a) Armenia / b) Constitutional Court / c) / d) 05-02-2008 / e) DCC-733 / f) On the conformity with the Constitution of Article 5 of the Law on Amendments to the Criminal Procedure Code and Article 115 of the Criminal Executive Code / g) to be published in Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Civil and political rights - Individual liberty - Deprivation of liberty - Conditional release.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
Keywords of the alphabetical index:
The rationale behind the institution of conditional release from punishment is that it can be implemented where there are specific conditions and grounds. It is therefore of specific relevance to the convicted person.
Conditional early release from punishment can be defined as a legal opportunity given to a convicted person, which is a manifestation of humanity by the state. It should not be viewed as a right on the part of a convicted person to be released early.
I. A citizen questioned the compliance with the Constitution of Article 5 of the Law on Amendments to the Criminal Procedure Code and Article 115 of the Criminal Executive Code. He argued that these might contravene Article 18.1 of the Constitution (legal protection), Article 19.1 of the Constitution (judicial protection) and Article 20.4 of the Constitution (the right of every convicted person to request pardon or mitigation of punishment). The applicant suggested that these norms had deprived the convicted of the opportunity to apply directly to the court for conditional early release. The applicant also disputed the constitutionality of Article 115, on the basis that it did not allow for appeal against decisions made by the independent commission dealing with issues of conditional early release.
II. The Constitutional Court proceeded to examine the content of the right to request pardon or mitigation of the punishment, enshrined in Clause 4 of Article 20 of the Constitution. It found that the content did not include the right to request conditional early release. The Constitutional Court gave the following reasons for its conclusions.
Under Article 20.4 of the Constitution, any convicted person has the right to request pardon or mitigation of punishment. The Constitution does not allow for any limitations on this right. Alongside the above constitutional provision, the domestic legislation does not allow for any precondition for the implementation of the right to request pardon. Every convicted person has the right to request it, irrespective of the type of crime he or she has committed, the gravity of the crime and other circumstances, such as the type of penalty or whether part of the penalty has already been discharged.
The Constitutional Court analysed the "constitutional-legal" contents of the institutions of pardon and conditional early release. It concluded that the main difference between the two institutions is that there are specific conditions and grounds governing the implementation of conditional early release. This limits the opportunities convicted persons have of availing themselves of this institution.
The Constitutional Court examined the meaning of the concept of "mitigation of punishment" prescribed in Article 20.4 of the Constitution, according to which the latter also includes the institution of conditional early release from punishment. The Court found this to be incompatible with the essence of that norm, and completely out of the scope of its logic. The whole point of early release from punishment is that it could be implemented where there are specific conditions and grounds, so that it is of specific relevance to the convicted person. The institution of release from punishment and its special manifestations is incompatible with the norm prescribed by Article 20.4 of the Constitution, where the notion of "mitigation of the punishment" notion is used and has to be understood as a partial pardon.
The Constitutional Court also ruled that the opportunity to apply to court for early release is not related to the right to judicial protection and particularly with the right to access to court. Article 18 of the Constitution guarantees the right to judicial protection where there is an issue on protection of violated rights. The institution of conditional early release from punishment is a legal opportunity for a convicted person, which is a manifestation of humanity on the part of the state. It does not constitute the convicted person's right to conditional early release from punishment.
The provision preventing appeal against decisions made by the independent commission on conditional early release was pronounced contrary to the Constitution. The Constitutional Court pointed out that only the courts can determine whether a legal act corresponds to law. However, the court cannot fulfil the authority granted to the independent commission by law. If the court concludes that the commission has acted contrary to the legislation, the operative part of the court's judgment must define the commission's responsibility to adopt its decision or to act on the basis of the court's legal position, and to bring its decision into conformity with the demands of the law.