CODICES

 

ARM-2005-2-001

 

a) Armenia / b) Constitutional Court / c)  / d) 06-05-2005 / e) DCC-563 / f) On the conformity with the Constitution of the Law on "The Human Rights' Defender" / g) to be published in Tegekagir (Official Gazette) / h) CODICES (English).

Keywords of the Systematic Thesaurus:

3.12

General Principles - Clarity and precision of legal provisions.

4.12.9

Institutions - Ombudsman - Relations with judicial bodies.

5.3.13.14

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

5.3.13.19

Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Equality of arms.

Keywords of the alphabetical index:

Ombudsman, powers / Court, independence, right to information, parties, equality / Ombudsman, court, information, right to request.

Headnotes:

The right of the Defender to request information from courts and submit recommendations to courts is not caused by the necessity to administer independent and impartial justice, and it creates an inter-legislative contradiction. The practice of law enforcement demonstrates that this provision interferes with the functions of the judiciary and it is not in conformity with the provisions of  Articles 39 and  97.1 of the Constitution.

The right of the Defender to request information from courts should be satisfied, if it does not interfere with judicial proceedings, if it does not concern the administration of justice by a concrete case, and if it does not concern the material and procedural issues of the examination of the case under the judicial consideration.

Summary:

On the basis of an appeal lodged by the President of the Republic, the Constitutional Court considered the conformity of the provision set forth in the second sentence of Article 7.2.1 of the Law on "Human Rights' Defender" with the Constitution.

The applicant claimed that the second sentence of Article 7.2.1 of the Law on "Human Rights' Defender", which stated: "...S/he may request information on any case that is at the stage of trial and submit recommendations to a court, so as to guarantee the right of citizens to a fair trial as enshrined in the Constitution of Armenia and norms of International Law" contradicted  Articles 39 and  97.1 of the Constitution, as it violated the principles of independence of the court and equality as between the parties to the case. The applicant mentioned that analysis of the law-enforcement practice indicated that the term "information" was interpreted in a broader sense during the practical application of the provision in dispute.

The respondent stated that the Law on "Human Rights Defender", in determining the issue of receiving information, was in compliance with the norms of the Constitution, norms of International Law, and with a number of laws of foreign states. The respondent noted that the issue in dispute had been raised generally, based on several incidents where letters were presented by the Defender and her Deputy to the courts of first instance. The respondent also assumed that, though the law-enforcement practice might not be constitutional, the disputed provision of the Law could not be considered as being contrary to the Constitution.

The Constitutional Court stated that Article 97 of the Constitution enshrining the constitutional principle of judicial independence stipulated that, when administering justice, judges should be independent and may only be subject to the law. Article 39 of the Constitution provided for the right of everyone to a fair trial by an independent and impartial court.

The Court also mentioned that under Article 5 of the Law on "the Status of the Judge", when administering justice, the judge was not accountable to any State body or official. Article 6 of the same Law prohibited any intervention in the activities of a judge by any State body, self-government bodies and their officials, political parties, non-governmental organisations and the mass media.

According to the Court, the international constitutional judicial practice on the disputed issue indicated that "the independent judicial system is protected constitutionally from any external intervention; therefore prescribing any authority for the Ombudsman to review the courts is not compatible with the principles of separation of powers and independence of the courts."

The Court also emphasised that equality as between the parties to the case was one of the elements of the right to fair trial, guaranteed by Article 39 of the Constitution and Article 6 ECHR. These principles had been set down in criminal procedural and civil procedural legislation of the Republic of Armenia.

The Constitutional Court certified that according to the applicant and respondent, the existing contradictions between the disputed legislative provision and Articles 10.1 and 12.1.5 of the Law gave rise not only to various interpretations of the competence of the Defender, but also they did not predetermine the content of term "information" used in the disputed legislative provision. However, the comparative analysis of the disputed provision and Articles 10.1 and 12.1.5 made it possible to clarify the content of the term and, consequently also the scope of competence of the Defender to request information from the courts.

The Court found that the disputed provisions of the Law had the effect of making it impossible for the Defender to request information from the court regarding the administration of justice in a concrete case and which related to procedural and material issues of a judicial proceeding.

The Court mentioned that the violation of the procedural or material rights by the judicial bodies could be eliminated only by the Court of Appeal and Court of Cassation on the basis of appeals. The Court emphasised that according to the civil and criminal procedural legislation, the Defender was not entitled to bring appeals to the afore-mentioned Courts. Hence, if the actions of the Defender, set forth in the Law on "The Human Rights' Defender" and aimed at the restoration of the alleged violated rights of a person, were either refused by the court or were not taken into account, the Defender would not be competent to appeal the 'refusal' or the 'not taking into account' to the superior judicial instance.

The Constitutional Court stated that according to Article 67 of the Law on "The Constitutional Court'' a decision should be adopted based both on the literal meaning of the Law and existing juridical practice. The Constitutional Court, proceeding from the practice formed as the result of implementation of the disputed provision in the Republic of Armenia, found that such applications of the Defender and her Deputy were directed to judges and the information requested by them, and submitted recommendations were not conditioned by the necessity of administration of the independent and impartial justice; they were interfering with the judicial proceedings and could create unequal conditions for the parties.

The Court stated that this practice, which exists in the relevant legislation of the European Countries, had also been fixed in the Statute of the European Ombudsman. The latter prohibited the European Ombudsman from interfering in cases under examination in the courts or the subject matters of the decision of court.

On the basis of evaluation of the literal sense of the disputed provision of the Law and the formed practice of law-enforcement, as well as taking into account international practice, the Constitutional Court considered that:

a. no due diligence appeared to have been done during the development of the concept of the Law on "The Human Rights' Defender", as a result of which an inter-legislative contradictions had arisen, thus establishing also a contradictive practice of law-enforcement;

b. the disputed provision of the Law concerning the request by the Defender for information from the courts, might affect the independence of judicial bodies or threaten the independence of a judge, if during the implementation of that function, the term ''information'' was interpreted widely and became separated from the general logic of the Law;

c. the disputed provision of the Law concerning the submission of recommendations to the courts by the Defender, might affect the independence of judicial bodies, because it might prevent the implementation of practical possibilities to adopt decisions by the judge and the court only on the basis of evaluation of the facts and circumstances of case and their own understanding of Law.

Based on the outcome of the investigation of the case, the Constitutional Court decided:

1. The provision, stipulated by the second sentence of Article 7.2.1 of the Law "On the Human Rights Defender" with such wording concerning the right of the Defender to request information from courts and submit recommendations to the courts, had not come about through necessity to administer independent and impartial justice, and it created inter-legislative contradiction. Also taking into account the practice of law-enforcement, this provision interfered with the functions of the judiciary and was not in conformity with the provisions of  Articles 39 and  97.1 of the Constitution.

2. The right of the Defender to request information from courts in connection with ensuring the application of the provisions of Articles 10.1, 12.5.1 and 17.1 of the Law should be satisfied, if it was not an interference with judicial proceedings, it did not concern the administration of justice by a concrete case, it did not concern the material and procedural issues of examination of the case under the judicial consideration.

The right of the Defender to request information from courts in connection with ensuring the application of provisions of Articles 10.1, 12.5.1 and 17.1 of the Law, should be clearly enshrined in the Law on "The Human Rights Defender" in order not to cause contradictive practices of law-enforcement.

Languages:

Armenian.