ON THE CASE CONCERNING THE DETERMINATION OF THE ISSUE REGARDING THE CONFORMITY OF THE PROVISION SET FORTH IN THE SECOND SENTENCE OF THE SECOND PARAGRAPH OF THE FIRST POINT OF ARTICLE 7 OF THE LAW OF THE REPUBLIC OF ARMENIA "ON HUMAN RIGHTS' DEFENDER", ADOPTED BY THE NATIONAL ASSEMBLY ON 21st OF OCTOBER 2003, WITH THE CONSTITUTION OF THE REPUBLIC OF ARMENIA

The Constitutional Court of RA comprising of the President of the Constitutional Court G. Harutyunyan, the Deputy President of the Constitutional Court V. Hovhannisyan (rapporteur), members of the Constitutional Court F. Tokhyan, Z. Ghukasyan, H. Nazaryan, R. Papayan, V. Poghosyan,

With the participation of:

the Minister of Justice of Republic of Armenia, the official representative of the President of the Republic of Armenia,

the Head of the Legal-State permanent commission R. Petrosyan, - the representative of the National Assembly of the Republic of Armenia appearing as respondent before the Court,

Invited person: L. Alaverdyan, The Human Rights' Defender of the Republic of Armenia,

Pursuant to the 1 point of Article 100 and the 1 point of Article 101 of the Constitution of the Republic of Armenia, to the 1 point of Article 5, the 1 point of Article 25 and Article 55 of the Law of the Republic of Armenia "On the Constitutional Court",

Considered in a public hearing the case concerning "The determination of the issue regarding the conformity of the provision set forth in the second sentence of the second paragraph of the 1 point of Article 7 of the Law of the RA "On Human Rights' Defender", adopted by the National Assembly on 21st of October 2003".

The case was initiated by the application of the President of the Republic of Armenia.

Having heard the report of the Deputy President of the Constitutional Court of the RA V. Hovhannisyan and rapporteur for this case, the explanations of the representative of the President of the Republic of Armenia D. Harutyunyan and the representative of the responding party R. Petrosyan, the clarifications of the Defender of the Republic of Armenia, examining the Law of the Republic of Armenia "On Human Rights' Defender" and the other documentation of the case, the Constitutional Court of the Republic of Armenia

FINDS:

1. The Law of the Republic of Armenia "On Human Rights' Defender" was adopted by the National Assembly of the Republic of Armenia on the 21^st of October 2003, was signed by the President of the Republic of Armenia on 15^th of November 2003 and entered into force from the 1^st of January 2004.

2. The applicant claims that the second sentence of the second paragraph of the 1 point of Article 7 of the Law of the Republic of Armenia "On Human Rights' Defender", which states: "…S/he may request information on any case that is on the stage of trial and submit recommendations to a court, as to guarantee the right of citizens to fair trial as enshrined in the Constitution of the RA and norms of International Law" contradicts with Articles 39 and 97(1) of the Constitution of the RA, as it violates the principle of independence of a court and the principle of equality of arms of the parties to the case.

The applicant, by analyzing the power of the Defender to request information from the courts and to submit recommendations to the courts, concludes that, though the term "information" is not clarified in the disputed provision, anyway it should be interpreted by taking into account the general logic of the Law. According to the applicant, the general context of the Law makes clear the exact borders of the term "information" and also shows the main purpose of usage of the term. According to the logic of the Law, the Defender should have the right to request such information from the courts, which will enable her/him to find out for example, whether, a trial concerning a compliant presented to him/her, is in the process or whether the judicial decision has entered into legal force. Still, the analysis of the law enforcement practice indicates that the term "information" is interpreted in a broader sense during the practical application of the disputed provision.

The applicant finds that, by submission of recommendations to the court during the administration of justice, breaches the principle of independence of a court, as the Defender, acting as a State body, directly influences on the court by its recommendation and, consequently, can predetermine the appraisals of the court. The applicant also inserts that, submission to the court recommendations based solely on the pleadings of one party to the trial, the Defender breaches the equality of arms of the parties to the trial: from the viewpoint of guaranteeing the principle of adversary proceeding.

