IN THE NAME OF THE REPUBLIC OF ARMENIA

DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF ARMENIA

 

ON THE CASE ON DECIDING THE QUESTION OF CONFORMITY OFOBLIGATIONS STATED IN THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS SIGNED ON 4th NOVEMBER, 1950 AT ROME, IN THE PROTOCOL TO THE CONVENTION FOR PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS SIGNED ON 20th MARCH, 1952 AT PARIS, IN PROTOCOL NO. 4 "ON CERTAIN RIGHTS AND FREEDOMS OTHER THAN THOSE ALREADY INCLUDED IN THE CONVENTION AND IN THE FIRST PROTOCOL THERETO, AS AMENDED PROTOCOL NO. 11", SIGNED ON 16th SEPTEMBER, 1963 AT STRASBOURG, AND IN PROTOCOL NO. 7 TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, SIGNED ON 22nd NOVEMBER, 1984 WITH THE CONSTITUTION OF THE REPUBLIC OF ARMENIA

 

City of Yerevan February 22, 2002

 

The Constitutional Court of the Republic of Armenia chaired by the President of the Constitutional Court G. Harutyunyan, represented by the Deputy President of the Constitutional Court V. Hovhanissian, Members of the Constitutional Court A. Gyulumyan, H. Nazaryan, R. Papayan, V. Poghossyan, V. Sahakian and M. Sevyan, with the participation of the official representative of the President of the Republic of Armenia, Minister of Justice, D. Harutyunyan, pursuant to Point 2 of Article 100 and Point 1 of Article 101 of the Constitution of the Republic of Armenia, to Point 2 of Article 5, to Point 1 of Article 25 and Article 56 of the Law "On the Constitutional Court" of the Republic of Armenia, considered in a public hearing, on the case on deciding the question of conformity of obligations stated in the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4th November 1950 at Rome, in the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 20th March 1952 at Paris, in Protocol No. 4 "On certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, as amended Protocol No. 11", signed on 16th September 1963 at Strasbourg, and Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 22nd November 1984 with the Constitution of the Republic of Armenia. The case was initiated through a petition of the President of the Republic of Armenia to the Constitutional Court. Having heard the report of V. Hovhannissyan, Deputy President of the Constitutional Court, having examined the explanations of the representative of the President of the Republic of Armenia, Minister of Justice D. Harutyunyan, having examined the Convention, the above-mentioned protocols of the Convention, and other existing documents in the case, the Constitutional Court of the Republic of Armenia

FINDS: 1. The Convention for the Protection of Human Rights and Fundamental Freedoms was signed on 4th November 1950 and was entered into force on 3rd September 1950. On behalf of the Republic of Armenia the Convention was signed on 25th January 2001. Through the Convention and its supplementary Protocols, an European system for the protection of human rights has been formed, which includes political and civil, as well as a range of socio-economic rights and freedoms.

2. The Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 20th March 1952 at Paris concerns to the rights to property, education, and free election.

3. Protocol No. 4 "On certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, as amended Protocol No. 11", signed on 16th September 1963 at Strasbourg, regards the prohibition of imprisonment for dept, the protection of freedom of movement, the prohibition of expulsion of nationals, and the prohibition of collective expulsion of aliens.

4. Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 22nd November 1984 concerns to the procedural safeguards relating to expulsion of aliens, right of appeal in criminal matters, compensation for wrongful conviction, right not to be tried or punished twice, as well as the equality between spouses.

5. By the issued Convention and Protocols the Republic of Armenia shall assume the following obligations, especially:

6. The Convention for Protection of Human Rights and Fundamental Freedoms adopted on 4th November, 1950, essentially differs from other universal and regional international treaties and agreements since signed by the Republic of Armenia, by that a special international control system, in the name of the European Court of Human Rights and the Committee of Ministers of the Council of Europe, is acting to guarantee the protection of human rights and fundamental freedoms set forth by the Convention and the Protocols thereto.

7. The majority of rights and freedoms stated in the Convention and Protocols No. 1, 4 and 7 thereto, issued in the Constitutional Court of the Republic of Armenia are in conformity with the rights and freedoms stated in other international documents under the force, particularly in the International Pact of 16th December, 1966 on Civil and Political Rights and the facultative protocol thereto, as well as with the rights and freedoms stated in the other International Pact of 16th December, 1966 on Economic, Social and Cultural Rights. Pursuant to the decision of the Supreme Council of the Republic of Armenia of 1st April, 1991, the Republic of Armenia has joined to the International Pact on Civil and Political Rights and the facultative protocol thereto, and according to the decision of the Supreme Council of 9th June, 1993, to the International Pact on Economic, Social and Cultural Rights.

8. The examination certifies, that a part of the rights and fundamental freedoms stated in the issued Conventions and said protocols are harmony and in accordance with human and citizensí rights and freedoms determined in the Constitution of the Republic of Armenia, and another part is stated in the Constitution of the Republic of Armenia by the other edition and formulations, and the separate rights stated in the issued Convention and Protocols are not immediately set forth in the Constitution of the Republic of Armenia. Thus:

8.1. The rights and freedoms stated in Articles 2, 3, 6, 11, 13, 14 of the Convention are in accord and conformity with the rights and freedoms determined in relevant part to, Articles 17, 19, 38 and 39, 25, and 26, 38, 15 and 16 of the Constitution of the Republic of Armenia.
8.2. The rights and freedoms specified in Articles 1, 3 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 20th March 1952 at Paris are in accord and conformity with the rights and freedoms determined in relevant part to, Articles 8 and 28, 2-3 and 27 of the Constitution of the Republic of Armenia.

8.3. The rights and freedoms specified in Point 1 of Article 2 and Article 5 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 22nd November 1984 at Strasbourg are in accordance with the rights and freedoms stated in Paragraph 3 of Article 40, Paragraph 2 of Article 32 of the Constitution of the Republic of Armenia.

9. Another part of the rights and fundamental freedoms stated in the Convention and Protocols is given in the Constitution of the Republic of Armenia in the other edition and formulations. Accordingly:

9.1. The rights and freedoms mentioned in Articles 5, 7, 14, 8, 9, 10, 12, 13, 15 (2), 16 of the Convention are specified by the other edition in relevant part to, Articles 18, 42 (Clause 1), 15 and 16, 20 and 21, 23, 24, 32, 38, 45, 25, and 26 of the Constitution of the Republic of Armenia.
9.2. The right mentioned in Article 2 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 20th March 1952 at Paris is stated by other edition in Article 35 of the Constitution of the Republic of Armenia.

9.3. The freedom mentioned in Article 2 of Protocol No. 4 "On certain rights and freedoms other than those already included in the convention and in the first Protocol thereto, as amended Protocol No. 11", signed on 16th September 1963 at Strasbourg to the Convention for the Protection of Human Rights and Fundamental Freedoms is stated by the other edition in Article 22 of the Constitution of the Republic of Armenia.

9.4. The right mentioned in Article 3 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 22nd November, 1984 at Strasbourg is stated more generally in Paragraph 4 of Article 40 of the Constitution of the Republic of Armenia.

10. The rights and freedoms stated in the Convention and Protocols indicated in aforementioned points 9.1., 9.2., 9.3. and 9.4., though are in conformity with the same rights and freedoms set forth by the Constitution of the Republic of Armenia, but the Constitution of the Republic of Armenia delegates some of them not to people generally, but only to the citizens. They are: Articles 15, 22, Paragraph 2 of Article 25, Articles 26, 27, 28, 29, 31, 33, 35 and 37. Simultaneously, the above-mentioned Convention and Protocol norms, stated by the other edition in the Constitution of the Republic of Armenia, as by the content, as well as by the juridical formulation, are in concord with the same rights and freedoms of the International Pact on Civil and Political Rights, International Pact on Economic, Social and Cultural Rights, and they do not only contradict the Constitution of the Republic of Armenia, but they provide the protection of human rights and freedoms more vastly.

