IN THE NAME OF THE REPUBLIC OF ARMENIA

On the Case Regarding the Conformity of Article 17 of the "Law of the Republic of Armenia on the Elections of Local Self-Government Bodies" with the Constitution of the Republic of Armenia

Yerevan, 19 May, 1997

The Constitutional Court of the Republic of Armenia, chaired by the President of the Constitutional Court, G. Harutiunian, represented by the Deputy President of the Constitutional Court V. Stepanian, and Members of the Constitutional Court H. Khachatrian, V. Hovhannisian, H. Nazarian, V. Poghosian, V. Sahakian and M. Sevian,

With the participation of the representatives of the parties to the dispute, Members of the National Assembly of the RA, V. Darbinian, F. Kharatian, and V. Safarian, Chairman of the Standing Committee of the National Assembly on State and Legal Affairs E. Yegorian and Deputy Head of the Legal Services of the National Assembly A. Mkrtumian,

Pursuant to paragraph 1 of Article 100 and paragraph 2 of Article 101 of the Constitution of the Republic of Armenia, and to paragraph 1 of Article 5, paragraph 2 of Article 25 and Article 55 of the "Law of the Republic of Armenia on the Constitutional Court of the Republic of Armenia,"

Considered in a public hearing the case "On the conformity of Article 17 of the 'Lax of the Republic of Armenia on the Elections of Local Self-Soverning Bodies' with the Constitution of the Republic of Armenia."

The case was initiated by the petition of 65 members of the National Assembly filed with the Constitutional Court.

The Constitutional Court, based on its discussion in a session held on May 16, 1997, of the petition of 65 members of the National Assembly, adopted a procedural resolution to hear the case.

In accordance with Article 36 of the "Law of the Republic of Armenia on the Constitutional Court," H. Khachatrian and M. Sevian, Members of the Constitutional Court, were appointed rapporteurs to prepare the case for the Court's consideration and to present its circumstances.

Pursuant to Articles 39, 40 and 57 of the "Law of the Republic of Armenia on the Constitutional Court" and by the decision of the Constitutional Court, the National Assembly of the Republic of Armenia was identified as a party in the case, since it is the body responsible for the adoption of the legal act that is the subject of the dispute.

After hearing the report of H. Khachatrian, Member of the Constitutional Court and rapporteur for this case, studying and analyzing the petition and attached documents, as well as the explanations of the parties, clarifications by the Prosecutor-General and the Chairman of the Supreme Court and the additional arguments of the parties and other documents of the case, the Constitutional Court of the Republic of Armenia finds that:

1. The appellant considers that the court decision regarding the summarizing of the outcome of the second round of November 24, 1996 elections of the head of the Adjapnyak community of Yerevan has been, in a manner prescribed by the law, appealed to the Supreme Court pursuant to Article 17 of the "Law of the Republic of Armenia on the Elections of Local Self-Government Bodies," and the Board of the Supreme Court has adopted a final decision within the time limit prescribed by the law. Therefore, that decision could not have been appealed by the Prosecutor-General to the Presidium of the Supreme Court, which has repealed the decision adopted by its Board.

According to the appellant, the discrepant legal practices in similar cases regarding the implementation of Article 17 of the "Law of the Republic of Armenia on the Electiions of Local Self-Government Bodies" by the Prosecutor's office and the Supreme Court has produced the problem of deciding whether Article 17 of the mentioned law complies with the Constitution of the Republic of Armenia.

Admitting that this article is in conformity with the Constitution, the appellant considers that the Law excludes the possibility to appeal against the decision of the Board of the Supreme Court regarding the outcome of elections.

2. The party representing the National Assembly of the Republic of Armenia also considers that the provisions of Article 17 of the "Law of the Republic of Armenia on the Elections of Local Self-Government Bodies" are in conformity with the Constitution. It calims, at the same time, that the final character of a Board decision applies only to appealing, and the constitutional power of the Prosecutor's office to appeal, in exercise of its oversight function, against the already effective decisions, resolutions and verdicts of the court is not limited by Article 17 of the "Law of the Republic of Armenia on the Elections of Local self-government Bodies."

3. The legal practice of implementing Article 17 of the "Law of the Republic of Armenia on the Elections of Local self-government Bodies" witnesses that the Board comprising three members of the Supreme Court has considered from December 16, 1996 to May 12, 1997 appeals against 41 decisions and resolutions regarding the elections of local self-government bodies. Whether the decision of the Board of the Supreme Court was final or was subject to further appeal or complaint was announced by the chairperson of the session of the Board when the decision regarding each individual case was made public.

Of 41 decisions adopted in by the Board of the Supreme Court in reference to similar cases only the above-mentioned decisions of the Board regarding the outcome of the elections of the head of the Adjapniak community were appealed by the Prosecutor- General as an exercise of his judicial oversight function. Moreover, from December 16, 1996 to May 12 appeals against 11 court decisions regarding cases of similar nature have been filed with the Prosecutor-General's office. In two of these appeals the Prosecutor-General's office has replied that according to Article 17 of the "Law of the Republic of Armenia on the Elections of Local Self-Government Bodies" the decision of the board of the Supreme Court is final and is not subject to appeal under judicial oversight.

4. The Constitutional Court states that in the process of implementing Article 17 of the "Law of the Republic of Armenia on the Elections of Local Self-Government Bodies" the legal entities implementing it have applied diverse and discrepant approaches to the norms enshrined in the mentioned article and to Articles 5, 93, 103 and 110, paragraphs 7, 12, 13 of Article 116 of the Constitution as well as to the provisions of the Chapters 23, 34, 35 and 36 of the Civil Procedure Code that was adopted in 1964, and the respective provisions of which, regarding elections, have not changed.

Nor has been consistent the approach to the fact that the legislation on elections, adopted on the basis of the Constitution, regulates such state-legal relations which aim at the formation in due time of the elected institutions of the Republic's authorities, pursuant to Articles 2, 3, 27, 50, 51, 68, 105 and 110 of the Constitution of the Republic of Armenia.

The laws on the election of the President of the Republic of Armenia, the deputies of the National Assembly and local self-government bodies, adopted on the basis of the Constitution, proceed from a common logical ground and the decisions of the Constitutional Court regarding the two former cases and the decision of the Board of the Supreme Court regarding the latter case, are final.

The Prosecutor's office, before the adoption of the law on the Prosecutor's office, should, as it is enshrined in the Constitution, carry out its activities proceeding from the requirements of paragraph 12, Article 116 of the transitional provisions of the Constitution of the Republic of Armenia.

Based on the outcome of the investigation of this case, in accordance with paragraph 1 of Article 100, and Articles 101 and 102 of the Constitution of the Republic of Armenia, and in accordance with paragraph 1 of Article 5 and Articles 67 and 68 of the "Law of the Republic of Armenia on the Constitutional Court," the Constitutional Court of the Republic of Armenia decides: