MIKAYEL DANIELYAN – "IT’S A DIRECT ASSAULT ON FREEDOM OF SPEECH"
Ararat Davtyan

Feature Stories court society
hetq.am/en/society/gagik-shamshyan-5/
2009/04/20 | 19:11

On April 17, Gagik Shamshyan was found guilty by the Kentron
and Nork-Marash Court of First Instance for verbally assaulting
and ignoring the directives of Judge Gagik Avetisyan on August 5,
2008, during the court case of Smbat Ayvazyan. Gagik Shamshyan is a
photo-journalist who works for the "Aravot" and "Chorrord Ishkhanutyun"
newspapers.

The court found that the specific charge of showing "disrespect
towards the court" on August 5, 2008, when Mr. Shamshyan failed to
heed the directive of the judge to stop photographing the proceedings,
had been proven.

"At the beginning of the trial session Judge Gagik Avetisyan allowed
the assembled reporters to tape record and photograph for five
minutes. But Gagik Shamshyan failed to heed the directive. Moreover,
he verbally abused the court and called presiding Judge Gagik Avetisyan
a "cow" and a "dolt", his conduct disrupted court proceedings, and
thus he removed from the courtroom on the orders of the judge,"
noted Kentron and Nork-Marash Chief Court Officer Artur Pilosyan
during his testimony during the preliminary investigation. The other
court officers, Rafael Stepanyan, Shahen Ohanyan, and court secretary
Hasmik Jalalyan, literally noted the same in their testimony as well.

During the six month preliminary investigation of the case it was
the testimony of these four individuals that lead to an indictment
and the case going to a court trial.

"Both the European Council and other authoritative bodies have urged
our country on many occasions not to solely use the testimony of
police officials. Now, the same has happened in this case. They’ve
only taken the testimony of court officers and have created a criminal
case," says attorney Hovik Arsenyan. Mr. Arsenyan was present when
the incident took place, as an eye witness, and recounts what happened.

"That day, upon entering the courtroom, Judge Gagik Avetisyan
immediately told Gagik Shamshyan – don’t photograph me. Shamshyan
answered that he wasn’t photographing but rather tape recording the
judge. Perhaps not knowing that the equipment could also record and
thinking that he was being ridiculed, the judge slapped a sanction
on the reporter and ordered him to be removed.

"They can check my video camera and see that I was only tape
recording," adds Gagik Shamshyan and notes that a few days before the
incident, also during the Smbad Ayvazyan trial, Judge Gagik Avetisyan
also ordered him to be removed from the courtroom.

"Judge Avetisyan really has it in for me because I have shots of him
sleeping or picking his nose," says Shamshyan and says, "On that day
I left the court voluntarily. But the second time, on the day of the
incident in question, I refused to follow the judge’s illegal directive
and demanded a copy of the court sanction. But this only further
enraged Avetisyan and the court officers fell on me and removed me by
force. They illegally held me for about one to one and a half hours
under the first floor stairs. Then Deputy Chief Arayik Petrosyan of
the Kentron police department came and took me to the station by taxi."

"This was a direct assault on freedom of speech. I can offer no other
interpretation," states Mikayel Danielyan, President of Armenia’s
Helsinki Association. He was also in the courtroom on the day of the
incident and stresses that he didn’t hear Shamshyan utter any verbal
abuse towards the court.

Investigator Gayaneh Yeritsyan, the case investigator, took testimony
from Mikayel Danielyan and a few other eye witness reporters during
her preliminary examination. However, the only witnesses called during
the trial were the court officers and the secretary.

Mikayel Danielyan notes, "This was done so they could only record
testimony conducive to the court. Those individuals who gave factual
testimony during the pre-trial hearings or testimony that ran counter
to their aims were never subpoenaed to testify."

Prosecutor Levon Charkhifalakyan, who defended the indictment in
court, refused to answer questions posed by "Hetq". Hovik Arsenyan,
who defended the interests of Gagik Shamshyan, notes that in theory he
can present a motion to have a criminal proceedings filed against Levon
Charkhifalakyan since, "From a legal point of view there is no such
right, to take a selective approach when it comes to witnesses. But
my possibility to make a motion is theoretical because I’m realistic
and will thus not present such a motion because such a situation in
the Prosecutor General’s Office is endemic, when, in the absence of
the corpus delicti, the case is taken to trial. The objective of all
this already falls outside the legal field."

What’s noteworthy is that in addition to the testimony of the court
officer eye witnesses, the preliminary examining body sustained
the charges against Shamshyan also based on the trial session tape
recordings. These recordings are in the possession of the case but
the insulting words "cow" and "dolt" to be heard in the tapes.

