The Human Rights Defender
is challenging provisions of the Judicial Code and the ԲԴԽ-16-Ն-6 Decision of
the Supreme Judicial Council.
The Judicial Code stipulates
that the distribution of court cases should be conducted through a computer
(automated system), from which an exception can be made only in one case: If
there is a force majeure, and as a result cases can be distributed through a
computer. The law has set a high threshold for overcoming the threshold.
Only in this exceptional
case does the law allow for cases to be distributed manually and in a
non-automated system, through the Presidents of the courts. However, even in
such exceptional cases, the court cases are distributed evenly between the
judges by the President of the court, based on the alphabetical order of the
judges’ surnames.
The existence of a
mechanism for the distribution of cases between judges through a computer
program is due to the need for high protection of the values guaranteed by the
automated system; that is a system which excludes human discretion.
This specifically to the
impartiality and independence of judges, which are directly linked to
constitutional rights of people, from a fair trial to personal liberty (for
example, the law of arrest or detention) to the right to private and family
life (for example, control over telephone conversations or correspondence).
The issue is in the fact
that since June, 2021, within the he framework of the preliminary investigation
of one of the criminal cases, the criminal prosecution body has confiscated the
keys of the access to and the management of the computer program for the
distribution of court cases. Thus, it was interpreted that there is the
existence of a force majeure. As a result, the cases are being distributed in a
manual manner. Moreover, the law does not set the criteria of the force
majeure.
This has become the rule
as opposed to the exception, effecting the judicial system of the country.
Additionally, the mentioned fact does not meet the threshold of a force
majeure.
In other words, the issue
raised by the application to the Constitutional Court is the fact that there
are vague legal norms, which have received such interpretations and
implementations, that they have caused problems in the field of the
constitutional rights of people.
The mentioned situation
becomes even more problematic, if the uncertain operative conditions are taken
into consideration. Firstly, the preliminary investigation does not a time
limit (the confiscation has taken place during this process); this also applies
to the trial of the case. Judicial appeals related to the preliminary
investigation or trial should be taken into consideration, that is the issues
subject to preliminary and subsequent judicial control. This implies that it is
not clear when the confiscation would be lifted or stopped, and approximate
timeframes are not mentioned.
Moreover, the issue of
disputing the preliminary investigation of the mentioned criminal case or not
conducting it is not raised in the application filed by the Human Rights
Defender of Armenia. The application also records that cooperative work between
the Human Rights Defender and the Supreme Judicial Council is established.
The issue at hand is
different: As a result of the lack of sufficient legislative rule, and
inadmissible interpretation in practice, the entire automated system of the
distribution of the court cases to the judges of the entire justice system
(criminal, administrative, civil) in the Republic of Armenia has been paralyzed
due the decision or intervention of a criminal prosecution body conducting the
prosecution of a single criminal case. This has caused issues to the
constitutional rights of people.
Another issue raised in
the application is that in the absence of the automated system aimed at
excluding discretion and arbitrariness in the distribution of court cases and
guaranteeing the right to a fair trial, court cases are distributed by the
presidents of the courts, without any registered or functioning criteria an approaches;
at the same time, the Judicial Code does not have provisions for such cases.
The situation is also problematic from the viewpoint of constitutional rights.
During the process of the
preparation of the application filed to the Constitutional Court, the Human
Rights Defender sent inquiries to the Supreme Judicial Council, as well as to
the presidents of individual courts. The explanations provided further
reinforces the conviction of the Office of the Human Rights Defender that the
mentioned bodies or institutions do not know when would the automated system be
in use again, as well as the fact that there si not a single unified set of
standards for the presidents of the courts, which would have minimalized the
risks of the manual distribution of the court cases.
The application is based
on the concerns and complaints addressed to the Office of the Human Rights
Defender by persons deprived of their liberty and their lawyers, as well as the
confidential and in certain cases public concerns of various judges addressed
to the Office. In relation to these issues, the Human Rights Defender has
received inquiries from various international organizations (CoE, UN, etc.).
The application is also
based on the results of the review of public materials.
Added to all these is the
fact that the legal norms are deficient to the extent that the rules of the
distribution of the cases by the presidents of the court, when the automated
system is not functioning, are not observed as well.
For example, the studies
demonstrate that the requirement to distribute court cases in alphabetical
order of the judges' surnames is not met (often). In another case, the
principle of random distribution of court cases is not observed. Moreover, the
studies have demonstrated that he current situation has led to dangerous
consequences: The Office of the Human Rights Defender has revealed that certain
judges have not received certain categories of cases (for example, cases that
are complex, are sensitive, and have generated public interest), because of the
fact that these judges are intentionally not given these cases. This is also
dangerous not only in terms of discrimination between judges or their “judicial
isolation”, but also from the viewpoint of systemic threats to human rights.
The application of the
Human Rights Defender to the Constitutional Court demonstrates the situations
and interpretations that pose a deep threat to constitutional rights in the
absence of insuring legal provisions, the dangerous consequences of the
intervention of the criminal prosecution body on the entire judicial system of
Armenia, by providing concrete examples, and based on international legal
provisions. Practical situations of the violations of constitutional rights of
people are also demonstrated.
Thus, by the application
filed by the Human Rights Defender to the Supreme Court, the compatibility of
Article 41(4) of the Judicial Code and the Point 4 of the ԲԴԽ-16-Ն-6 Decision
of the Supreme Judicial Council and Point 19 of ANNEX 1, with Articles 63, 78,
79, and 81 of the Constitution of Armenia, are being disputed.
Mr. Arman Tatoyan
The Human Rights
Defender of Armenia
Հայերեն