As a basis for its conclusion, the applicant presents the copies of letters of the Defender and her Deputy to the Constitutional Court, by which the latter requested certain information from the courts and submitted their recommendations to the courts. The applicant also introduces document relating to legislative practice on the correlation between the institute of the Human Rights Defender and the courts in foreign countries to the Court attention.

3. The respondent, by bringing some examples from the national legislation of foreign states and citing the norms of International Law stated that the Law on Human Rights Defender, in determination of the issue of receiving information, is not in contradiction; moreover, it is in compliance with the norms of International Law, and with a number of laws of foreign states. The respondent also mentioned: after the examining of the documents attached to the application of the President of the RA is becoming clear that the disputed issue has been raised generally based on several incidents of presented the letters by the Defender and her Deputy to the court of first instance. Though, it is clarified in those letters that the Defender does not intervene in the process of the settlement of the judicial case in merits, but the actual content of those letters indicates that though they are, in fact, directly intervening in the judicial proceedings, they contain directions regarding the change of the object of the trial, which, in accordance to our legislation can be done solely by the parties to the case. At the same time the respondent assumes that, though the law-enforcement practice is not constitutional, the disputed provision of the Law can not be considered as contradicting to the Constitution.

   In the respondent’s opinion, the considered Law contains some conceptual controversies, which should be solved not by discussing its constitutionality, but by legislative amendments.

4. Article 97 of the Constitution of the RA enshrines the constitutional principle of the independence of judges. Under the above mentioned Article, when administering justice, judges shall be independent and may only be subject to the law.

   Article 39 of the Constitution provides the right of everyone to a fair trial by an independent and impartial court.

   The above mentioned constitutional principle has been enshrined in the following Laws: in the Articles 5 and 6 of the Law of the RA "On the Status of the Judge", adopted by the National Assembly on 17^th of June 1998, in Article 2 of the Law of the RA "On the Judiciary" adopted by the National Assembly on the 18^th of June 1998, in Article 40 of the Criminal Procedural Code of the RA, adopted on the 1^st of July 1998, by the National Assembly.

   Under Article 5 of the Law of the RA "On the Status of the Judge", when administering justice, the judge is not accountable before any State body or official. Article 6 of the same Law prohibits any intervention in the activities of a judge by any State body, self-government bodies and their officials, the political parties, non-governmental organizations and means of mass media.

5. International-legal instruments prescribe the principle of independence of judges also. For example, in the UN Basic Principles on Independence of Judiciary of 1985. Under this document: "… It is the duty of the governmental and other institutions to respect and observe the independence of judiciary."

   The same principle is enshrined in the Recommendation (94) # 12 on The Independence, efficiency and role of judges, adopted by the Committee of Ministers of Council of Europe on 13^th of October 1994. Under the 1^st principle (2)(d) of the recommendation: "Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts and the pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary."

   According to the Case-law of the European Court of Human Rights, one of the elements of the independence of the judge, inter alia, is the existence of the guarantees excluding the external influence on the judges.

   The international constitutional judicial practice on the disputed issue indicates that "the independent judicial system is protected constitutionally from any external intervention, therefore prescribing any authority for the Ombudsman to review the courts is not compatible with the principles of separation of powers and independence of the courts."

   Similar viewpoint has been expressed in the decision of the Constitutional Court of Hungary from 29.03.1994.

6. The equality of arms of the parties to the case is one of the elements of the right to fair trial, guaranteed by Article 39 of the Constitution of the RA and Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. These principles have been prescribed in criminal procedural and civil procedural legislation of the RA.

   According to the paragraph 33 of the Judgment of the European Court of Human Rights on the case of Dombo Beheer v. The Netherlands, from September 22, 1993: "the equality of arms" implies, that each party must be afforded with the reasonable opportunity to presenting his case - including the evidence - under conditions, that d not place him at a substantial disadvantage vis-à-vis his opponent.

7. For the sake of the rule of law and democratic state the role of the institute of the Human Rights Defender in guaranteeing the supremacy of law and in protecting the human rights and fundamental freedoms violated by State and local self-government bodies or their officials is crucial. This principle is enshrined also in Article 2 of the Law of the RA "On the Human Rights Defender".

