a) Armenia / b) Constitutional Court / c) / d) 03-03-2015 / e) / f) On the conformity with the Constitution of the provisions of the Administrative Procedure Code of the Republic of Armenia / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to counsel.
Keywords of the alphabetical index:
Application to court, electronic form, requirement / Access to court, condition.
A provision whereby an application can only be made to the Court of Cassation through a lawyer is out of line with the right of access to court. Conditions can be imposed provided they are reasonable and not unachievable.
I. The applicants challenged a regulation of the Administrative Procedure Code which stated that a person only had the right to apply to the Court of Cassation through a lawyer. They also took issue with a provision of the same Code which required applicants to attach the electronic version of the application to the paper version and the relevant documents.
In terms of the stipulation that applications to the Court of Cassation could only be made through a lawyer, the applicants noted that the State had to set out a mechanism for providing free legal aid regardless of the financial condition of the party. They pointed out that financial means are needed to secure the services of lawyers, which often means that such services are unavailable. The issue the applicants had with the second provision was that it was vague; it was not clear what kind of electronic version should be attached to the application and by what kind of electronic device. They suggested that it meant that those without access to computers, printers and electronic devices were precluded from bringing a case before the Court of Cassation.
II. The Constitutional Court noted that the regulation prior to the norm under challenge did not preclude a direct application to the Court of Cassation, without a lawyer. In this regard, it found that the new regulation did limit the right of access to the Court of Cassation.
It reaffirmed the legal provisions which had been expressed in DCC-765 and DCC-833. The concept of only being able to apply to the Court of Cassation by a lawyer can only be legitimate if the legislation safeguards the universal right to legal representation irrespective of the financial situation of the parties concerned. The Court held that the legislator had not taken into account the respective legal positions of the Court, particularly those referring to the issues of financial discrimination.
In terms of the regulation which requires applicants to submit an electronic version of the application to the Court of Cassation, along with the other documents, the Constitutional Court noted that the right to access to court is not absolute; various conditions can be imposed. This requirement did not, in the Court’s view, block the possibility of exercising the right to access to court. It did not require a person to achieve something that was impossible or to behave in contravention of the axiology of the Constitution, and it did not lead to destruction of the substance of law. The Court also emphasised that the legislation did not define the criteria of the electronic version of the application. The absence of mandatory criteria should be construed as the right of a person to choose any format and any criteria for the electronic version of the application. The Court also noted that a party could use any electronic device to submit an electronic version of the application.
The provision did not, in the Court’s opinion, make it compulsory to attach the electronic version to the paper form of application. The applicant could send it via e-mail. At the same time, the Court stressed that the common criteria should be legally defined.
The Constitutional Court declared that the provision whereby applications could only be made to the Court of Cassation through a lawyer was in breach of the Constitution and void. The second provision was in line with the Constitution, within the legal positions expressed in the decision.