On August 20 of 2021, Yerevan Court of General Jurisdiction (chaired by Judge M. Makyan) adopted a decision to oblige the body in charge of conducting the proceeding to eliminate the violation of rights of citizen A.H. presented and stated by the decision on “discontinuation of the proceeding of the criminal case” adopted by H. Petrosyan, Senior Investigator of Investigative Division of Yerevan Erebuni and Nubarashen Administrative Districts of the RA Investigative Committee, on 29.12.2020.
The Court stated, that the discontinuation of the proceeding instituted based the criminal cases was groundless and the rights of citizen A.H. were violated by artificially restricted by depriving the latter to participate in the criminal procedures.
It should be mentioned that, on September 18 of 2020, A. H., the legal successor of F.H., filed a report on crime to the Republic of Armenia Prosecutor General’s Office on the failure to provide proper medical treatment for COVID-19.
Based on the documents and relevant materials, a criminal case was instituted at the Erebuni Subdivion of Yerevan Police Department according to the characteristic of Paragraph 2 of Article 130 of the RA Criminal Code.
On December 23 of 2020, A.H., the legal successor of F.H. filed an application to the body in charge of carrying out the preliminary investigation, with the request to inform what kind of measure were taken in the scope of the instituted criminal case.
No response to the application was received, after which, both applications, including also the application on the demand to recognize the legal successor of the victim remained without response.
Only after the oral conversation with the preliminary investigation body, the applicant was informed and received a decision, according to which the instituted criminal case was discontinued on December 29 of 2020. It was detected, that the judicial measures to recognize the legal successor of the victim will be conducted after the receipt of the conclusion of the forensic examination.
The body in charge of conducting the preliminary examination has filed a statement, reporting, that “taking into consideration, that all the necessary investigative and judicial measures were taken during the preliminary investigation stage of the case, however, during the current stage of the preliminary investigation, it is impossible to detect the identification of the person involved as the victim without the conclusion issued by the forensic examination council”.
On May 5 of 2021, an appeal was filed to the prosecutor in charge of ensuring control over the criminal case with the request to eliminate the decision to discontinue the criminal case.
On May 31 of 2021, the prosecutor forwarded the decision to reject the application.
The applicant filed an appeal to the court against the decision on the rejection of the decision, raising the illegality issue for the failure to grant the applicant the status of the legal successor of the victim.
Based on the presented appeal, the Court stated, that the criminal procedural norms clearly define the grounds to discontinue the criminal case, however, there is no ground to appoint an examination by the criminal case or to discontinue the criminal case conditioned by the circumstances to forward the latter to examination.
In this regard, the facts presented by the investigator and the prosecutor were pointless.
As for the status of the legal successor of the victim, the Court stated, that according to the explanations presented by the investigator and the prosecutor ensuring the judicial control over the case, the request of A.H. to recognize her as the legal successor of the victim was rejected, since she applied only after the forwarding the criminal case to examination and conditioned by it after the discontinuation of the proceeding of the criminal case. Therefore, when the body in charge of conducting the proceeding discontinued the proceeding instituted on the ground of the criminal case on its own initiative, by creating an artificial obstacle for A.H. to be involved as a legal successor, and by that artificially created obstacle rejected the legal demand to grant the latter with judicial status.
Meanwhile, while receiving the judicial status of legal successor, the latter could have exercised the rights vested to the judicial subject.
In the presented case, in case of forwarding the criminal case to examination, A.H. could have presented other questions to the experts, which could have importance in order to ensure the objective and comprehensive examination of the case.
The interests of A.H. were presented by the lawyers of the Protection of Rights without Borders NGO.