8. The Constitutional Court certifies that according to the applicant and respondent, the existing contradictions between the disputed legislative provision and the point 1of Article 10 and the sub-point 5 of the 1 point of Article 12 of the Law give rise not only to various interpretation of the competence of the Defender, but also they are not predetermine the content of term ''information'' used in the disputed legislative provision. However, the juxtaposed analysis of the disputed provision and the point 1 of Article 10 and the sub-point 5 of the point 1 of Article 12 makes possible to clarify the content of the term and, consequently, also the scope of competence of the Defender to request information from the courts.

According to the point 1 of Article 10 of the Law of the Republic of Armenia "On the Human Rights Defender", "the Defender shall not consider those complaints that must be settled only in a judicial manner. Likewise, the Defender shall discontinue consideration of a complaint if after commencing the process of consideration the interested person files a claim or an appeal with the court".

In the context of the point 1 of Article 10, the Defender is entitled to request information from the court on those complaints directed to him which are settled in extra-judicial manner, if no claim or appeal has been brought to the court by the person concerned on the subject matter of the compliant.

According to the sub-point 5 of the point 1 of Article 12 of the Law, "after adoption of a decision on accepting a complaint for consideration, the Defender shall be authorized to the following for examination of the issues raised in the complaint: …to familiarize with those criminal, civil, administrative, disciplinary, economic cases and cases concerning of other breaches of law, on which the respective court's verdicts, judgments and decisions have entered into legal force, as well as materials related to such cases on which the initiation of proceedings have been rejected".

The disputable provisions enshrined in Article 7 of the Law may only serve as mean for realization of requirements set forth in Article 10(1), of Article 12(1)(5) and of Article 17(1). The Law practically excludes the possibility for the Defender to request information from the court regarding the administration of justice in a concrete case and which relates to procedural and material issues of a judicial proceeding.

9. The right of the Defender to submit recommendations to the courts and request information from the courts should also be evaluated within the context of the role and functions of this institute. In accordance with Article 2 of the Law of the RA "On the Human Rights' Defender: "The Human Rights' Defender is an official, who, acting pursuant to the Constitution and the laws of the Republic of Armenia, as well as principles and norms of International Law, protects the human rights and fundamental freedoms violated by State and local self-government bodies or their officials".

   Unlike the administrative bodies, the violation of the procedural or material rights of the person by the judicial bodies may be eliminated only by the Court of Appeal and Court of Cassation accordingly on the basis of appeals (both for the Court of Appeal and Cassation Court). According to the legislation of the Republic of Armenia appeals can be brought to the Court of Appeal and Court of Cassation only by those persons, who have participated in the proceedings.

   According to the civil and criminal procedural legislation of the RA, the Defender is not entitled to bring appeals to the Court of Appeal and to the Cassation Court. Hence, if the actions of the Defender, set forth in the second sentence of the second paragraph of the 1 point of Article 7 of the Law of the Republic of Armenia "On the Human Rights' Defender" and aimed to the restoration of the alleged violated rights of the person are either refused by the court or are not taken into account, the Defender is not competent to appeal the ‘refuse’ or ‘not taking into account’ to the superior judicial instance.

10. According to Article 67 of the Law of the RA "On the Constitutional Court’’, with regard to issues determined by points 1 and 2 of Article 100 of the Constitution, a decision shall be adopted based both on the literal meaning of the Law and existing juridical practice.

    The study of the existing materials relating to the activity of the institute of the Defender indicates that the Defender, for instance in his letter #1-0562 addressed to the judge of the Court of 1^st instance of Kentron and Nork Marash Communities of Yerevan, wrote that according to existing information, the witness on criminal case appeared before the court session, witnessed and asked to recognize him as a victim. On this issue the Defender requests to inform the position of the court regarding the recognition of the witness as a victim.

    And in his letter number 1-584 from 21.01.2005, addressed to the Chairman of the 1^st Instance Court of the Achapniak and Davitashen Communities of Yerevan, the Defender presented his estimation on the case under consideration of the court.

