a) Armenia / b) Constitutional Court / c) / d) 28-11-2007 / e) DCC-719 / f) On the compliance of Chapter 26 of Civil Procedure Code with the Constitution 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 - Trial/decision within reasonable time.
Keywords of the alphabetical index:
Judge, unaction, remedy, absence
The State has a positive obligation to protect the constitutional right to judicial remedy, both in the legislative and the law-enforcement procedures. On the one hand, the legislator must provide fully-fledged mechanisms and opportunities for judicial remedy. On the other hand, law-enforcement bodies must admit individuals' claims for examination without exception.
I. The courts of general jurisdiction had refused to admit the applicant's complaint regarding actions and/or omissions on the part of the judiciary. Their reasoning was that the provisions of Chapter 26 of the Civil Procedure Code did not cover such claims. The applicant accordingly lodged a complaint before the Constitutional Court, challenging Chapter 26 in its entirety, because it did not make express provision for challenges to unlawful acts and omissions on the part of the judiciary.
The applicant argued that there was no way of overcoming the problem of the lack of scope to challenge acts and/or omissions on the part of the judiciary. For instance, there was no remedy against refusal to admit the civil suit through inaction on the part of a judge, due to the deficiency in the provisions of the Civil Procedure Code. The situation is even more serious, when there is no way of filling the gap in the legislation, and so individuals whose rights have been violated have no remedy, due to the lack of relevant norms in the legislation.
II. The Constitutional Court examined the content of the relevant articles of the Civil Procedure Code, and the Law on the Foundations of Administration and Administrative Procedure. This legislation deals with the repeal and challenge of unlawful (contra legem) acts or actions (omissions) of public agencies, local self-government bodies and their officials. The Court noted that Chapter 26 of the Civil Procedure Code deals only with judicial control over public bodies and officials, who do not administer justice.
Analysis of the legislation reveals that court judgments are subject to judicial review at appeal and cassation stage in cases stipulated by the Civil Procedure Code. The legislation also sets out the category of intermediate court decisions that are subject to review. Only those decisions are subject to review, which might suspend or hinder the implementation of the right of accessibility to a court. The rationale behind the exclusion of certain judicial acts from judicial review is to avoid delays in civil procedure. One therefore has to draw a distinction between acts of the judiciary and those of other public agencies. To do otherwise might make it difficult to comply with the principle of administering justice within a reasonable time.
The logic of appealing against judicial acts normally results in the referral of the problem to a higher court. Extension of the provisions of Chapter 26 of the Civil Procedure Code to appeals against the acts of the judiciary (as is already the case with other public agencies) would militate against the above logic. It could result in the opportunity to refer a decision made by the same court or even a higher one to a single judge in a lower position. It would also unleash the possibility of appeals against decisions passed by a panel of judges in a higher court to a single judge in a lower instance court.
The Court pronounced the provisions of the Part 26 of the Civil Procedure Code to be in conformity with the Constitution.
The applicant had claimed to have been deprived of his right to access to court, as the courts had refused to admit his claim through inaction, and he had no legal remedy against such inaction. The Court held that the courts' inaction towards the claims undermined the nature of the right to judicial remedy. Such an approach made justice inaccesible for individuals. Such a situation is incompatible with the constitutional principles of rule of law.
The Constitutional Court emphasised that the constitutional right to judicial remedy implies a positive obligation of the State to safeguard it both in the legislative and the law-enforcement processes. On the one hand, the legislator must provide fully-fledged mechanisms and opportunities for judicial remedy. On the other hand, law-enforcement bodies must admit claims of individuals for examination without exception.