CODICES

ARM-1999-3-003

a) Armenia / b) Constitutional Court / c)  / d) 16-10-1999 / e) DCC-179 / f) On the conformity with the Constitution of Article 3.2 of the Law on Local Self-Government, Articles 2.1 of the Electoral Code of the Republic of Armenia and Article 18.8 of the Law on Refugees / g) Tegekagir (Official Gazette) / h) .

 

Keywords of the Systematic Thesaurus:

 
 
2.1.1.4

Sources of Constitutional Law - Categories - Written rules - International instruments.

3.3

General Principles - Democracy.

4.8.3

Institutions - Federalism, regionalism and local self-government - Municipalities.

4.8.4.1

Institutions - Federalism, regionalism and local self-government - Basic principles - Autonomy.

4.9

Institutions - Elections and instruments of direct democracy.

4.9.5

Institutions - Elections and instruments of direct democracy - Eligibility.

4.10.8

Institutions - Public finances - State assets.

5.1.1.3.1

Fundamental Rights - General questions - Entitlement to rights - Foreigners - Refugees and applicants for refugee status.

5.3.28.1

Fundamental Rights - Civil and political rights - Right to participate in public affairs - Right to participate in political activity.

5.3.38.1

Fundamental Rights - Civil and political rights - Electoral rights - Right to vote.

5.3.38.2

Fundamental Rights - Civil and political rights - Electoral rights - Right to stand for election.


Keywords of the alphabetical index:

 

Municipality, legal personality.

 

Headnotes:

 

Refugees who are permanent residents in the Republic of Armenia cannot be deprived of the right to participate in local government elections.

 

Summary:

 

The petitioner considered that several provisions of the Electoral Code, the Law on Local Self-Government and the Law on Refugees contradicted the Constitution, as they deprived refugees of the right to participate in local government elections.

 

According to the challenged Article of the Law on Local Self-Government, "the bodies of local self-government are elected by the members of community. A member of a community is a citizen of the Republic who is a permanent resident of that community or has been included in the list of tax-payers for the last 3 years".

 

The challenged provision of Article 2 of the Electoral Code determines that "citizens of the Republic of Armenia who have attained the age of 18 years have the right to vote", and according to Article 122.1 "every citizen of the Republic of Armenia who has attained the age of 25 years, has been a resident of the given community for at least the last one year, and has the right to vote, can be elected as community head".

 

Article 18 of the Law on Refugees determines that "a refugee does not have electoral rights in the Republic of Armenia, cannot be a member of a political party, cannot be elected or assigned to positions restricted by the legislation of the Republic of Armenia".

 

The Constitutional Court held that the challenged provisions, which deprived refugees of the right to participate in local government elections, contradicted the Constitution.

 

The Constitution strictly demarcates the notions "local self-government" and "state government". According to [ENG-ARM-A-105] Article 105 of the Constitution, "Communities shall have local self-government", and according to Article 107, "The provinces shall be governed by the state government". Furthermore, [ENG-ARM-A-2] Article 2 of the Constitution provides that "the people exercise their power through free elections and referenda, as well as through state and local self-government bodies and public officials as provided by the Constitution". This formulation strictly demarcates the different functional and institutional systems of exercising power.

 

This approach has been developed in the new Civil Code. According to the Civil Code, the Republic of Armenia and communities have been recognised as separate, independent and equal subjects of civil law, as well as separate and independent subjects of property rights.

 

[ENG-ARM-A-105] Article 105 of the Constitution provides that "to manage the property of the community and to solve problems of local significance, local self-government bodies shall be elected for a period of three years". Furthermore, an analysis of the notion of "local self-government", as it is determined in Armenian legislation, reveals that local self-government consists of the right and ability to manage community property and solve problems of local significance. Thus if refugees, who live in Armenia for 10 years and comprise more than half of the electorate in 71 communities, do not participate in the formation of local self-government bodies based on democratic principles, it means that they are deprived of their right to dispose of, use and manage property, as well as of the right guaranteed by law to determine the future of community property.

 

The provisions concerning electoral rights are laid down in Articles 2, 3, 27, 44, 50, 51, 52, 53, 64 and 110 of the Constitution. The general approach of the Constitution with regard to this issue is: Article 2 provides for the people's right to exercise their power, including through local government elections. The Constitution, demarcating the notions of "local self-government" and "state government" (Articles 105, 107), grants citizens of the Republic of Armenia who have attained the age of eighteen years the right to participate in state government (Article 27). The Constitution does not make any restriction on the right of the permanent resident non-citizens of a given community to participate in the formation of local self-government bodies and the implementation of the self-government function. This article does not exclude the possibility of according an electoral right at local self-government level to persons with a particular status, who are legal permanent residents in Armenia.

 

Meanwhile [ENG-ARM-A-110] Article 110 of the Constitution provides that "the election procedure of local self-government bodies and their power shall be determined by the Constitution and laws". In giving the legislator the competence to determine the election procedure, the Constitution's general requirement is also that such competence must be exercised pursuant to the foundations of the constitutional order and the principles and norms of international law.

 

International practice also indicates that in many countries non-citizens have a right to vote and to be elected at local self-government level. Such an approach is also taken by the Treaty on European Union and the Convention on the Participation of Foreigners in Public Life at Local Level (ETS no. 144) of the Council of Europe of 5 February 1992.

 

Languages:

 

Armenian.