ARM-2008-3-010
a) Armenia / b) Constitutional Court / c) / d) 25-11-2008 / e) DCC-780 / f) On the conformity with the Constitution of several provisions of the Civil Code, Law on Taxes, and Articles 15 and 118 of the Administrative Procedural Code / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
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General Principles - Rule of law. |
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General Principles - Certainty of the law. |
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General Principles - Clarity and precision of legal provisions. |
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Institutions - Judicial bodies - Administrative courts. |
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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 - Access to courts. |
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Fundamental Rights - Economic, social and cultural rights - Commercial and industrial freedom. |
Keywords of the alphabetical index:
Freedom of enterprise / Administrative justice / Effective remedy.
Headnotes:
Under the Armenian Constitution, the universal right to freedom of enterprise (provided this is not prohibited by law), comprises all legal remedies creating preconditions for an individual to make his or her own decisions on economic activity. It includes fair competition, the opportunity to set up economic enterprises without restriction, to change the format and direction of one's activity, to wind up existing businesses and to sign contracts. A vital component of the right to freedom of enterprise is the opportunity for somebody wishing to engage in business to enter or leave the market without any artificial obstacles.
The Constitution allows the legislator the discretion to create a court of appeal within the framework of administrative justice. Nonetheless, in exercising this discretion, the legislator should be guided by the necessity to protect fundamental human and civil rights provided by the Constitution and by international treaties. The rights to judicial protection and to appeal require special safeguarding.
The review of judgments which have been handed down, based on judicial error is prohibited as this would render the concept of the final and binding force of judgments pointless.
Judgments by the specialised administrative court could not be reviewed by the court, where there is no appropriate specialised judicial chamber. Guarantees under the Constitution of the existence of the chambers within the Cassation Court will make sense once the Cassation Court has its own specialised chamber with the power to examine the facts of a given case and make a decision on it.
Summary:
The applicant argued that the uncertainty of the notion of "entrepreneurial activity" and the wording determined in various normative acts were open to different interpretations, as they allowed an individual's activity to be considered both entrepreneurial and non-entrepreneurial.
In its analysis of the legislation, the Constitutional Court noted that the legislator had outlined the basic features of the notion of "entrepreneurial activity" and had placed no restrictions on the inclusion of additional features. The Cassation Court, within the scope of its function of ensuring uniformity in the implementation of the law and within the scope of its authority to contribute to the development of law, had interpreted the legislative meaning of the notion and the ambit of the features.
The Constitutional Court found no uncertainty in the disputed norms.
The applicant also challenged the norms of the Administrative Procedural Code, according to which judgments of the Administrative Court are final and binding from the moment they are handed down, and the procedure of bringing an administrative case before the Cassation Court and proceedings of that case in front of the Cassation Court were regulated by the relevant norms of the Civil Procedural Code.
Systematic analysis of the Judicial Code led the Constitutional Court to pinpoint the following elements of the legal regulation on the lodging of an appeal against judgments of the Administrative Court:
- judgments of the Administrative Court become binding from the moment they are handed down and cannot be brought before the Appeal Court;
- judgments of the Administrative Court can only be brought before the Cassation Court;
- as it is not possible to bring judgments of the Administrative Court before the Appeal Court, they can be brought before the Cassation Court on the same basis as judgments of the Civil Court of Appeal;
- the criteria of admissibility of appeals against judgments of the Administrative Court are the same as those governing appeals against judgments of the Civil Court of Appeal;
- the Cassation Court examines appeals against the judgments of the Administrative Court within the same ambit as appeals against judgments of the Civil Court of Appeal and exercises the same authority.
The Constitutional Court made reference to the fundamental legal opinion expressed consistently in the case-law of the European Court of Human Rights, under which the European Convention on Human Rights does not compel contracting states to create appeal courts or cassation courts. However, if they are created, those involved must exercise all the guarantees enshrined in Article 6 ECHR. In the case under review, the Constitutional Court began by examining whether the legal provision for appeal against administrative law judgments could safeguard the effective exercise of the right to a fair trial within the administrative justice system.
The Constitutional Court found that the effectiveness of exercising the right to a fair trial within administrative justice primarily hinged upon the two-tier system of administrative justice of the Republic of Armenia and the effectiveness of that system. The efficiency of and access to the Cassation Court were particularly important, given that this was the only court to which an appeal could be lodged.
The Constitutional Court observed that the disputed norms of Article 118 of the Administrative Procedural Code, without taking into account the features of administrative justice and the features of determination of disputes in public law, had extended the regulations on the Cassation Court within the three-instance system of civil procedure to appeals against administrative court judgments, including the criteria for appealing to the Cassation Court and the criteria of admissibility of an appeal. This effectively restricted access to the Cassation Court. Because there was no recourse to the Appeal Court in administrative cases, the Constitutional Court deemed it unlawful to use the same basis for appealing against administrative court decisions and criteria for the admissibility of an appeal, within the three-instance system of civil procedure. The Constitutional Court called for a clear definition within the Administrative Procedural Code of the procedure for lodging appeals against decisions by administrative courts, the basis for bringing an appeal before the Cassation Court, and rules of appellate procedure. Reference should be made to other laws only if such references fell within the general constitutional principles of the judicial system.
The Constitutional Court emphasised that the provision in Article 115.1 of the Administrative Procedural Code underlined the inefficiency of the current two-instance system of administrative justice. Under this provision, the judgments of the Administrative Court deciding the case in point become binding from the moment they are handed down. The Constitutional Court found that taking administrative court judgments to the Cassation Court under such circumstances not only makes the protection of rights inefficient in the Cassation Court, but also violates the principles of legal certainty and security. These are elements of a democratic state governed by the rule of law, and are enshrined in Article 1 of the Constitution.
The Constitutional Court noted that it is not possible to file an appeal against a decision by the Cassation Court which declared the case inadmissible. This differs from the situation governing decisions by the Appeal Court to delcare a case inadmissible. This has an impact on access to and efficiency of the two-instance system of administrative justice. Thus, in instances of an appeal being declared inadmissible by the Cassation Court, an individual is not only deprived of the opportunity to file an appeal against that decision, (and therefore any effective remedy against that decision), but the right to a fair trial is effectively only available within the Court of First Instance.
The Constitutional Court also commented that the requirement that appeals before the Cassation Court can only be lodged through accredited advocates is a factor that restricts access to the Cassation Court. Yet this is the only judicial instance available for appeals against administrative court acts.
The Constitutional Court observed that in the sphere of administrative specialised justice the right to a fair trial is only effective where there is access to an efficient Cassation Court. A specialised chamber is also needed, for effective judicial protection, in the form of a separate specialised chamber vested with the power to examine facts, and to organise the examination of cases according to the features of administrative justice.
The Constitutional Court pronounced the disputed norms of the Administrative Procedural Code contrary to the Constitution and accordingly null and void.
Armenian.