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On the basis of an appeal
lodged by the President of the Republic, the Constitutional Court considered
the conformity with the Constitution of the obligations stated in the
Rome Statute of International Criminal Court.
The Constitution of the Republic of Armenia in its preamble confirms the
Armenian nation's faithfulness to universal values. Article 4 of the Constitution
provides for the State's obligation to ensure human rights and freedoms'
protection in accordance with principles and norms of international law.
The mentioned provisions of the Constitution of the RA establish legal
opportunities for involvement in protection of such universal values,
as peace, security and well-being. The latter are the values, to the protection
of which the idea of the establishment of the permanent International
criminal court is directed.
The Statute provides for such principles of relationship between the states
and the Court, which are directed to the harmonization of the state's
obligation to recognize the Court's jurisdiction with the principle of
state's sovereignty. This issue is solved particularly in Article 12 of
the Statute, according to which the Court may exercise its jurisdiction,
if the state on the territory of which the conduct in question occurred,
or the state of which the person accused of the crime is a national, is
a party to the Statute. The issue of harmonization of the state's obligation
to recognize the Court's jurisdiction with the principle of state's sovereignty
is solved also due to the main principle, which is the basis of the Court's
jurisdiction, namely the Court, exercising its jurisdiction over persons
for the most serious crimes provided by the Statute, is complementary
to the national criminal jurisdiction. This principle particularly is
revealed in Article 17 of the Statute, according to which the Court is
entitled to administrate justice over the crime provided by the Statute
if a state, which has jurisdiction over it, is unwilling or unable genuinely
to carry out the investigation or prosecution. In the same time Article
17 precisely determines the factors, which are objective basis for assessing
the lack of the will of a state, as well as the existence of inability
to carry out investigation or prosecution. Besides, Article 19 of the
Statute makes an opportunity for the state having jurisdiction over the
given case to challenge the jurisdiction of the Court and the admissibility
of the case on the ground, that the state is investigating or prosecuting
the case.
An other issue concerning the relationship between the state's sovereignty
and the Court's jurisdiction relates to Article 54, paragraph 2, Article
57, paragraph 3/d/ and Article 99, paragraph 4 of the Statute. Articles
54, 57 and 99, giving rather wide powers to the Prosecutor, in the same
time provide for certain guarantees, which take into account the state's
sovereignty and prevent the abuse by the Prosecutor of his powers. Particularly,
the Prosecutor may directly take specific investigative steps within the
territory of a State Party on the authorization of the Pre-Trial Chamber.
The latter, giving such authorization, whenever possible takes into consideration
the views of the State concerned. The Pre-Trial Chamber may give such
an authorization to the Prosecutor only if it has determined in that case
that the State is clearly unable to execute a request for taking some
investigative steps due to unavailability of any authority or any component
of its judicial system competent to execute the request. The Prosecutor
may take such investigative steps within the territory of the State Party,
without the presence of authorities of that state, which can be executed
without any compulsory measures and if it is essential for the execution
of the investigative steps. Besides, specific investigative steps can
be taken only following all possible consultations with the State Party
concerned. Thus, it may concluded, that Article 54, paragraph 2, Article
57, paragraph 3/d/ and Article 99, paragraph 4 of the Statute derive from
the complementary principle laid down on the basis of the Court's operation
and cannot cause a danger for the sovereignty of the State Party.
The Constitutional Court identified the
following areas of non-compliance of obligations assumed by the Statute
with the Constitution of the RA.
Firstly, the provision concerning the complementary
to national criminal jurisdiction, provided by part 10 of the Preamble
and Article 1 of the Statute, don't derive from norms of Articles 91 and
92 of the Constitution of the RA. According to Article 91 of the Constitution
of the RA, in the Republic of Armenia justice shall be administered solely
by the courts in accordance with the Constitution and the laws. According
to Article 92 of the Constitution, the courts of general jurisdiction,
including criminal jurisdiction, in the Republic of Armenia shall be the
courts of first instance, the appellate courts and the court of cassation.
Chapter 9 of the Constitution of the RA,
which includes provisions on the judiciary, precisely determining the
system of the judiciary of the Republic of Armenia, does not provide any
provision, which should make an opportunity to complement through an international
treaty the system of judicial bodies exercising criminal jurisdiction
with an international judicial body of criminal jurisdiction.
According to Article 105 of the Statute, the Court's sentence of imprisonment
shall be binding on the States Parties, which shall in no case modify
it. This provision presumes, that the persons, who are under the general
jurisdiction of the Republic of Armenia, in case of conviction by the
Court for the crimes provided by the Statute, may not enjoy the right
to ask for pardon, as well as the opportunity of release from serving
of sentence or reduction of term of sentence through an application of
amnesty and accordingly the President of the Republic can not realize
his right to grant pardon and the National Assembly - its right to declare
an amnesty in regard to these persons.
If the criminal jurisdiction over persons
committed crimes provided by the Statute is exercised by the national
courts of the RA, the persons who have been sentenced to imprisonment
by the latter, may enjoy the opportunity to ask for pardon and to release
from serving of sentence or reduction of term of sentence through an application
of amnesty. While, the persons, who are under the general jurisdiction
of the Republic of Armenia, convicted by the Court for the same crimes,
are deprived of the right to ask for pardon and opportunity of amnesty.
The Republic of Armenia, due to its obligation of protection of human
rights and freedoms assumed under Article 4 of the Constitution, cannot
assume such obligations of human rights' restriction, not provided by
the Constitution, which will create less favorable situation for persons
under the jurisdiction of the RA, in the context of guaranteeing of human
rights and freedoms.
The Constitutional Court considers, that
such an amendment to the Constitution of the RA is possible, which will
recognize the obligations provided by the Statute of International criminal
court or the jurisdiction of that Court as a body complementing the system
of national courts.. |
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