ARM-2008-1-005
a) Armenia / b) Constitutional Court / c) / d) 15-04-2008 / e) DCC-751 / f) On the conformity with the Constitution of Article 68.10.2 and 68.12 of the Law on Constitutional Court / g) to be published in Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
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Constitutional Justice - Types of claim - Claim by a private body or individual - Natural person. |
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Constitutional Justice - Procedure - Time-limits for instituting proceedings. |
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Constitutional Justice - Effects - Temporal effect - Ex nunc effect. |
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Constitutional Justice - Effects - Consequences for other cases. |
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Fundamental Rights - Equality - Scope of application. |
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Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy. |
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Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts. |
Keywords of the alphabetical index:
Constitutional Court, access, individual
Headnotes:
The Constitutional Court emphasised the necessity of effective implementation of the right to constitutional justice in order to protect one's constitutional right through applying to the Constitutional Court. The realisation of this right should not depend on any circumstance beyond the will of the interested person. Consequently, each person must have the opportunity to enjoy the legal protection provided by the Constitutional Court.
Summary:
I. The applicants disputed the conformity of Article 68.10.2 and 68.12 of the Law on the Constitutional Court with the provisions of Articles 3, 6, 18 and 19 of the Constitution. Under Article 68.10 of the Law, administrative and judicial acts adopted and implemented prior to a decision by the Constitutional Court recognising an act fully or partially in contravention of the Constitution and null and void, on which the administrative or judicial act is based, are not subject to re-examination.
Article 68.12 provides an exception to the above provision. It allows the Constitutional Court to extend the influence of its decision over legal relations that started before the decision came into force, if the absence of a decision on extension would cause irretrievable consequences for the state or the public. It allows for re-examination of administrative and judicial acts that were adopted and implemented on the basis of acts that were found unconstitutional by the Constitutional Court's decision within three years of the entry into force of the Constitutional Court decision.
Article 68.13 provides another exception to the general rule of Article 68.10, in that a decision by the Constitutional Court that a provision of the criminal code or legislation on administrative liability is invalid will have retrospective effect. Judicial and administrative acts adopted prior to the Constitutional Court's decision are subject to re-examination on the basis of that decision.
II. The Constitutional Court explained as follows the logic behind the general rule stipulated in the disputed provision and for the exceptions outlined above. Decisions by the Constitutional Court will only have retrospective effect where this is necessary for the protection of essential interests. Whenever, its decision is to have retrospective effect, the Court must adopt a grounded and reasoned decision, taking into account the necessity for protection of essential interests. The disputed provisions were considered to be in conformity with the Constitution.
The Court went on to examine the constitutionality of Article 69.12, which is linked systematically with the disputed provisions. This provision stipulates that if, following an individual complaint, the Constitutional Court recognises the disputed provision of law as in contravention of the Constitution and invalid, the final judicial act directed towards the applicant is subject to re-examination in the manner prescribed by law.
Analysis of the law enforcement practice of the above provision showed that courts only re-examine judicial acts adopted towards persons whose individual complaints have served as grounds for the Constitutional Court to adopt a decision recognising a particular legal provision as in breach of the Constitution and invalid. This practice has created a state of affairs whereby persons are deprived of the possibility of implementing judicial protection of their constitutional rights through appealing to the Constitutional Court, even though the six month deadline for Constitutional Court applications has not expired. The Constitutional Court stated that Article 101.6 of the Constitution ensures the right of citizens to appeal to the Constitutional Court. The legislation stipulates a six-month period, but it means that the application to the Constitutional Court by one person for protection of his or her rights prevents another person from realising his or her constitutional right to appeal to the Constitutional Court. Thus, the realisation of the right of a person is hindered by the realisation of the rights of another. This brings about an unequal situation.
The Constitutional Court emphasised the necessity of effective implementation of the right to constitutional justice in order to protect one's constitutional right through applying to the Constitutional Court. The realisation of this right should not depend on any circumstance beyond the will of the interested person. Consequently, each person must have the opportunity to enjoy the legal protection provided by the Constitutional Court. within the six month term. Such an opportunity can only be guaranteed in cases where the six-month period is not exceeded.
The Constitutional Court stated that the legislator must also implicitly stipulate the legislative requirement for the re-examination of judicial acts of persons who have not appeared as parties to the Constitutional Court proceedings, but were deprived from the possibility of the consideration of their cases in the Constitutional Court because of Article 32.3 or 32.5 of the Law on the Constitutional Court. Under these provisions, the Constitutional Court will reject the examination of an application, if there is a Constitutional Court's decision on the same issue, or proceedings arising from the same issue are under way at the Constitutional Court). Otherwise, the right to appeal to the Constitutional Court, and the right to legal protection through the Constitutional Court will become unrealistic and illusory, if they cannot practically be implemented.
The Constitutional Court pronounced Article 69.12 of the Law on the Constitutional Court to be in breach of Article 19 of the Constitution. It pronounced part of the provision void, in that persons are deprived of the possibility of implementing judicial protection of their constitutional rights through appealing to the Constitutional Court, even though the six-month deadline for Constitutional Court applications has not expired.
Armenian.