ARM-2012-3-003

a) Armenia/ b) Constitutional Court/ c) / d) 18.12.12/ e) On the conformity with the Constitution of the provisions of Judicial Code/ g) Tegekagir (Official Gazette)/ h).

Keywords of the systematic thesaurus:

Constitutional Justice – The subject of review – Legislative provisions.

Institutions – Judicial Power, Council of Justice

Fundamental Rights – Civil rights – Right to access to court, right to judicial protection, Right to appeal

Fundamental Rights- Right to receiving response

Keywords of the alphabetical index:

Right to access to court, right to judicial protection, right to appeal, Right to receiving response, judicial power, Council of Justice.

Headnote

 Within this case the Constitutional Court held that the legal practice shall unconditionally take as a base the necessity of the constitutional right to receiving proper response in reasonable time, as directly acting right. The Court stressed that any ground that justifies the circumvent of this requirement, even the reference to law, is baseless, as the third part of Article 3 defines that the state is limited by the fundamental rights and freedoms of the human being and the citizen as directly acting rights.

Summary

The applicant challenged the sixth point of Article 111 and the first point of Article 158 of the Judicial Code of the Republic of Armenia. In accordance with Article 111 the decisions of the Council of Justice are not subject to appeal. To applicant the right to appeal is one of the elements of the right to access to court and right to judicial protection, whilst the administrative court refused to admit the suit concerned with the decision of the Council of Justice, whereby refusing performance of Justice. Besides, the applicant challenged the regulation which allows not to ground the decisions of the disciplinary commission of the Council of Justice on refusal to initiate disciplinary proceeding. The applicant also noted that the Council of Justice is not included in the system of judicial bodies described by the Constitution, consequently it does not endowed with the power to perform Justice.

The Constitutional Court stated that the constitutionally defined notion “proper response” does not only assume the form of the response or presence of it in general. It means that the response shall be legitimate and with necessary justifications. In legal state this requirement may be circumvented neither by any public official, nor by state or self-government bodies, including the Disciplinary Commission of the Council of Justice.

Concerned with the constitutional status of the Council of Justice the Court stressed that it is considered to be an independently acting subsystem, which has its definite constitutional functions in the sphere of guaranteeing the functional effectiveness of the judicial power. The Court also stated that the functions of the Council of Justice do not go beyond the realization of the constitutional function of assessment o the performance of the official obligations of the judges and the official usefulness of the judges. As for the argument of the applicant, concerned with the expression of Article 158, which defines the Council of Justice as “acting as a court”, the Constitutional Court found that this definition relates to the form of the activity of the Council, not to the functional role of it as a court performing Justice.

Taking into account the prohibition of appeal of the decisions of the Council of Justice, the Constitutional Court recognized it necessary to find out whether there are enough guarantees, within which the argued regulation may be considered to be legitimate. The Court stressed the presence of such guarantees, which are the following; the Council of Justice has constitutional basis of formation, the concrete scope of the authorities of the Council of Justice is stipulated by the Constitution, independence and impartiality are the principles of the activity of the Council of Justice, the Council of Justice perform just, public consideration of the case in reasonable time.

Based on the aforementioned the Constitutional Court recognized the expression “acts as a court” to be constitutional. The regulation on prohibition of appeal of the decisions of the Council of Justice was recognized to be constitutional within the constitutional content expressed in this decision. In accordance with it the Disciplinary Commission of the Council of Justice is obliged to ground the reasons of refusal to initiate a proceeding in case it rejects the applicant’s application.