Compulsory enforcement and legislative gap: Following the traces of Constitutional Court ruling

After the Constitutional Court issued a ruling on the second President Robert Kocharyan’s appeal, the public has been wondering whether it follows that the preventive measure for Kocharyan should be changed.

Recall that Robert Kocharyan’s defense team submitted several applications to the Constitutional Court to determine the constitutionality of two articles of the Criminal Procedure Code: grounds of applying preventive measures (Article 135) and circumstances ruling out criminal proceedings or criminal prosecution (Article 35).

On September 4, the Constitutional Court partially upheld the applications, stating that not including the functional immunity of the officials with special protection under Article 35 of the Criminal Procedure Code among circumstances ruling out criminal proceedings or criminal prosecution is unconstitutional and invalid.

Following the Constitutional Court ruling, Kocharyan’s defense team announced that the second president cannot be detained. The prosecution and some experts argued to the contrary, noting that this decision could not in any way imply a re-examination of the motion for detention or elimination of the preventive measure.

The Fact Investigation Platform decided to finally figure out what the Constitutional Court ruling implies and what consequences it will have for the second president.

Powers of the Constitutional Court

Thus, in the manner prescribed by the Law on the Constitutional Court, the Constitutional Court shall determine the compliance of the laws, the decisions of the National Assembly, the decrees and orders of the President of the Republic, the decrees of the Government and the Prime Minister, the bylaws with the Constitution. The same law stipulates that the substantive rulings and conclusions of the Constitutional Court shall be final and shall enter into force on the day they are published on the official website (Article 61, Paragraph 3). The following paragraph of the same article states that the substantive rulings of the Constitutional Court shall be binding for all state and local self-government bodies, their officials, as well as for individuals and legal entities throughout the Republic of Armenia.

What to expect from the Constitutional Court ruling

The Constitutional Court has found that not including the functional immunity provided for in Article 35 of the Criminal Procedure Code as a circumstance ruling out and dismissing the criminal case is unconstitutional. “… Thus, the Constitutional Court finds that there is a legislative gap in Article 35 of the Code: there is no legal basis for prosecution of officials with special protection under the Constitution and criminal proceedings will be terminated in all cases when the competent authority, as a result of due legal procedure, finds that their functional immunity is present. And the existence of functional immunity shall in each case be confirmed or denied, combining the facts established by the competent authority conducting the criminal proceedings, including the facts underlying the charge against the person…” (Constitutional Court ruling).

As stated in the CC ruling, the Constitutional Court refers to the constitutionality of a gap in the law if there is legal uncertainty as to the content of the impugned norm, which may or may not lead to different interpretations by the courts and which violates or may violate a specific constitutional right.

In this case, according to the CC, the rights to a fair trial, personal protection and personal freedom of a person may be violated.

Regarding the release of the second president, it should be noted that there is no such direct or indirect assertion in the CC decision. The CC has recorded the gap in the law, but not the elimination or modification of custody. In addition, it should be noted that the decision of the Constitutional Court refers to cases when the retired president is charged with actions stemming from his status, but as we know from the materials in the criminal case, Robert Kocharyan is charged with actions that do not stem from his status, for example, involving the army in domestic political issues.

Note that based on the CC ruling, Robert Kocharyan’s team of lawyers has already filed a motion with the Yerevan Court of First Instance to immediately lift Robert Kocharyan’s detention and terminate the prosecution.

The decisions of the Constitutional Court shall be binding for all state and local authorities directly concerned with this decision. In this case, the Constitutional Court has declared the law has a gap, and the body filling this gap is the legislative authority, i.e. the National Assembly, to which an initiative should be submitted to make amendments and additions to the law. The decision shall also be applied by the courts. In this case, the Court of First Instance, where the trial of Robert Kocharyan’s case will resume, may, on its own initiative, refer to this decision.

The fate of Constitutional Court rulings

As mentioned above, the decisions of the Constitutional Court are binding, but FIP.am has found that they have not always been implemented by the National Assembly.

Thus, according to Article 67 of the Law on the Constitutional Court, the Constitutional Court shall publish the status of implementation of its decisions on its official website within 45 days after the end of each year. According to the bulletin published in 2018, decisions on cases based on individual applications (of natural and legal persons) will be made in February-April 2019. And in 2018, disputed provisions of the law were recognized as unconstitutional and invalid in case of one out of 9 cases that have been examined on the basis of individual applications. This refers to the application of the Investigative Journalists NGO to determine the compliance of some of the provisions of the RA Land Code with the Constitution.

According to Decision CCD-1399 of the Constitutional Court, the contested provisions have been recognized unconstitutional, but as we read in the same bulletin, no legislative initiative has been made in the matter since the adoption of the decision.

It should also be added that although there is no legal responsibility for failure to comply with CC decisions, there is political responsibility because failure to comply with CC decisions means violating the rights of individuals, the protection of which is enshrined by both Armenia’s national legislation and international commitments.

Thus, while the rulings of the Constitutional Court are binding, they often remain on paper. And the decision based on the application by Robert Kocharyan’s defense team does not mean a change of precautionary measure. As mentioned above, the Constitutional Court has examined the constitutionality of the norm and has registered a gap in the law.

Karine Kirakosyan