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4 people were reported to have injuries: the manager of the ‘Tsghotner’ hotel complex Artyom Hakobyan, director Gevorg Aghajanyan and his brother Gegham Aghajanyan and Valerik Petrosyan.

 

A criminal case was initiated the same day. The indictments brought in against the hotel manager A. Hakobyan were changed several times. As an answer to the indictments brought in against him he said that ‘after receiving a gunshot injury in the area of the head from V. Petrosyan and feeling that tension increases and it is not excluded that V. Petrosyan will shoot again, he went to the cleaning ladies room and took his shot-gun’. Moreover, ‘since the gun was filled with splinter bullets, it also hurt Gegham’s shoulder (G. Aghajanyan’s brother)’. When the case was sent to the court A Hakobyan stated that ‘he does not find himself guilty in the indictment brought in against him, since he did not have the intention to kill anyone and shot at V. Petrosyan in order to prevent his further shots’.

 

The next defendant on the same case V. Petrosyan said that ‘his gun shot by itself’.

 

Valerik Petrosyan was found guilty at the court of General Jurisdiction of Center and Norq Marash administrative districts of Yerevan on February 4, 2010 on the grounds of Article 34-104 Section 2 Clause 1 (murder attempt of two or more people) of the RA Criminal Code and Article 235 Section 1 (arrest as a punishment maximum for the period of three months or imprisonment for three years maximum) and Article 66 (appointment of punishment by the combination of crimes) of the RA Criminal Code and sentenced to 12 years of imprisonment.

 

A. Hakobyan was found guilty on the grounds of Article 34-104 Section 2 Clause 6 (murder attempt threatening the lives of many people) of the RA Criminal Code and was sentenced to 8 years of imprisonment.

 

The lawyers of the defendants V. Petrosyan and A. Hakobyan, G. Hakobyan and A. Qalashyan respectively appealed the sentence.

 

However, the Court of appeal left the sentence of the Court of First Instance from February 4, 2010 unchanged.

 

A.Hakobyan’s lawyer A. Qalashyan appealed that decision, noting that ‘any damage can be caused to the abuser during the necessary protection, thus V. Petroyan’s health is contested on unreasoned grounds’.

 

The lawyer also noted that in case of having the intention to kill nothing would stop A. Hakobyan from shooting the last bullet remaining in the shot-gun at V. Petrosyan. However, he did not do that, which shows that the objective of shooting at V. Petrosyan was to prevent him from further shootings, which took place, since V. Petrosyan stopped shooting and left.

 

Nevertheless, A. Hakobyan’s action was qualified as a murder attempt, whereas according to the lawyer all the necessary features for defence are present in A. Hakobyan’s action.

 

Taking this and many other arguments into the account Qalashyan found that ‘there is no reasoning to qualify the action done by A. Hakobyan as a murder attempt’.

 

Having examined the case the Court of Cassation states that ‘the necessary protection, as a condition for removing the criminality of the action, can be expressed in the situations when the life, health and rights of the person or state are protected from the abusive action that threatens the public by means of causing damage to the abuser. The necessary protection of the personal life, health and rights is seen as a fundamental human right’. 

 

The Court of Cassation states that ‘the conclusion of the Court of First Instance and the Court of Appeal that found A. Hakobyan guilty on the grounds of Article 34-104 Section 2 Clause 6 (murder attempt of two or more people) of the RA Criminal Code, since the circumstance of the damage by A. Hakobyan to V. Petrosyan caused in the light and in the conditions of the abusive actions by the latter was not considered’.

 

The Court of Cassation finds that the sentence against A. Hakobyan on the grounds of Article 34-104 Section 2 Clause 6 of the RA Criminal Code and the decision of the Court of Appeal to leave it unchanged are not lawful, reasoned and argumentative.

 

Additionally, the Court of Cassation states that the Court of Appeal permitted a judicial error when presenting a judicial act on the indicated case, violations of the material and criminal procedure rights, which are substantial, since they influence the making a right decision on the case and concludes that ‘the indicated judicial error, that influenced the case outcome, undermines the very essence of justice, the meaning of the sentence, as an act of justice, undermines the required balance of the interests protected by the Constitution’.

The Court of Cassation also finds that there is also a problem of ensuring uniform application of the Article 42 of the RA Criminal Code.

 

Based on the above-mentioned and being guided by Article 92 of the RA Constitution and Articles 403-406, 419, 422-424 of the RA Criminal Procedure Code, the Court of Cassation made a decision to partially satisfy the cassation complaint, declare the decision of the Court of Appeal from May 3, 2010 on leaving the sentence of the Court of General Jurisdiction of the First Instance unchanged as void and send the case to the same court for a new investigation.