a) Armenia / b) Constitutional Court / c) / d) 08-10-2008 / e) DCC-765 / f) On the conformity with the Constitution of several provisions of the Civil Procedural and Criminal Procedural Codes, together with Article 29.1 of the Law on Advocacy / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
General Principles - Rule of law.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Effective remedy.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Access to courts.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Right to counsel.
Keywords of the alphabetical index:
Access to the Cassation Court is of particular importance in the context of a democratic state under the rule of law and the right of access to justice. Its decisions, as stipulated by its constitutional functions, are significant not only for parties to the proceedings, but also for society as a whole.
The right to legal aid presents the opportunity to receive advice from qualified lawyers. Moreover, the state must ensure everyone has access to such advice, especially when certain individuals are not in a position to gain access to it themselves.
A demand for a case to be brought before the Cassation Court through advocacy or by an advocate is only legitimate if the interests of natural and legal persons are represented by experienced and proficient lawyers. One could extend this premise, so that the institution of bringing a case before the Cassation Court through an advocate could only be considered legitimate if the legislation guarantees universal access to the services of an advocate, irrespective of financial resources.
Numerous citizens had applied to the Constitutional Court for a review of the provisions of the Civil Procedural and Criminal Procedural Codes, and the Law on Advocacy, under which the parties to a trial are only entitled to bring an appeal before the Cassation Court against a judicial act by a lower court that is already in force and has determined the case on the merits, through an advocate accredited at the Cassation Court.
The applicants suggested that these provisions were in conflict with the Constitution, as they constituted interference with the exercise of an individual's right to judicial protection, effectively leaving the execution of justice to be governed by the financial resources of the individual concerned and the personal wishes of the advocate.
During the review the Constitutional Court considered it necessary to ascertain:
- Whether the advocates' professional body stems from international legal principles on advocacy and those set out in the Law on Advocacy, especially principles of self-government and equality.
- Is the independence of accredited advocates at the Cassation Court guaranteed?
- Do the current conditions of legal regulation of the institution under scrutiny guarantee the rights of access to court and to effective judicial remedies?
In view of the fact that:
- The Chairman of the Cassation Court is vested with licensing power but the Chamber of Advocates has no such power,
- an advocate is accredited based on criteria such as the consent of ten advocates, without taking into account performance criteria such as levels of proficiency and quality of professional knowledge,
- licensing legislation only allows a limited number of advocates to be accredited. This results in a smaller pool of advocates from which parties can select, in order to bring cases before the Cassation Court. This in turn could be an additional factor that restricts access to the Cassation Court,
- the Cassation Court's chairman's licensing power has been interpreted and exercised as discretionary power,
- the Constitutional Court has found that the principles of advocates' independence, self-government and legal equality underlying the activity of the advocates' licensing body have been violated by the regulation under dispute.
Mindful of the importance of access to the Cassation Court in the context of the principles of a democratic state under the rule of law and the right of access to justice, the Constitutional Court assessed in this case the impact of the norms in dispute on access to the Cassation Court and effectiveness of judicial protection.
The Court also assessed the constitutionality of the institute of advocates accredited at the Cassation Court and the right of access to the Cassation Court in the context of developments in criminal procedure and civil procedure legislation. It found that the existence of accredited advocates disproportionately restricted the right of access to the Cassation Court, as the legislation does not provide any mechanism for free legal assistance by accredited advocates. As a result, an individual's right to access to court will be limited by their financial resources.
The Constitutional Court also held that the advocate licensing order is a factor that in practice restricts the right of access to the Cassation Court.
The restriction on the right of access to the Cassation Court by the requirement that cases are only brought before it by advocates accredited at the Cassation Court is disproportionate to its goal, because it impedes the free and effective exercise of right to trial by parties to proceedings.
The Constitutional Court also assessed the system of accredited advocates in the light of the principles of equality before law and the prohibition on discrimination set out in Article 14.1 of the Constitution, taking into account the interests of both advocates and parties.
The only criterion for accreditation of advocates at the Cassation Court is written consent by ten advocates. There is no objective and legitimate distinction as to professional skills and experience between "ordinary" advocates and those accredited at the Cassation Court. The Constitutional Court accordingly found that depriving ordinary advocates of the opportunity to bring a case before the Cassation Court is discriminatory treatment. The legislation also fell foul of the principle of equality of parties before law, because it does not allow for free legal assistance in order to bring cases before the Cassation Court. The Constitutional Court also took note of statistical data showing that there had been a two-fold increase in the number of cassation applicants, following the introduction of the rules stipulating that only accredited advocates could bring cases before the Cassation Court.
The Constitutional Court found that the lack of objective and legitimate distinction as to professional skills and experience between ordinary advocates and those accredited at the Cassation Court, the order of licensing of court advocates, limitations on the activities of accredited advocates and the essence of co-operation between the Cassation Court and accredited advocates make the existence of the institution of accredited advocates pointless. The Constitutional Court also took note of the entrepreneurial and monopolistic nature of this state of affairs, the comparatively high costs occasioned by the fact that only accredited advocates can bring cases before the Cassation Court and the vital requirement that all remedies are exhausted before cases are brought before the Constitutional Court and the European Court. It concluded that the rule that only accredited advocates can bring cases before the Cassation Court does not simply restrict access to that court. It also restricts access to the Constitutional Court and the European Court of Human Rights, and impedes the right to effective judicial remedy.