Monday, 24 September

The Court of Cassation Will Hear the Najarians' Case

The Court of First Instance of the Kentron and Nork-Marash Communities of Yerevan has partially satisfied the claim of US citizen George Najarian, ruling to continue the criminal investigation into the case and to involve George Najarian as the aggrieved party. The Office of the Prosecutor General of the Republic of Armenia opposed the ruling, filing an appeal with the Court of Review on Criminal and Military Cases. In March 2005, the Court of Review upheld the decision of the Court of First Instance. This time, the Prosecutor's General's Office appealed to the highest court in the Armenian judiciary, the Court of Cassation on Criminal and Military Cases of the Republic of Armenia. The case will be heard on April 22, 2005 .

The Court of Cassation may either uphold the decisions of the two lower courts, or send the case back to the Court of Review for adjudication by a new panel.

Ashot Boghossian, the Najarian's lawyer, believes that the Court of Cassation will uphold the decisions of the two lower courts. However, there are circumstances that suggest the reverse may be true.

The Appeal of Cassation submitted by the General Prosecutor's Office is almost identical to the Appeal of Review submitted previously, with the same arguments, which were entirely and firmly rebutted in the Court of Review's decision on the appeal. This suggests that the prosecutor General's Office has certain expectations of the Court of Cassation.

In its appeal, the Investigative Department of the Prosecutor General's Office, referred to a letter from Grigor Igityan addressed to the president of the republic as additional grounds for substantiation. The letter describes a number of incidents, of which the Prosecutor general's office singled out only one: George Najarian, through his representative, offered $150,000 to Grigor Igityan against the "return" of the buildings at issue. That is, the Prosecutor General is trying to maintain that Igityan committed no fraud.

Meanwhile, study of the case material and discussions with George and Carolann Najarians suggest that the Prosecutor General's Office stubbornly rejected requests by the Najarians' attorneys to involve George Najarian as an aggrieved party and to bring charges against Igityan. First, the Najarians were assured that the case was going forward and that it would soon be resolved, and then later, in private discussions with the Najarians, officials from Prosecutor General Office tried to persuade the Najarians that there was no evidence of crime in Igityan's actions, and advised them to reach a settlement. In addition, The Prosecutor General Office adamantly refused to make the materials of the case available to the Najarians' attorneys for review, and the materials were made available only during the hearing in the Court of First Instance, after the Najarians appealed the General Prosecutor's decision to dismiss the case.

It is also apparent that the Prosecutor General's Office did not verify whether or not Najarian had made such an offer, since the case was dismissed, no one was questioned afterwards, and the case materials contain no evidence of such an offer. It is yet to be known why the Prosecutor General's Office, for the purpose of backing its decision, is throwing this incident at the highest court of the county, an incident which, in addition to having no legal significance, has not even been verified.

Igityan's letter states: "Under the cover of a partnership, Najarian extorted large sums of money from me for many years, which I provided to him, not only for the purposes of that partnership, but also for Najarian's and his wife's personal use." Apparently, the true nature of the partnership is a secret reserved for Igityan and the Prosecutor's General Office alone, since Igityan stated exactly the opposite in his recent testimonies, i.e., he had no partnership with George Najarian. Igityan's statement also suggests that the Najarian family survived only thanks to his help, and that Carolann Najarian's humanitarian projects were conducted using his money. As of today, the Prosecutor General's Office has yet to verify the sources of Igityan's wealth, while, according to invoices and other documents in the case, Igityan earned only $10,000 in the last ten years.

In his letter, Igityan also accused the media, specifically, the newspaper AZG and the TV channelArmenia, for conducting a "campaign of provocation and slender" against him.

The 1992 Bilateral Investment Treaty signed between the USA and Armenia in Washington , DC , the provisions of which were kindly interpreted at our request by the US Embassy in Yerevan , establishes an agreed-upon legal basis to protect and encourage investments between the United States and Armenia . According to the Armenian Constitution, the treaty prevails over Armenian legislation. The Treaty establishes most-favored-nation (MFN) and national treatment standards for investors from both countries, which means that Armenia and the U.S. must grant each other's nationals treatment no less favorable than those granted to its own or third country nationals. The treaty establishes international legal standards for expropriation and compensation for expropriation. These rights apply to direct and indirect state measures tantamount to expropriation or nationalization, and thus apply to "creeping expropriations" that result in a substantial deprivation of the benefit of an investment . The Treaty calls for prompt, adequate, and effective compensation in such cases of expropriation, such compensation being equivalent to fair market value of the expropriated investment immediately before the expropriatory action was taken or became known (whichever is earlier), be paid without delay, including interest. The Treaty states that each country must provide effective means of asserting rights and claims with respect to foreign investments from the other country. The Treaty guarantees access to binding international arbitration (without first resorting to domestic courts) for investment disputes between the government of one country and a national or company of the other. The Treaty grants the investor the freedom to choose to resolve disputes with the host government through international arbitration . The Treaty prohibits discriminatory treatment by the governments of the United States or Armenia against investments by nationals of the other state and guarantees fare and equitable treatment of investments in accordance with international law.

Meanwhile, in the Najarians' case, the Prosecutor General's Office not only failed to secure most-favored-nation or national treatment standards, not only failed to provide effective means of asserting their rights and claims, but instead, judging from the decisions of two courts, committed violations of law during the investigation and deprived the Najarians of their rights, subjected the Najarians' investments to "creeping expropriation", with no compensation (the fact is that for about two years now, Igityan has denied the Najarians access to the Dzoragyough buildings, and obstructed their construction workers from trying to prevent the damage of the buildings), providing an unverified incident described only by Igityan as "additional evidence". In this regard, the Court of Review decision specifically provides the following: "Through not recognizing George Najarian as an aggrieved party the investigation committed a material breach of the law, due to which George Najarian was deprived and distanced from his rights guaranteed by the law, and the principle of full, fair and thorough investigation was breached, influencing on the correct decision on the case. While recommencing the investigation the investigative body shall involve George Najarian as an aggrieved party, and shall fully and fairly examine the evidence based on the facts brought by George Najarian, and through analysis of each piece of evidence obtained, compare such with other evidence and through examining the source of each piece of evidence obtained, and through evaluation of each piece of evidence by its association and permissibility, through merging evidence for the purposes of the case, the investigative body shall come to an appropriate conclusion."

By submitting an Appeal of Cassation, the Prosecutor General's Office effectively refused to comply.

According to the US Embassy in Yerevan , the obligations of the treaty are applicable to all political subdivisions of the parties, such as state and local governments. That is, the Najarians are entitled to apply to international courts, including those of the United States , for the protection of their rights.

Carolann Najarian is in Yerevan now. I asked her if she had taken her case to the US court. She answered, "We have tried hard right from the beginning to keep this case within the framework of the Armenian judiciary. We hope we will not be forced to do otherwise."

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