The court rises instead of the defendants

by Armen Hakobyan

Published: Friday January 30, 2009

Supporters of the defendants in the Case of Seven protesting outside the courthouse. Photolure

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Yerevan - After a series of delays, the latest court date of the Case of Seven was set for January 30. On trial are former foreign minister Alexander Arzoomanian, members of parliament Hakob Hakobyan, Miasnik Malkhasian, Sassun Mikaelian, and three others on charges of organizing mass disorders in which murders occurred, and planning to usurp state power.

The trial initially began on December 19, 2008. To date, Judge Mnatsakan Martirosian has postponed it five times. The reason for each postponement is that the defendants refuse to rise when the clerk of the court intones the Armenian version of "All rise." Considering their refusal to rise contempt of court - and indeed, that is how the defendants describe it too - the judge has had the defendants removed from the court and postponed the trial each time.

Prosecutor Koruyn Piloyan said that the defendants are attempting to delay the trial each time to avoid prosecution. Moreover, saying that the European Convention allows it, he declared that if the defendants continue their contempt, he shall ask for the trial to continue in their absence. Armen Harutyunyan, Armenia's Human Rights Defender, has stated that proceeding in the absence of the defendants would be unlawful under Armenian law.

Indeed, Article 302 of Armenia's Penal Code seems to be very clear on that point.

But the well-known defense attorney Ruben Rshtuni thinks the trial can continue in the defendants' absence if they are disruptive. "As I see it, the possible solution to this case is that the defendants are dismissed from the court and the trial proceeds in their absence," Mr. Rshtuni said. "I think the judge can do this. We cannot suggest this as a general solution. However, if their attitude is offensive or it hinders the process of the trial, this solution might be justified. I might have done the same from the very beginning."

Mr. Rshtuni said it was a matter of simple civility. "I have had the chance to participate in politically motivated trials in the mid-90s - where charges were brought against several members of the Armenian Revolutionary Federation. Back then, the defendants adopted a respectful attitude toward the court, although they saw the accusations as being untrue and political."

Pargev Ohanian, head of Presumption Judicial Center, is a former judge. He was deposed soon after rendering a rare not-guilty verdict in a case brought on behalf of Armenia's Customs Service. He joined the opposition and headed one of Levon Ter-Petrossian's campaign offices in Yerevan in the 2008 presidential elections.

"Judge Martirosian found the defendants' attitude of not rising before the court offensive and dismissed them from the hearings," Mr. Ohanian said. "By doing this, he administered a sanction set by law. According to the law, such a step is permitted; but, the court hearing is thereby also postponed. The law is that a court hearing cannot take place without the presence of the defendant."

The former judge added, "When a case is postponed in this way and the defendants remain in custody, they do not get credit for time served."

Mr. Ohanian noted that other sanctions, such as fines, are also available to the court.

"If the defendant causes disorder, disturbs the session, is really offensive, and has an impolite attitude, the judge may assert that it is impossible to continue with the hearing under these circumstances. In that case, dismissing the defendant would be right and proper. But, in the present case, dismissal is not fair," he said.

When asked what he would have done if he were in Judge Martirosian's position, or whether a similar case happened where the defendant refused to rise, the former judge replied, "There were a couple of cases where the defendants refused to rise. But I did not pay attention to them. In this case, I would have proceeded with the hearing. The attitude of the court in this case, in particular the attitude of Judge Martirosian, reflects an unhealthy egoism."

It should be noted, however, that at least one defendant was heard shouting profanities from the dock, and the judge may consider it best to nip in the bud any manifestations of contempt.

The hearing on January 30, 2009 was postponed, yet again, because the defendants refused to rise.

Excerpts from Armenia's Penal Code

Article 302: Participation of the defendant in the trial

The trial proceeds in the presence of the defendant, whose presence at the court is obligatory.

Article 314: Procedure of court hearing

1. At the moment of the entrance of the judges into court, the clerk announces, "Stand up, the court is coming!" All those present at the court hearing rise to their feet.

2. All participants in the court hearing address the court as "Honorable court," after that make all the necessary statements, appeals, and challenges standing. Deviation from the form of address is allowed by permission of the chair.

3. The chair's instructions are mandatory for each person participating in the court hearing or present at the court hearing.