ARM-2008-2-006
a) Armenia / b) Constitutional Court / c) / d) 13-05-2008 / e) DCC-753 / f) On the conformity with the Constitution of Article 53.2 of the Law on Television and Radio / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
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General Principles - Rule of law. |
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General Principles - Certainty of the law. |
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General Principles - Clarity and precision of legal provisions. |
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General Principles - Legality. |
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Institutions - Executive bodies - Application of laws - Delegated rule-making powers. |
Keywords of the alphabetical index:
Headnotes:
Certainty and clarity are vital components of the rule of law, and must be freely available. Parties to legal proceedings should be able to discern the legal norms that will apply to them. Legal norms cannot be described as "law" if they are insufficiently clear. Clarity can assist legal and natural persons to adjust their behaviour, in line with the law. They should be able to predict the consequences that may flow from their behaviour. The presence and absence of contradictions in various regulations is an essential factor in assessing the predictability of law.
Summary:
The applicant, Radio Haj Limited, expressed concern over provisions of the Law on Television and Radio, which obliged television and radio companies to pay annual over-the-air fees for using broadcasting frequencies. The calculation of the fee was based upon necessary expenses for serving the frequency. In its decision aimed at implementing the above norm, the Government had authorised the Ministry of Transport and Communication to calculate and approve the amount of the over-the-air fee for using broadcasting frequency.
The applicant suggested that the provision lacked clarity, and that it infringed Article 45 of the Constitution in that it did not stipulate an amount for the annual over-the-air fee for using broadcasting frequency, neither had it appointed a specific body to consider the amount of such an annual fee. Article 45 of the Constitution states that everybody must pay taxes, duty and other compulsory fees "in conformity with the procedure prescribed by the law".
In its deliberations on the above complaint, the Constitutional Court decided to examine the content of the notion "compulsory fee" specified in Article 45 of the Constitution, together with the content of the notion of "over-the-air fee" described in the disputed norm.
The Constitutional Court, having analysed the relevant tax legislation, stated that the compulsory fees described in Article 45 of the Constitution had "public law content", that is, they were established and paid within the scope of public relations with socio-legal content. It further observed that they are to be paid into the state or community budget.
It went on to describe the "over the air fee" as a goods usage charge to be exacted, which meant that the fee was an element of civil legal relations. The contract signed by the owner of radio frequencies, namely the state, and the user of radio frequencies constitutes the legal basis for exacting such fee.
As far as television and radio companies are concerned, procedures for establishing and exacting similar fees are regulated in such an indefinite manner that it is impossible to arrive at any accurate conclusion, either on the aims behind exacting such a fee or its content. This gives rise to a situation of uncertainty and unpredictability, in turn raising questions over the legality of exacting the fee, so that certain obligations provided form by the law might not be fulfilled.
Certainty and clarity are vital components of the rule of law, and must be freely available. Parties to legal proceedings should be able to discern the legal norms that will apply to them. Legal norms cannot be described as "law" if they are insufficiently clear. Clarity can assist legal and natural persons in adjusting their behaviour to "law". They should be able to predict the consequences that may flow from their behaviour. The presence and absence of contradictions in various regulations is an essential factor in assessing the predictability of law.
The Constitutional Court noted the various contradictions in the legal regulation of radio frequency usage, the uncertainty of the provision in dispute, and the implementation of the norm that stemmed from an incorrect interpretation of the norm due to that very uncertainty. It ruled that the norm did not allow economic organisations to deduce the aim of exacting over the air fees, the content of the fee and the legality of the duty to pay it. The norm was therefore incompatible with the requirements of the Constitution.
Armenian.