The Human Rights Defender submitted a
special opinion (amicus brief) to the Constitutional Court on the case accepted
by the Administrative Court.
In particular, according to Article 7(1)
of the Law “On The Prevention of Domestic Violence, Protection of Persons
Subjected to Violence in the family and Restoration of Family Solidarity”, if a
family member has used violence against another and there is a reasonable
assumption that there is an imminent threat of a recurrence or continuation of
the violence, then, to ensure the life
and health of the other family member, the competent police officer shall
instantly make a decision of immediate intervention. The Administrative Court
raised the issue of the constitutionality of the above-mentioned provision,
noting that the requirement of urgency without exception leads to the
restriction of the right to proper administration of a person guaranteed by the
Constitution.
The Human Rights Defender considered the
issue in the context of the peculiarities of a person's right to life, to physical
and mental inviolability, and domestic violence, noting that giving priority to
the right of proper administration should not violate the above-mentioned
rights.
The issue should also be looked upon with
the primary consideration of the nature and purpose of determining the urgent
intervention. In cases of domestic violence, rapid and effective response by
law enforcement is a priority, which is very important for preventive purposes.
The purpose of such a legislative regulation is to ensure the immediate
protection of rights, as well as the prevention of potential dangers.
The Human Rights Defender of Armenia
emphasized with his position that the issues raised in the application are
mostly practical, and a matter of the professional skills/training and
abilities of the representatives of the competent bodies in the process of
protection of rights and the guarantee of their implementation. This should be
addressed by taking steps to develop them, rather than by enacting legislative
changes that provide an exception to the guarantee of urgent decision-making.
By making an exception to the urgency of the decision-making on immediate
intervention, , this process might become meaningless given the defensive
nature and aim of that decision. On April 6, 2021, the Constitutional Court of
Armenia made a procedural decision to terminate the proceedings of the case.
The Court stated that, the applicant's
reasoning on the constitutionality of the disputed provisions is not directly
related to any possible legal position of the Constitutional Court on the
constitutionality of the disputed provisions. The Constitutional Court recorded
also that the right to disclose the legal content of a law, to ensure the
uniform application of any provision of the latter, is constitutionally
reserved for the three-level judicial system and the issues raised by the
applicant can be resolved within the framework of the relevant precedent for
uniform application of the law.
It is important that the Constitutional
Court reaffirmed by its decision the position of the Human Rights Defender,
that there is no need for a legal position on the constitutionality of the
disputed provisions and the issue raised by the Administrative Court can be
resolved within the framework of setting a relevant precedent for uniform
application of the law.
The Human Rights Defender has always
underlined the positions contained in the decisions of the Constitutional
Court, which are strong guarantees for the protection of the rights and
freedoms of individuals and the improvement of legislation.
The decisions of the Constitutional Court
are crucial for the improvement of the situation of human rights protection in
the country, and the legal system in general. Exhaustive implementation of the
positions contained in those decisions is one of the strong guarantees for
protection of rights and freedoms.
It should be reminded that the practice of
the Human Rights Defender to submit special opinions (amicus curiae) to the
Constitutional Court is entirely in line with the priorities of the Council of
Europe, which is the principle of subsidiarity aimed at better aligning the
country's legal system with the European Convention on Human Rights. The
Defender's specific opinions summarize both the analysis of rights and freedoms
in the context of constitutional requirements, international principles and
standards, and the results of the review and monitoring of individual
complaints to the Defender.
The
practice of submitting special opinions to the Constitutional Court is
continuous.
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