ARM-2013-2-002

a) Armenia / b) Constitutional Court / c)  / d) 31-05-2013 / e)  / f) On the conformity of the provisions of Criminal Code with the Constitution / g) Tegekagir (Official Gazette) / h) .

Keywords of the Systematic Thesaurus:

1.3.5.2.1         

Constitutional Justice - Jurisdiction - The subject of review - Community law - Primary legislation.

1.3.5.12          

Constitutional Justice - Jurisdiction - The subject of review - Court decisions.

1.5.4.3            

Constitutional Justice - Decisions - Types - Finding of constitutionality or unconstitutionality.

5.3.13.3          

Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.

Keywords of the alphabetical index:

Right, apply to the Constitutional Court / Right, judicial protection / Review, judicial act, reopen case / Proceeding, new circumstance, new evidence.

Headnotes:

The effective realisation of the right to apply to the Constitutional Court to reopen a case based on new circumstances requires legislation to review judicial acts based on the Court s decisions. This will allow a person to repair his/her rights that have been violated by the application of unconstitutional norms. The Court also stated that the purpose of such regulation shall be access to justice, as well as guaranteeing the effectiveness of the judicial protection of the persons  constitutional rights.

Summary:

I. The applicants challenged Part 2 of Article 426.9 of Criminal Code, which is dedicated to the issue of reopening a case based on new or newly emerged circumstances. The applicants noted that the right to apply to the Constitutional Court is intangible if its decision, by which a norm has been declared to be in contravention to or in compliance with the Constitution, does not consider reparation. To the applicants, the review of the judicial act, including application of the unconstitutional norm, shall be performed ipso facto.

II. The Court stated that the primary issue related to maintaining the legal force of the judicial act, namely enforcement of an unconstitutional legal provision in light of the proceeding to review the judicial act based on new circumstance. The Court emphasised that the constitutional content and purpose of instituting the review are for reparation of the violated rights, which requires eliminating negative consequences that emerged as a result of their violation.

The Court noted that the aforementioned, in its turn, demands restoring the situation that existed before the violation occurred. In this regard, the Court stated that recovery of the violated rights may be ensured in case of loss of the legal force of the relative judicial act. Thus the relative judicial act shall be abolished/reversed, and this requirement should be stipulated by legislation.

The Court stated that the notion of «review of judicial act» based on new circumstance is equivalent in its content with the notions of «reparation of case» and «reopening of the case». The Court considered that the review may occur only if new consideration of the case is guaranteed. The Court also held that the review of the judicial act on the ground of new circumstance shall, ipso facto, lead to reversal of the judicial act, including application of unconstitutional norm and to reversal of the judicial act violating conventional right.

The Court also defined the legal approaches to comply with the legislation and the process to implement the institute of review, as described below:

1. Statement of new circumstance to apply for the review and evidence proving the new circumstance attached thereto, in addition to all other requisites, shall be sufficient ground for commencement of review proceeding;

2. Review proceeding may be rejected only if upon consideration of the application within the commenced review proceeding, it is found out that the circumstance stated in the application is not a ground to review the judicial act; and

3. Legal approaches expressed in the judicial acts that serve as new circumstance shall be taken into account within new consideration of the judicial act, which loses its legal force.

The Court also addressed the regulation set forth in the challenged norm, which stipulate that the judicial act may not be changed as a result of the review of judicial act based on new circumstance only if the judge grounds determined that the new circumstance could not influence the outcome of the case. The Court stated that in reality, the regulation serves as a guarantee for protection of the rights.

Languages:

Armenian.