Ukraine's Court of Appeals on Jan. 30 will examine the criminal case of Armenian national Merab Aloyan-Suslov. The court has to either find him innocent, sustain the Nov. 8, 2012 ruling of Kiev's Court of First Instance (life imprisonment), or send the case back to the lower court for a new trial, if it finds significant violations that occurred during the examination of the case. The businessman, who is notorious in Russia and the Ukraine, is accused of ordering the murder of his distant relative and business colleague.

The murder occurred in Kiev in 2010, outside the 4 room furniture store founded by the two businessmen in 2008, after which the dual citizen of Armenia and Russia was arrested in Russia (Aloyan is his name as it appears in his Armenian passport; after getting married, he adopted his wife's surname, Suslov). 

Though he was arrested in Russia, Aloyan-Suslov was extradited to Ukraine, on Ukraine's request. In order to be able to hand him over to the Ukraine authorities, Russia stripped Aloyan-Suslov of his Russian citizenship. 

Aloyan-Suslov's relatives don't have any expectations from the Court of Appeals, which will be examining the case only on the basis of legal issues. Kiev's news media has been following the case and they have always emphasized in their reports that in this case that garnered wide publicity the court was unable to convince the public that Merab Aloyan-Suslov is a criminal. The main reason is that the investigation and trial of the case took place with unprecedented violations, which Aloyan-Suslov, and his attorneys and relatives have constantly raised.

Ara Ghazaryan, the attorney working on Aloyan-Suslov's complaint to the European Court of Human Rights, says that in the appeal submitted to the appeals court, all the grounds are there that the evidence that allegedly proves his client ordered the assassination are unfounded, were obtained through significant violations of the law, and cannot be used as the basis of the charges against him. According to the attorney, there is no evidence in the criminal case that Merab Aloyan-Suslov ordered the murder of Shabab Aloyan. 

Convicted on the Basis of Evidence Obtained Through Torture

The charge against Aloyan-Suslov was based, first and foremost, on the testimonies of one of the killers, David Batikyan (the other killer died during the incident), and his wife, Roza Nayt (who at the time came to Kiev with Batikyan); however, their testimonies were obtained through torture. From the materials of the case it becomes clear that police employees repeatedly abused the pair, both physically and psychologically — issuing blows to the head and kidneys; strangling them with a plastic bag; depriving them of sleep, food, and basic needs; making threats; and demanding they confess. 

"This is already grounds for the [ruling on the] case to be annulled. Evidence obtained through torture, if it remains among the array of evidence, regardless of its evidentiary significance, must be removed. Torture is difficult to prove, but it's an acceptable approach that if a person voices it [claims that torture occurred], the burden of evidence rests with the state body. They have to prove that torture didn't happen," says Ghazaryan. 

Batikyan appealed to the general prosecutors of both Ukraine and Armenia in writing, describing the torture he experienced and asking them to investigate. But the appeals went unanswered.

Convicted on the Basis of Impermissible Evidence

The three witnesses who testified against Aloyan-Suslov are not identified. They were interrogated neither at the preliminary investigation stage nor in court; Merab has never seen them and never asked them any questions, but those testimonies were used as evidence against him. "In this case we are dealing with unconfirmed evidence. The three witnesses were not subjected to cross-examination," said the attorney.

The preliminary investigative body explained that the three witnesses are in a witness protection program: their identities are hidden, and their names and addresses were changed in order to protect their lives. This is acceptable procedure, says Ghazaryan, but there is also a procedure that provides an opportunity to question such witnesses — covering their face with a veil, changing their voice, placing a partition between them, and other means. The attorney states that even if that's the case, it's not evident in the materials of the criminal case that a witness protection program is in place because such a program is an entire process: the investigator has to have made the decision and other procedural documents have to be drawn up from which it will become clear that a witness protection program was applied.  "There's absolutely nothing here; simply that the court ruling states that [my client's] guilt was proven based also on the testimonies of these three individuals. It turns out that we're dealing with unverified evidence, and this likewise has to be removed from the array of evidence. If there is no opportunity to verify the evidence, it means the trial was unjust."

Let us add that the name of one of the three individuals called to testify, Aram Iboyan, coincided with the name of Aram Iboyan, a citizen of Armenian of Yezidi origin. Through the Prosecutor General Office of the Republic of Armenia, he appealed to Ukraine's Prosecutor General, asking him to investigate how his name appeared on the list of witnesses and how so-called testimonies of his were written up in materials of a criminal case, in which he never acted as a witness and was never questioned by Ukraine's investigative bodies on this or any other case. 

According to Aram Iboyan, "I accidentally found out from news outlets that my person was presented as a witness in the criminal case of Republic of Armenia citizen Merab (Suslov) Aloyan sentenced to life in the Ukraine, and that I allegedly gave accusatory testimonies against Merab Aloyan-Suslov. In the criminal case against Merab Aloyan-Suslov, I have never participated in any court or investigative actions; moreover, I never took part in testifying against him and I never signed any protocol.