11. A number of rights and freedoms in the Convention and Protocols, at issue, are not immediately stated in the Constitution of the Republic of Armenia. Thus:

11.1. The right of any person and non-governmental organizations to appeal to the International Court with the view of protection of their violated rights and freedoms, stated in Article 34 of the Convention, does not have the same norm in the Constitution of the Republic of Armenia.
11.2. The rights and freedoms noted in Article 1, Point 1 of Article 2, Articles 3, 4 of Protocol No. 4 "On certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, as amended Protocol No. 11", signed on 16th September 1963 at Strasbourg are not stated in the Constitution of the Republic of Armenia.

11.3. The rights noted in Article 1, Point 2 of Article 2, Article 4 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 22nd November 1984 are not stated in the Constitution of the Republic of Armenia.

12. The purposes and principles of the protection of human rights and freedoms stated in the Conventional and Protocol norms indicated in aforementioned points 9.1.- 9.4. are in accordance with the purposes and principles of norms and provisions on the protection of human rights, regulating legal relations, set forth by the Constitution of the Republic of Armenia The essence of the existing difference is that the Conventional and Protocol norms protect human rights and freedoms more comprehensively, than the mentioned norms of the Constitution of the Republic of Armenia.

13. Though the difference between the Conventional and Constitutional norms is not directed to the special purposes of limitation of the personsí rights and freedoms being under the jurisdiction of the Republic of Armenia, however, at the first look it may seem that there is a contradiction of normative nature between them. Such statement of question is deprived of any basis if the whole legislative system and the obligations of international treaties be considered as a unique intercommunicated legal system. In this regard, unreservedly following to the requirement set forth by Article 6 of the Constitution of the Republic of Armenia, which states that, "International treaties that contradict the Constitution may be ratified after making a corresponding amendment to the Constitution". Furthermore, it should also be adopted, as is required by Article 4 of the Constitution of the RA, as an obligatory initial provision regulating the constitutional relations, which declares: "The state guarantees protection of human rights and freedoms based on the Constitution and the laws, in accordance with the principles and norms of international law". The mentioned constitutional provision means that the Republic of Armenia is obliged to conscientiously carry out its obligations arising from principles and norms of international law, including international treaty obligations (Pacta sunt servanda). The mentioned two pacts of 16th December 1966 are the international, all- encompassing documents, through which the foreseen obligations through which regarding citizensí rights and fundamental freedoms, as well as their possible limitation or derogation from taken duties have a legally binding force for the Republic of Armenia, regardless of whether Armenia will ratify the Convention and Protocols, at issue, or not. Thus, Articles 4 and 43 of the Constitution of the RA, in fact, include the provisions of mentioned pacts into the system of norms and principles regulating the constitutional-legal relations. Accepting this reality, it is necessary to protocol, that this condition may create the illusion of apparent contradiction between Article 4 and Clause 6 of Article 6 of the Constitution of the RA. The important basis witnessing its absence is the provision of Article 43 of the Constitution on that "the rights and freedoms set forth in the Constitution are not exhaustive and shall not be construed to exclude other universally accepted human ----civil rights and freedoms". The mentioned constitutional provision may be interpreted, that a citizen of the Republic of Armenia or a person being under the jurisdiction of the Republic of Armenia may not only have the rights and freedoms not stated by the Constitution, but also such rights and freedoms, which are the logical continuation of the rights and freedoms stated by the Constitution or an additional guarantee of the implementation of the latter. The ground for this interpretation is the following, that a possible collision of the provisions of the Constitution and any international treaty supposes that the Constitution directly excludes the right, which is clearly determined by the treaty, or when the Constitution obliges such behavior, which is categorically prohibited by the treaty. There is no such collision in the view of mentioned rights. The Constitutional Court also supposes that regardless of the norms of Public International Law, the states are bound with mutual obligations, yet the approach towards human rights protection, formed in the system of Public International Law, gives ground to conclude that the human rights and fundamental freedoms, based on the system of multilateral conventions, are rather the objective standards of the behavior of the states, than their mutual rights and obligations. The obligations of the states, by these conventions, are rather directed to persons being under the jurisdiction of these states than to the other participating states. In this regard the Convention of the 4th November 1950 is called to protect persons and non-governmental organizations from the organs of the state power, which is an important sign of the rule of law, stated by Article 1 of the Constitution. Moreover, the Convention and Protocols are based on such rights and standards, which are in accord to the spirit and letter of human rights and fundamental freedoms, guaranteed by the Constitution and the international treaties of the Republic of Armenia. The whole legal regime of the Convention, the principles of the possible limitation of the rights are constructed on that initial provision that the obligations adopted by the state are directed to the protection of all people, according to the norms and principles of international law. Consequently, taking into account that the Constitution, through Article 4, obliges the state, on the basis of the international law principles, to provide all the internationally recognized rights and freedoms, at the same time by Article 43, it accepts that the rights and freedoms enumerated by the Constitution are not exhaustive, that a person and a citizen may have other universally recognized rights and freedoms, as well as accepting the fact that the constitutional norms on human rights and freedoms do not have a prohibiting, but an authorizing nature, it can be said that the issued conventional and Protocol norms are in accord with the norms and principles on human rights and fundamental freedoms, set forth in the Constitution of the Republic of Armenia.

