CODICES

 

ARM-2007-2-005

 

a) Armenia / b) Constitutional Court / c)  / d) 24-07-2007 / e) DCC-710 / f) On the compliance of paragraph 2 of Article 311 and paragraphs 1 and 3 of the first part of Article 414.2 of the Code of Criminal Procedure with the Constitution of the Republic of Armenia / g) Tegekagir (Official Gazette) / h) .

Keywords of the Systematic Thesaurus:

5.3.13.2

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

5.3.13.13

Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Trial/decision within reasonable time.

5.3.13.14

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

5.3.13.15

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

5.3.13.19

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

5.3.13.20

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

5.3.13.22

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

Keywords of the alphabetical index:

Hearing, adversarial / Criminal http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/arm/arm-2007-2-005?f=images$fn=doc-hit-on.gif$3.0procedurehttp://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/arm/arm-2007-2-005?f=images$fn=doc-hit-off.gif$3.0, additional preliminary investigation, referral.

Headnotes:

When a court refers a case for additional preliminary investigation, it goes beyond the boundaries of its impartial role and directs the course of the preliminary investigation. Such a function is not compatible with that of the administration of justice.

The realisation of the requirement to interpret the remaining suspicions in favour of the defendant and the court's referral of the case for additional preliminary investigation are factually incompatible.

Summary:

I. Acting on an individual complaint, the Constitutional Court assessed the compliance of the provisions of Article 311.2 and paragraphs 1 and 3 of the first part of Article 414.2 of the Code of Criminal Procedure with the Armenian Constitution.

The Applicant argued that this provision did not comply with certain constitutional articles, including Article 18.2 of the Constitution (right to legal remedy), Article 19.1 of the Constitution (right to judicial protection) and Article 20 of the Constitution (right to review the judgment). It provides that courts may refer cases for additional preliminary investigation, upon the motion of the prosecutor, if there are grounds that strengthen the prosecution's case or factual circumstances that differ from those in the original prosecution case become known.

The applicant pointed out that the principle of adversarial proceedings, enshrined in Article 19 of the Constitution, requires the separation of the criminal prosecution, the conduct of the defence and the resolution of the matter. Different people must carry out these roles. The Court cannot act on the side of the prosecution or the defence. If the Court refers a case for additional preliminary investigation and gives indications to the body of preliminary investigation for the implementation of additional investigative measures, it is carrying out the role of the prosecution. This is contrary to the requirements of Article 19.1 of the Constitution. Moreover, in referring the case for extra investigation, the Court gives the prosecutor the opportunity of extending the period of preliminary investigation and measures of suppression. In such a situation, there will be a question mark over the innocence of the accused, and this is contrary to Article 21 of the Constitution (the principle of presumption of innocence).

II. In his application, the applicant only challenged one article of the Code of Criminal Procedure (Article 311.2 of the Code of Criminal Procedure). Nonetheless, on the basis of Article 68.9 of the Law on Constitutional Court, the Constitutional Court deemed it necessary to assess the constitutional compliance of other provisions of numerous articles of the Code of Criminal Procedure. All of them dealt with the referral of cases by courts for additional preliminary investigation and were closely linked to the challenged provision. The articles in question were Articles 292.5, 297, 363.2, 394.5, 398.6.2, 419 and 421.3.

The Constitutional Court observed that Article 19 of the Constitution requires, inter alia, the implementation of trial on the basis of equality of arms and by an impartial court. When a court refers the case for additional preliminary investigation, it goes beyond the boundaries of its impartial role and directs the course of the preliminary investigation, thus implementing a function not compatible with that of the administration of justice. The Court also violates the equality between the parties in favour of the prosecution, thus violating the parties' rights to effective legal remedy and judicial protection. The Court also runs the risk of infringing other elements of the right to fair trial, namely the requirement to arrange a trial within a reasonable period.

One of the elements of the principle of presumption of innocence enshrined in Article 21 of the Constitution is the requirement to interpret the remaining suspicions in favour of the defendant. The realisation of this requirement and referral by the Court of the case for extra preliminary investigation are factually incompatible. Where the case is referred, the above requirement is breached.

The Constitutional Court pronounced the referral by the Court of a case for extra preliminary investigation to be incompatible with those elements of the right to fair trial guaranteed by Article 6 ECHR, namely trial by an impartial court, the adversarial principle and equality of arms. The procedure set out in the criminal procedural legislation for referral was also pronounced to be out of line with judicial reforms resulting from constitutional amendments: these reforms were directed at the guarantee of the independence and impartiality of courts and to avoiding propensities towards the prosecution by courts.

The Constitutional Court held the challenged provision and the above-mentioned provisions (which were closely linked to the challenged provision) inconsistent with the Constitution and invalid.

A challenge had also been mounted in respect of paragraphs 1 and 3 of the first part of Article 414.2 of the Code of Criminal Procedure. The Constitutional Court dismissed the case, as a Decision CCD-691 on the issue of constitutionality of this provision was available.

Languages:

Armenian.