From the text of the guilty verdict it’s clear that the three main witnesses in the case were afforded protection. Their names weren’t used, but were given aliases. One was given the name “Aram Iboyan”, a false last name. So, it turns out that a certain individual gave evidence against Merab Aloyan-Suslov, was given protection, and towards this aim, was presented in the criminal case under a false name. However, for inexplicable reasons, all the details of the false name correspond with his name, surname and father’s name. This is very disconcerting to me since it causes great damage to my good name and credibility; to my family relatives and before the eyes of my community,” stated Aram Iboyan.

The latter also petitioned the Ukraine Prosecutor General Viktor Pshonka:

“…this false name, surname and family name correspond to my name, surname and father’s name. It turns out that an individual gave evidence against Merab Suslov; moreover, that evidence was of pivotal significance for the indictment and guilty sentence. It’s amazing that all the name details, in an incomprehensible coincidence, correspond to the details of my name. I have never had any court dealings with Merab Aloyan-Suslov and have never been questioned in this case; and above all, have never testified against him.

In the same case, the pre-examination bodies conducted an official deception or used my personal details, for which they have no right. What irritates me is that in the noted evidence I allegedly stated that Merab Suslov was the person who contracted the murder which is at the basis of the case, and that he supposedly told me about this. Of particular concern is that the noted evidence played a pivotal role in the charges against Merab Aloyan-Suslov and the guilty verdict against him. I request that you accept this petition as a notice regarding a violation and that you proceed according to the law.

The prosecutor general’s office launched no such procedure.

Lawyers note that the use of aliases to protect witnesses is regarded as acceptable according to Article 6 of the Convention. However, when choosing false names in practice, it is advised to steer clear of fabricated/fake first names since it cannot be ruled out that they might correspond to a name of another person.

At the same time they also note that experts regard the use of fictitious names in order to protect witnesses in a negative light, since the use of such names provide the possibility of seeking the assistance of sham witnesses and false testimony.

Sufficient time wasn’t given him to get acquainted with the criminal case materials. First, criminal case materials should have been translated, either in Russian or in Yezidi. A translator should have been provided. A translator was only provided in the third or fourth months of the court examination. Furthermore, the translator wasn’t given sufficient time to translate everything, and the case was restarted nevertheless. During the court case, the translator was translating material from Ukrainian to Russian in the court’s vestibule or during recesses.

During the pre-trial examination, Merab Aloyan-Suslov testified that he had nothing to do with the killing. “I had no connection, not even the slightest, with the crime for which I am accused,” he declared in court. During this stage, in the detention center, they continually threatened him with death and beat him. He always spoke about such incidents.

During the pre-trial phase, Merab Aloyan-Suslov was deprived of the opportunity to see his lawyers for six months. 22 of the 29 witnesses in the case never showed up in court and were never questioned. Some of the most important witnesses, in the court vestibule, said they had been tortured in the pre-examination stage and disavowed their pre-examination testimony. They removed Merab from the court during the pre-examination and even did the same to his lawyers. He was deprived of the right to make a closing statement, which is an obligatory demand according to the Criminal Procedural Code. In essence, the guilty verdict was taken in their absence.

As noted by Ara Ghazaryan, these shortcomings weren’t removed in later stages. For example, a complete examination of the case didn’t take place in the Court of Appeals, and finished after one or two sessions. However, all the shortcomings that took place during the examination of the Court of First Instance should have been removed in this stage.

“It turns out that if you remove as evidence the testimony of D. Batikyan and his wife, if you remove the testimony of the witnesses, and other “evidence” acquired through violations, what remains is merely the testimony of the relatives– the son, brother and wife - of Shabab Aloyan, the murdered party, who all, in unison, claim the one thing – that relations between Merab Aloyan-Suslov and Shabab Aloyan were tense. These statements were accepted as evidence that Merab Aloyan-Suslov ordered the murder of Shabab Aloyan. Thus, it turns out that after removing the illegally acquired evidence from the criminal case, there is no evidence remaining with which to accuse Merab Aloyan-Suslov or ordering the murder,” the lawyer stated.

Merab Aloyan-Suslov’s legal right to a fair trial was violated

The examining court body in the Court of First Instance was not created on the basis of law. In the Ukraine, they appoint judges to two terms: the first is a five year temporary term, after which the appointment is made permanent. In this case, there was two months left in the five year term of the presiding judge, but the Verkhovna Rada (Ukrainian Parliament) had already confirmed his candidacy as a permanent judge, even though he hadn’t completed the five year term in office. In other words, the body of judges examining Merab’s case wasn’t established on a legal basis.

Merab Aloyan-Suslov’s right to an open trial was violated

According to legal precedent of the European Court of Human Rights, all evidence, as a rule, must be presented in open court, in the presence of the accused, in order to guarantee competitive argument. However, not only the court of first instance, but the appeals court on April 22, 2013, reviewed the criminal case and left the lower court’s verdict standing without conducting any trial or without having its deliberations audio recorded. Reporters were barred from taking photos or taping the court proceedings. In the presence of police, the relatives of Shabab Aloyan, assaulted members of the press; hitting them and damaging their equipment. The judge then ordered that reporters be removed from the courtroom.

Doesn’t this then signify that given the weak evidence against Merab Aloyan-Suslov, the court needed to breach judicial procedure in order to find him guilty? Why should the public believe in the credibility of the charges if Ukrainian justice seeks to prove the guilt of Merab Suslov via such glaring violations?