14. In the view of international legal obligations of the Republic of Armenia, in the system of the rights and freedoms mentioned in points 11.1-11.3 there is a new provision set forth by Articles 34 and 36 of the issued Convention on the right of persons and non - governmental organizations being under the jurisdiction of the participating states to appeal to the international court in order to protect their violated rights; the adopted decisions of this court shall receive the obligatory legal force for the state. The Republic of Armenia does not directly declared such right either by its Constitution, or by recognizing through the international treaties under the force either for its citizens, or for the persons being under its jurisdiction. But taking as a ground the authorizing nature of Article 43 of the Constitution of the Republic of Armenia and the sovereign right of the Republic of Armenia voluntary and on the base of mutual concordance to accept such an obligation in the name of the effectiveness of the international co-operation, it can be noted that the obligations set forth by Articles 36 and 43 of the issued Convention do not contradict the spirit of the Constitution of the Republic of Armenia. The obligations declared by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and issued Protocols are in accord with the obligation set forth by Article 3 of the Statute of the Council of Europe, according to which the Republic of Armenia, as a Member of the Council of Europe, has been obligated to accept the principle of rule of law, as well as the principle, according to which each person, being under the jurisdiction of this state, should enjoy human rights and fundamental freedoms. The Republic of Armenia ratified the Statute of the Council of Europe on the 30th December 2000. Proceeding from the results of the case, hearing and adhering to Point 2 of Article 100, Paragraphs 1 and 2 of Article 102 of the Constitution of the Republic of Armenia, to Point 2 of Article 5, Articles 67 and 68 of the Law "On the Constitutional Court"

DECIDES: 1. The obligations declared in the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4th November 1950 at Rome, in the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms signed on 20th March 1952 at Paris, in Protocol No. 4 "On certain rights and freedoms other than those already included in the convention and in the first Protocol thereto, as amended Protocol No. 11", signed on 16th September 1963 at Strasbourg, in Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 22nd November 1984 are in conformity with the Constitution of the Republic of Armenia.

2. According to Paragraph 2 of Article 102 this Decision shall be final, is not subject to review, and shall enter into effect upon publication.

 

PRESIDENT OF THE
CONSTITUTIONAL COURT
OF THE REPUBLIC OF ARMENIA
G. HARUTYUNYAN

February 22, 2002
DCC - 350