During the trial Prosecutor Levon Charkhifalakyan presented a document
according to which Gagik Shamshyan was, up until August 8, 2008, under
the charge of the court and that his probation hadn’t terminated;
in other words up until the time he manifested "disrespect towards
the court" (August 5, 2008).

Let us remind readers that on July 16, 2007, the verdict against
Shamshyan went into legal force, according to which he was found guilty
of injuring one’s dignity and blackmail. The sentence of imprisonment
was conditionally never executed and one month’s probation was
substituted instead.

"Prosecutor Charkhifalakyan was convinced during the trial that they
weren’t going to be able to prove that I called the judge a "cow" or
"dolt". Furthermore, the tape recording of the court sessions also
failed to prove this. Thus he resorted to other measures," stated
Mr. Shamshyan in court. His defense lawyer called the "premeditated
appearance" of this document to be a threat and pressure tactic.

"Shamshyan, shut up and accept your guilt, otherwise we’ll treat you
more harshly because your punishment hadn’t been served and that will
be viewed as a punitive factor. This was their whole aim and it’s a
complete shame," commented Hovik Arsenyan.

He filed a court motion and requested that the court call in other
witnesses "that were present at the August 5th trial of Smbad Ayvazyan
and who, by their testimony, would give the court the opportunity to
conduct a well-rounded examination and arrive at the actual truth of
the matter."

However, Judge Armen Khachatryan overturned the motion, arguing that
the defense never supplied the court with the addresses of these
individuals and thus deprived the court of the possibility of sending
them subpoenas to appear.

Gagik Shamshyan motioned the court to call Judge Gagik Avetisyan in
as a witness "since he is at the center of this case and that I’m
supposed to have insulted him."

Judge Khachatryan stated, "You should have also included the name of
Gagik Avetisyan in your motion. Since you failed to do so, the court
will not review the matter, as an untimely intervention."

Defense lawyer Hovik Arsenyan commented, "The judges are in a tag-team
race to see who will break more laws and violate justice. This is a
huge tragedy when there are eye witnesses and we motion for them to
be questioned but they illegally refuse to do so even when we state
that we are able to call them in."

During the prosecution’s statement Prosecutor Levon Charkhifalakyan
motioned the court to fine Shamshyan no less than five hundred times
his salary

Gagik Shamshyan comments that, ""This was the greatest surprise of
the entire trial for me. I really believed that before the elections
they’d send me on extended vacation for at least three months. The
regime would have gotten rid of me and I from them."

"It is not enough that fabricated charges are being used to carry
out a criminal prosecution but that they also have the nerve to
file a motion regarding imprisonment as a penalty," said defense
attorney Hovik Arsenyan, adding that, "The incident took place in my
presence. It now comes down to the fact that I shouldn’t believe in
what I saw. In the name of the Republic of Armenia are convincing me
that the kettle is black."

"Prosecutor Charkhifalakyan believes that the preliminary investigative
body gave an accurate assessment and that it has been proven that
I called Judge Gagik Avetisyan a "cow" and a "dolt". I find it
incomprehensible that the prosecutor doesn’t view the conclusion given
by the panel of experts (regarding the playback of the court tapes
of that day) which disprove these ridiculous charges. Is the panel
lying? If so, why do taxpayer monies continue to fund the operation
of such an institution?" asks Mr. Shamshyan

In his statement for the defense, Hovik Arsenyan noted that it was
necessary to halt "the false and illegal criminal persecution of
the reporter". Shamshyan joined the motion and refused to make any
closing statement in his own defense.

In a statement to the court Mr. Shamshyan noted, "All I wish to
say is that I carried out my professional duties and that Judge
Gagik Avetisyan not only hindered my work but the work of all the
assembled reporters at the trial." He went on to state that due to
the machinations of Judge Avetisyan many other similar incidents have
taken place and that as a result of these intrigues those in charge
of the courts give false testimony."

"I would like to quote from the great philosopher Chesterfield who
stated that the last refuge of fools and cowards rests in falsehood
and perfidy."

On April 17, Judge Armen Khachatryan handed down his sentence in the
case, "Gagik Shamshyan is found guilty of the charges and fined for an
amount 350 times his minimum salary". Mr. Shamshyan said, "I’d rather
see the money go to fund child orphanages. I am not ready to pay a
fine for something I didn’t to, even if it’s just one dram. Thus,
we’ll appeal the verdict."

The reporter stated that if the Court of Appeals doesn’t overrule
the verdict he will definitely take the case to the European Court
of Human Rights.