ARM-2008-3-008
a) Armenia / b) Constitutional Court / c) / d) 09-09-2008 / e) DCC-758 / f) On the conformity with the Constitution of Article 80.1, 80.4 and 80.5 of the Law on Amendments to the Civil Procedural Code / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
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Sources - Categories - Written rules - International instruments - European Convention on Human Rights of 1950. |
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Sources - Categories - Case-law - International case-law - European Court of Human Rights. |
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Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial. |
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Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Scope - Civil proceedings. |
Keywords of the alphabetical index:
Judgment, revision / Obligation, international, state / Restitutio in integrum.
Headnotes:
The system for the review of judicial acts can only proceed effectively if the opportunity is provided to review judicial acts from courts of all instances where new circumstances have arisen; provisions whereby only the court of first instance that initiated the judicial act can review it would constitute a considerable hindrance to such progress.
Summary:
The Constitutional Court examined a case arising from an individual application, relating to the constitutional compliance of various norms of the Civil Procedural Code regulating the review of judicial acts where new circumstances have arisen. These norms stipulated that only judicial acts by first instance courts could be subject to review on the basis of new circumstances. Thus, where the Constitutional Court or international courts have pronounced an applied legal norm unconstitutional, only the court of first instance that initiated the judicial act in question is entitled to review it. Judicial acts by the Court of Appeal and the Cassation Court are not subject to review.
The Constitutional Court noted for the record the practical possibility that the restoration of a violated right should exclusively require the review of judicial acts made by the Appeal or Cassation Courts, on the basis that norms found to be contrary to the Constitution could be implemented by those courts. v In this context, the Constitutional Court examined Article 101.6 of the Constitution (governing an individual's right to appeal to the Constitutional Court). The above paragraph allowed for the possibility of a challenge, in the course of an individual application, of the legal provision applied by the final judicial act. There were certain cases where judicial acts made by courts of different instances (such as first instance courts, the Appeal Court or the Cassation Court) could constitute final judicial acts. More commonly, the Cassation Court's decision is the final judicial act.
The Constitutional Court stressed that under Article 101.6, the criterion for the admissibility of the individual application is that the disputed provision should be applied by the final judicial act. However, the provision applied by the final judicial act does not necessarily have to be applied by the court of first instance or the Court of Appeal: the application of the legal provision by the final judicial act will suffice for a challenge to the provision in the Constitutional Court. Accordingly, under Article 101.6, it is possible to challenge legal provisions in the Constitutional Court that have been applied by a final judicial act by the Appeal Court or the Court of Cassation, but which have not been applied by the first instance court. Where this is the case, and legal provisions are to be pronounced in contravention of the Constitution and null and void by the Constitutional Court, the review of the judicial act made by the court of first instance based on the Constitutional Court's corresponding decision becomes pointless and does nothing to assist the making good of the individual's violated right. Restoring the individual's violated right on the basis of the Constitutional Court's decision only requires that the final judicial act be reviewed.
In its decision, the Constitutional Court touched on the problems the disputed provisions could cause in terms of executing judgments of the European Court at a domestic level. Regarding the obligation to execute European Court's judgments under Article 46 ECHR, the Constitutional Court noted that, in order to execute these judgments, High Contracting States, including the Republic of Armenia, should, inter alia, take individual measures in favour of the applicant. The aim is to put an end to continuing violations and, as far as possible, erase their consequences (restitutio in integrum). Individual measures, as a rule, entail the revision of domestic judicial acts on the basis of European Court's judgments. The review of domestic judicial acts is of fundamental importance for the execution of the European Court's judgments, when the infringement of procedural norms during trial entails violations of rights. Violations of procedural norms can occur at any instance in the domestic court system, and in terms of executing judgments of the European Court, it is necessary to review the judicial act of the court that has violated the procedural norms.
The Constitutional Court found that the current legal regulations governing the review of domestic judicial acts on the basis of European Court judgments offer no opportunity for the restoration of the individual's violated right. They also hamper the Republic of Armenia in its execution of European Court's judgments, and pose problems in the meeting of its obligations under the European Convention on Human Rights.
The Constitutional Court referred in its decision to the consistent development within the practice of the European Court of what are known as "pilot judgments". In view of these current developments in European Court practice, and the need to provide opportunities for the restoration of the rights of individuals on the basis of European Court judgments at a domestic level, a clear definition of the review of judicial acts is needed in domestic legislation.
The Constitutional Court observed that the problem with the disputed norms is that they deprive individuals of the possibility of a complete restoration of their rights through the review of judicial acts on the basis of new circumstances. This threatens the legal security of the state and the stability of the civil order, increases the risk of corruption and prevents the Republic of Armenia from executing its duties in its capacity as Contracting Party to international treaties.
The Constitutional Court held the disputed norms to be in contravention of the Constitution.
Armenian.