THE PROBLEMS OF IMPROVING THE SYSTEM OF CONSTITUTIONAL OVERSIGHT IN THE FIELD OF HUMAN RIGHTS PROTECTION IN THE REEPUBLIC OF ARMENIA
President of the Constitutional Court of Armenia
Distinguished participants of the international seminar,
I would like to begin my presentation with two general, but to my mind, principal statements:
1.Protection of human rights, and the establishment of a system of reliable guarantees to this end, is one of the important constitutional, international-legal responsibilities/duties of a state. It is the task of the state to create such a system of political and legal guarantees of the protection of constitutional human rights that includes constitutional, international-contractual/treaty/stipulative, legislative and institutional guarantees, i.e. an entirety of principles, legal norms, mechanisms and structures.
Naturally, all institutions of state authority, particularly the head of the state, the parliament, the judiciary and the government act as the subjects that resolve this problem.
2. I would like to quote the idea expressed by Randal R. Reider and Kirk Boyd during the recent seminar held at the American University of Armenia in Yerevan. They stated that the western states have unreservedly delegated the role of individual human rights protection to the judiciary and hold that the judiciary should have power and independence and should enjoy respect. I would only add that there is no alternative to this approach, the only problem remaining its implementation.
International practice testifies/illustrates that the role of specialized agencies/bodies of constitutional oversight in the effective legal protection of human rights becomes increasingly important.
In this regard, three problems may be conditionally pointed out in the European system of constitutional oversight:
1.ensuring of constitutionality of legal acts, and by through that, maintaining the functional balance between the separated state powers as enshrined in the Constitution;
2.clear regulation regarding the problem of settling disputes among different bodies of state authority regarding their powers,
3. establishment of a system of more comprehensive and reliable guarantees of direct protection of constitutional human rights.
It should be mentioned that in the first two instances problems oh human rights protection are settled in an indirect manner as well.
Regarding the topic that is proposed to be discussed here, the following questions should be particularly singled out:
a/ to what extent does the participation/involvement of a body of constitutional oversight secure/ensure a comprehensive solution to the problem of shaping/creating stable/steady guarantees of human right protection?;
b/ what form of constitutional oversight of human rights protection and what system of subjects that may apply with such a request are to be chosen?;
c/ what is the relation between the citizen, general courts, the institution of an ombudsman ant the constitutional court in this particular sphere?
The first question is directly linked to the general logic as well as specific peculiarities of creation of a system of guarantees of the protection of the constitutional human rights and freedoms within a state. In the first place, it has to do with constitutional, legislative and institutional guarantees.
It is beyond doubt/indisputable/evident that the protection of human rights is not limited to enshrining the principle/idea in the constitution. The following questions need also to be answered:
Answers to these questions should be priorities of state policy.
The research conducted by the staff of the Constitutional Court of the RA and the seminars held during the last six months in Yerevan and in different regions of Armenia show that, to put it mildly, there is a great deal to do both in terms of legislative basis and institutional solutions.
I would like to mention two things. First, people are really confused in their knowledge of their rights and what concerns the reasonable steps in the protection of those rights. A study of twenty thousand petitions filed with different bodies of state power showed that 57.8% of these petitions were addressed to bodies or officials who did not have the authority to deal with that particular issue. The traditions of our communist past are not the only reason: the new realities have not yet been adequately understood/realized.
Second, the legal system of human rights protection as such is not a comprehensive one and is not trusted so that people would try to seek justice in the court, rather than in the beauracratic system.
The settlement of these two problems is an urgent necessity for a newly independent state and requires a comprehensive/structural approach.
It is our firm belief that the establishment of reliable guarantees of human rights protection is unimaginable without the system of constitutional justice. International experience has accumulated unrefutable proofs for this: denial of this fact would simply testify to / mean incomplete knowledge.
Constitutional oversight in the field of human rights protection is carried out in Armenia in an indirect way, not in a systematic manner. The Constitutional court carries out this authority in relation to its control, supervision of laws and international agreements. This is obviously not sufficient for a newly independent country which has chosen the path to democracy, The problem is even more complicated as virtually a deadlock/stalemate situation has emerged: this important function is not carried out and citizens are confused and at a loss.
Allow me to explain/illustrate my words with one concrete example. Article 38 of the constitution of the RA says, ”Everyone is entitled to defend in court the rights and freedoms engraved in the Constitution and the laws.” According to Art. 100, par.1, the Constitutional Court has the power to decide whether laws and resolutions, decrees and orders of the bodies of state power are in conformity with the Constitution. and, according to the Constitution of the RA the CC is a part of the judiciary.
In reality, however, the citizens do not have the possibility to exercise the afore-cited right of theirs when there is a problem concerning their rights and the conformity of a legal act with the constitution.
This is stalemate situation/deadlock in several aspects. There is no institution of an ombudsman which could not only carry the direct mission of protecting human rights, but also act as a subject of constitutional oversight. Apart from that, in general courts, a citizen may/cannot find a solution to the problem of defining whether an act is in conformity with the constitution because on the one hand, these courts do not have such powers and on the other hand, they are not among the subjects that can appeal to the CC. A multi-layer gap between a right and the possibilities of its exercise has emerged and that makes the creation of sufficient institutional guarantees of human rights protection impossible.
The international experience has undisputedly proven that all those institutions of the judiciary that have the authority to decide on the conformity of laws and regulations with the Constitution and are called for to become the guarantor of the rule/dominance/prevalence of the Constitution, should in the first place be guarantors of the protection of constitutional human rights and freedoms. this authority is best exercised/carried out on the basis of the system of individual petitions filed with the body carrying out constitutional oversight.
I would like to emphasize that, unfortunately, due attention is not paid to another, not less important aspect of the issue, either. The decision that is invoked by an individual petition, seeking to determine whether a given regulation is in conformity with the Constitution is not only an issue pertaining to the sphere of human rights protection. It stimulates democratic processes, the active participation of people in exercising power, as well as effective feedback. It makes the activity of constitutional courts full-fledged, reinforces/strengthens/enhances their independence, ensures the citizens’ active participation in securing legislative stability and rule of law, in governing the state, and, why not, relieving political tension, which is often fed/encouraged artificially.
I would like to mention the specific importance of these circumstances and draw the conclusion that a state which has chosen the path to democracy, cannot bypass them.
Fortunately, the constitution of the RA provides the bases for a definite/certain resolution of these problems. Regrettably, the further legislative regulation based on the interpretation of the Constitution has on the one hand rendered the system of human rights protection incomplete and not viable and, on the other hand, has deprived the judiciary of the possibility to efficiently accomplish one of its principal missions.