ARM-2015-1-001
a) Armenia / b) Constitutional Court / c) / d)
03-03-2015 / e) / f) On the conformity with the
Constitution of the provisions of the Administrative Procedure Code of the
Republic of Armenia / g) Tegekagir
(Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
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Fundamental Rights - Civil and
political rights - Procedural safeguards, rights of the defence
and fair trial - Access to courts. |
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Fundamental Rights - Civil and
political rights - Procedural safeguards, rights of the defence
and fair trial - Right to counsel. |
Keywords of the alphabetical index:
Application to court, electronic form,
requirement / Access to court, condition.
Headnotes:
A provision whereby an application can
only be made to the Court of Cassation through a lawyer is out of line with the
right of access to court. Conditions can be imposed provided they are
reasonable and not unachievable.
Summary:
I. The applicants challenged a regulation
of the Administrative Procedure Code which stated that a person only had the
right to apply to the Court of Cassation through a lawyer. They also took issue
with a provision of the same Code which required applicants to attach the
electronic version of the application to the paper version and the relevant
documents.
In terms of the stipulation that
applications to the Court of Cassation could only be made through a lawyer, the
applicants noted that the State had to set out a mechanism for providing free
legal aid regardless of the financial condition of the party. They pointed out
that financial means are needed to secure the services of lawyers, which often
means that such services are unavailable. The issue the applicants had with the
second provision was that it was vague; it was not clear what kind of
electronic version should be attached to the application and by what kind of
electronic device. They suggested that it meant that those without access to
computers, printers and electronic devices were precluded from bringing a case
before the Court of Cassation.
II. The Constitutional
Court noted that the regulation prior to the norm under challenge did not
preclude a direct application to the Court of Cassation, without a lawyer. In
this regard, it found that the new regulation did limit the right of access to
the Court of Cassation.
It reaffirmed the legal provisions which
had been expressed in DCC-765 and DCC-833. The concept of only being able to
apply to the Court of Cassation by a lawyer can only be
legitimate if the legislation safeguards the universal right to legal representation
irrespective of the financial situation of the parties concerned. The Court
held that the legislator had not taken into account the respective legal
positions of the Court, particularly those referring to the issues of financial
discrimination.
In terms of the regulation which requires
applicants to submit an electronic version of the application to the Court of
Cassation, along with the other documents, the Constitutional Court noted that
the right to access to court is not absolute; various conditions can be
imposed. This requirement did not, in the Court’s view, block the
possibility of exercising the right to access to court. It did not require a
person to achieve something that was impossible or to behave in contravention
of the axiology of the Constitution, and it did not lead to destruction of the
substance of law. The Court also emphasised that the
legislation did not define the criteria of the electronic version of the
application. The absence of mandatory criteria should be construed as the right
of a person to choose any format and any criteria for the electronic version of
the application. The Court also noted that a party could use any electronic
device to submit an electronic version of the application.
The provision did not, in the Court’s opinion, make it
compulsory to attach the electronic version to the paper form of application.
The applicant could send it via e-mail. At the same time, the Court stressed
that the common criteria should be legally defined.
The Constitutional Court declared that
the provision whereby applications could only be made to the Court of Cassation
through a lawyer was in breach of the Constitution and void. The second
provision was in line with the Constitution, within the legal positions
expressed in the decision.
Armenian.