect if it is provided by these acts), which refers to the retroactive force of laws, and on that basis not apply Article 20, Part 4 of the law, but on the contrary, consider the claim “unfounded” and reject it.
Arthur Hovhannisyan emphasized that in case of application of that article of the law by the court, it will be necessary to make it a subject of discussion in light of Part 1 of Article 73 of the Constitution.
It was noted that the presented motion does not relate to other monetary funds in the claim, but to 6 billion 141 million 24 thousand drams mentioned in part 2 of point 10, which, according to the prosecutor’s office, is not justified by the person’s legal income, has illegal origin, while 465 million 628 thousand 637 drams will be discussed within the framework of distribution of burden of proof.
Prosecutor Tigran Yenoqyan said regarding the motion that reference is made to Article 303 of the Civil Procedure Code, asked whether it can be recorded that regarding the monetary claims mentioned in point 10 of the lawsuit, there will be no need in the future to interrogate witnesses, experts, examine evidence. Orbelyan replied that at this point the answer is positive, as such a claim should not be examined in court, and even if that claim is proven, it cannot be satisfied.
“At this point, if we are applying expedited proceedings, the court has the opportunity to essentially reject this claim without considering factual circumstances as established or not established, this does not mean that the expenditure of this amount will not be discussed within the framework of discussing other claims, it will also be discussed because the expenses will be evaluated for assessing the legality and illegality of other properties,” he noted.
The prosecutor responded: “At this stage, you are saying it’s obviously unfounded, but you may review your position later because if the court makes a different decision, we will review our position. If you are citing obvious groundlessness, it should be principled for you, it should remain in future processes as well.”
The advocate again insisted that there is no issue of principle, and regardless of the amount, the court cannot examine the claim for confiscation of previously spent money.
The prosecutor stated that the motion should be rejected, considering that the case is multi-episodic, extensive, and without examining the evidence in the case, the court cannot reach such a conclusion that the claim is “obviously unfounded” – even for the part about being unfounded, the evidence must be examined.
“Even the responding party has noted in the motion that evidence must necessarily be examined, I’ll quote from the motion: ‘as follows from the logic of the law, claims presented within the framework of proceedings for confiscation of illegally obtained property will be subject to satisfaction regarding monetary claims only when the presence of allegedly illegal monetary funds that are the subject of the claim is proven.’ Based on this, accelerated proceedings cannot be applied and some part cannot be separated to reject the presented claim.”
According to Yenoqyan, the party hasn’t even distinguished what legal properties Poghosyan has, against which, for example, the 6 billion 141 million 24 thousand drams could be applied: “According to our study data, the majority of this money has been transferred abroad, including to offshore zones, I don’t know whether it has been converted into other property or not, but, in any case, we have found that it hasn’t been identified in that way, only the names of countries are known to us.”
After hearing the positions of the parties, the court rejected the presented motion, pointing to the relevant legislative regulations in this regard, noting that there is no basis for applying expedited proceedings, as the court must be clearly convinced that the presented claim is not legitimate.
The court session was postponed, at the next session the responding party will present a motion to apply to the Constitutional Court regarding the constitutionality compliance of another regulation of the law.
The next session will take place on November 13.
Mariam Shahnazaryan
