ARM-2014-1-001
a) Armenia / b) Constitutional Court / c) / d) 18-04-2014 / e) / f)
On the conformity with the Constitution of the provisions of Law on Advocacy / g)
Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
General Principles - Rule of law. |
|
Fundamental Rights - Economic, social
and cultural rights - Right to education. |
|
Fundamental Rights - Economic, social
and cultural rights - Right to work. |
|
Fundamental Rights - Economic, social
and cultural rights - Freedom to choose one's profession. |
Keywords of the alphabetical index:
Expectation, legitimate, law, clarity.
Headnotes:
Within the rule of law, regulations set
forth in the law shall specify a person’s legitimate expectations. The right to
legitimate expectations is one of the integral elements of the guarantee of the
rule of law. This fundamental idea is the basis of legal regulations and
law-enforcement practice.
Summary:
I. The applicant challenged a provision
in the Law on Advocacy. The disputed provision stipulates that in order to
attend the Advocate School, an individual must possess a Bachelor’s Degree in Law or a
qualification degree of certified specialist. To the applicant, the provision
allows for discrimination, as it does not clarify whether a person who earned a
Master’s Degree in Law would
satisfy the meaning of a certified specialist, such that he would qualify to
become an advocate. The said provision, however, limits the performance of such
right. The applicant also stated that the provision violated his legitimate
expectations, as he obtained his Master’s Degree in Law before the adoption of
the disputed provisions.
II. After reviewing the case, the
Constitutional Court noted that the legislature defined common educational
criterion for candidates, including judge, attorney, investigator, advocate and
notary. That criterion is the obtention of a Bachelor’s Degree in Law or the obtention of degree of the qualification of higher legal
education of certified specialist. The Court stated that this requirement is
not an aim per se, as the analysis of the respective legislation shows
that within any university specialisation, a master’s degree is considered
to be a system of deepening of that specialisation.
Simultaneously, the Court noted that the
educational system in Armenia allows an individual holding a bachelor’s degree in other specialisation or certified specialist of other specialisation to enter a master’s degree programme related to another specialisation.
In this regard, the Court stated that the credit system introduced as a result
of the process requires certain credits to obtain the corresponding
professional qualification within the educational system. Consequently, the
qualification of a master’s
degree shall be considered to be a higher educational degree within that
certain specialisation only when the credits required
for that specialisation are cumulated. The Court
underscored that only in this case, the person could be considered to be a
holder of a second degree, i.e. master’s degree of that specialisation
within the corresponding educational programme.
The Court noted that the mentioned issue
is not definitely stipulated by Armenian legislation, which includes a high
risk of human rights violations. The respective legislations do not specify the
approach towards the legal content of different degrees of education,
continuation of education, credits cumulative system and towards the common
criteria in the respective field. As a result, the person does not possess a
right to work in certain professions, as well as a right to obtain further
professional education even after receiving an education at the state
educational institutions.
The Court considered the consequences due
to the lack of clarity. On the one hand, the person passes the exams, enrols in a master’s degree programme,
and obtains a state diploma, but later finds out that he cannot work in that
profession due to the limitations defined in various legal acts. On the other
hand, he can get a master’s
degree in another specialisation in one or two years
and earn a state diploma without cumulating the necessary credits.
After considering the case, the
Constitutional Court stated that the applicant’s right to legitimate
expectation was breached and that the challenged provision blocks an individual’s right to qualify to enrol in the Advocate School due to concerns about the
appropriate qualification of certain higher degrees. The Court declared it
unconstitutional and void.
Armenian.