The
Human Rights Defender has published an Ad-Hoc Report on the constitutional
rights of people, when a decision or a conclusion is not made, and an
application is rejected when votes are evenly distributed in the Constitutional
Court.
The
issue is the fact that the Constitutional Court can reject an application which
has been accepted for examination when the votes are evenly distributed in the
Constitutional Court and, it does not make a decision or a conclusion on the
case.
This
refers to Article 62(9) of the Constitutional Law on the Constitutional Court,
which allows the Court to reject the application already considered for
examination, on which no decision or conclusion is made due to an equal
distribution of votes.
The
Human Rights Defender has also applied to the Constitutional Court regarding to
this issue. The reason for the application was an earlier application sent on
December 9, 2020, according to which the defender was disputing the
constitutionality of Article 416(1-5.1) and Article 422.
In
particular, this refers to the result of the consideration of the
above-mentioned application, according to which the Constitutional Court considered
the application rejected as a result of an equal distribution of votes
With
the mentioned application the Human Rights Defender was disputing that the Tax
Code does not provide a flexible mechanism for imposing fines for violating the
rules of using cash registers. Only fixed amounts of fines are set, without
taking into consideration the specific circumstances of the offense.
The
Constitutional Court did not make a decision on the application of the
Defender.
The
regulation of the Constitutional Law on the Constitutional Court has been
disputed based on the following main approaches:
-Within
the context of the Convention for the Protection of Human Rights and
Fundamental Freedoms, applications to the Constitutional Court, and decisions
taken by it are effective means of protecting human rights;
-The
Constitutional Court performs the function of protection of the rights of
persons and the restoration of violated rights in specific cases, since the
final judicial act against a person based on the decision of the Constitutional
Court, which recognizes the disputed norm or its interpretation as
unconstitutional and invalid, is subject to review based on a new circumstance.
However,
the rejection of an application already accepted for consideration due to
technical reasons, in fact deprives people from the opportunity to restore
their violated rights;
-in
addition to being a mean of protecting subjective rights, the Constitutional
Court also has a preventive function.
The
positions of the Constitutional Court, enshrined in the decisions made by the
Court, have a preventive importance, from the point of view of excluding
further violations, and the ensuring of constitutional guarantees for
constitutional and human rights.
The
Human Rights Defender specifically underlines that the application submitted to
the Constitutional Court aims at presenting the systemic problems which have
been raised by individual complaints addressed to the Office of the Human
Rights Defender, to combat against the roots of the problems, and to contribute
to their solution and to exclude similar issues and violations in the future.
The
decisions of the Constitutional Court which are subject to mandatory execution,
based on the applications of the Human Rights Defender, in fact, record the
systemic issues raised by the applications, the disputed norms are recognized
as unconstitutional and invalid, or at least official interpretations of the
disputed norms are given.
Meanwhile, as a result of the application of
Article 62(9) of the Constitutional Law on the Constitutional Court, the
systemic problems mentioned in the application of the Human Rights Defender of
Armenia remain unresolved, and the violations of rights not eliminated, thus
leaving the issue of legality of the disputed norm suspended.
It
appears as if the Constitutional Court cane resign from its function to protect
rights, leaving peoples’ issues unresolved.
This
has a negative impact on everyone’s’ right to receive the assistance of the
Human Rights Defender, the functions of the Office of the Defender, and
disrupts the public trust towards this constitutional institution.
The
importance and necessity of making a substantive decision on a case under
consideration in the Constitutional Court is especially emphasized, when taking
into consideration the fact that the legal positions set out in the reasoning
segment of the Constitutional Court decisions are a source of law, and by their
nature are an official interpretation of constitutional provisions.
To
access the Report, click here:
https://ombuds.am/images/files/90f6009b34332fc3f1077e63a618c7cf.pdf
Mr.
Arman Tatoyan
The
Human Rights Defender of Armenia
Հայերեն