11. The Constitutional Court, proceeding from the practice formed in the result of implementation of the disputed provision in the Republic of Armenia finds that such applications of the Defender and her Deputy directed to judges and the information requested by them, and submitted recommendations are not conditioned by the necessity of administration of the independent and impartial justice; they are interfering into the judicial proceedings and can create unequal conditions for the proceeding parties.

12. The Constitutional Court, taking into account the results of the study of the practice of the implementation of the right of the Ombudsman to make recommendations and request information from the State bodies fixed in the legislation of most European Countries, records, that there are the following common approaches.

The Ombudsman shall not examine the circumstances of such cases, which are the subject of the judicial proceedings.

The laws regulating the activity of Ombudsman do not fix directly the right to make recommendations and request information from the courts on circumstances of the case under examination.

The laws that regulate the activity of Ombudsman and fix the right to request information from the state bodies, simultaneously clarify the limits of requesting information from the courts.

This practice,that exists in relevant legislation of the European Countries, has also been fixed in the Statute of the European Ombudsman. The latest prohibits the European Ombudsman to interfere in the cases under examination in the courts or the subject matters of the decision of court.

And Article 13 of the Law of Poland "On the Representative of Rights of citizens" determines, that the requesting information from the courts relates only to the information on "the status of the case."

13. On the basis of evaluation of literal sense of disputed provision of the Law and the formed practice of law enforcement, as well as taking into account the international practice, the Constitutional Court considers that:

a/ no due diligence was manifestned during the development of the concept of the Law of the RA "On the Human Rights' Defender", as a result of which an inter-legislative contradictions arise, thus establishing also contradictive practice of law enforcement. Particularly, it concerns Article 2, the provision specified in the first sentence of second paragraph of point 1 of Article 7, the point 1 of Article 10, the sub-points 3 and 5 of point 1 of Article 12, Articles 13 and 15, the point 1 of Article 17 of the mentioned Law, from the one side, the provision specified in the second sentence of the second paragraph of point 1 of Article 7, from the other side;

b/ the disputed provision of the Law concerning the request by the Defender of the information from the courts, may affect the independence of judicial bodies or threaten the independence of a judge, if during the implementation of that function, the term ''information'' interpreted widely and separated from the general logic of the Law;

c/ the disputed provision of the Law, concerning the submission of recommendations to the courts by the Defender, may affect the independence of judicial bodies, because it may prevent from the implementation of practical possibilities to adopt decisions by the judge and the court only on the basis of evaluation of facts and circumstances of case and the own understanding of Law.

Based on the outcome of the investigation of this case, in accordance with paragraph 1 of Article 100 and Article 102 of the Constitution of the Republic of Armenia, and in accordance with paragraph 1 of Article 5 and Articles 55, 67 and 68 of the Law of the Republic of Armenia "On the Constitutional Court," the Constitutional Court of the Republic of Armenia decides:

1. The provision, stipulated by the second sentence of the second paragraph of the point 1 of Article 7 of the Law of the Republic of Armenia "On the Human Rights Defender" with such a wording, concerning the right of the Defender to request information from courts and submit recommendations to the courts, is not caused by necessity to administer independent and impartial justice, and it creates an inter-legislative contradiction. Also taking into account the practice of the law enforcement, this provision is interference to the functions of judicial body and it is not in conformity with the provisions of Article 39 and the part 1 of Article 97 of the Constitution of the Republic of Armenia.

2. The right of the Defender to request information from courts in connection with ensuring the application of provisions of point 1 of Article 10, sub-point 5 of point 1 of Article 12 and the point 1 of Article 17 of the Law should be satisfied, if it is not an interference to the judicial proceedings, it does not concern the administration of justice by a concrete case, it does not concern the material and procedural issues of examination of case under the judicial consideration.

The right of the Defender to request information from courts in connection with ensuring the application of provisions of point 1 of Article 10, sub-point 5 of point 1 of Article 12, of point 1 of Article 17 of the Law, should be clearly enshrined in the Law of the RA "On the Human Rights Defender" in order not to cause contradictive practice of law enforcement.

3. According to the second part of the Article 102 of the Constitution of the Republic of Armenia this decision is final, is not subject to revision, enter into force on the date of publication.

6 May 2005
CCD-563