Helsinki Citizens’ Assembly-Vanadzor

On 21 January 2020, RA Law “On making an amendment and an addendum to the RA Law HO-260-N “On state administration system bodies”of 23 March 2018” was adopted. The adopted Law provided that “Administrative acts, actions or inaction of bodies and their officials subject to the Prime Minister or Government as provided for by this law, as well as governors, may be appealed to the body who adopted the act or in a judicial procedure”[1].

The implemented legislative amendment is problematic in terms of effective protection of an individual’s rights.

Appeal to a superior body or the relevant review makes it possible to eliminate the violations made by the body who adopted the administrative act and thus, contributes to observation of principles of legality and proportionality. The institute of appealing to a superior body creates balance in person-state relations and thus promotes the participation of society in processes implemented by the authorities, and effective correlation.

In DCC-719 decision, the RA Constitutional Court expressed a legal position that “the logic of the institute of appealing in general, and inside the system of justice in particular, entails that the litigation of illegal conduct of one circle be addressed exclusively to a superior instance. The whole mechanism of appealing of the RA justice system is built on this logic”. The analysis of the mentioned position of the RA Constitutional Court makes it clear that in any circumstance, irrespective of the fact whether we deal with a judicial act or an act made by an administrative body, we can speak about the effectiveness of the institute of appeal, when the appeal is addressed to a superior body.

Article 75 of the RA Constitution requires that when regulating basic rights and freedoms, laws shall define organisational mechanisms and procedures necessary for effective exercise of these rights and freedoms. Therefore, the RA Constitutional Court considers it important not only to ensure that the law provides for the procedure of implementation of the right, but also the effectiveness of such a procedure, that is, the availability of such law-regulating measures, forms and the possibility of their enactment, which guarantee the full implementation of the constitutionally determined goal, in a particular case taking into account also the requirements of Articles 78, 79, 80 and 81 of the Constitution[2].

Defining the possibility of reviewing decisions of state bodies on citizens is an important element both for modern democratic society, as well as for good/conscientious governance. Appeals to the courts and judicial review of administrative acts are essential elements of a state governed by the rule of law and the separation of powers [3]. In terms of means of protection of rights and freedoms, the right to judicial protection, as a Convention right, is considered as a more effective means. In DCC-871 decision, RA Constitutional Court stresses that the study of the direction of legal regulation of principles and norms of international law indicates that in relation to the ways of protecting an individual’s and a citizen’s fundamental rights and freedoms, they give preference to the judicial procedure of protecting rights and freedoms as a more effective means, not excluding extra-judicial procedure of protecting rights and freedoms in certain cases. However, other avenues of review, which are quicker, cheaper and less formal are equally important for individuals, namely internal (or administrative) reviews undertaken by the public authority [4].

Expiration of extra-judicial means can be defined as a compulsory requirement for the implementation of the right to apply to court. If we study ways of control over pretrial proceedings and transfer the problem under discussion to the sphere of criminal justice, the approach of the RA Court of Cassation should be recorded. According to the above-mentioned approach, “as a precondition for the realization of the mechanism of further judicial supervision over pretrial proceedings, establishment of prosecutorial control is related to the legislator’s will to eliminate illegal or disproportional restrictions of a person’s rights and freedoms in the shortest possible time and effectively. Besides, combination of these control and supervision measures aimed at guaranteeing the legality of pretrial proceedings pursues another legitimate goal: to limit the involvement of judicial toolkit as much as possible and to avoid unnecessary public-legal measures by implementing criminal legal protection of persons’ interests through extrajudicial mechanisms”. 

Thus, envisaging effective extrajudicial mechanisms can solve the issue of overload of courts and create favorable conditions for the protection of human rights.

Enshrining the crucial importance of the right to judicial protection, as well as its recognition in constitutional and international norms, it is still necessary to record the approach of domestic and international instances, according to which, extrajudicial means of protection of rights are essential in terms of recording and eliminating violations in the initial stage. To reach that aim, extrajudicial means of protection of rights must be effective and accessible and must contribute to good governance. 

In the regulation of the act envisaging an amendment and an addendum, a situation is created, according to which, the case proceedings of litigation of administrative acts, actions or inaction by bodies (and their officials) subject to the Prime Minister or the Government, as well as by governors, shall be investigated and a relevant decision shall be made by the same administrative body. This contradicts the essence and logic, as well as the vital and most important principle of hierarchy of the institute of appeal as defined RA Constitutional Court in the decision DCC-719. Moreover, as a result of the envisaged legal regulation, additional guarantee of effectiveness and objectivity is not ensured, since in the conditions of the existence of a superior administrative body, the administrative act is reviewed by the body which adopted that very act. Is it possible to expect objectivity and impartiality when an administrative body reviews an administrative act adopted by itself? In the condition of such a legal regulation, there will definitely be a lack of at least the objective criterion of impartiality, i.e. sufficient guarantees eliminating reasonable doubts in that matter[5].

According to RA Law “On fundamentals of administration and administrative proceedings”, proportionality of administration means that administration shall pursue the aims set by the Constitution and laws of the Republic of Armenia, and the means for achieving these aims shall be suitable, necessary and moderate [6]. According to Article 78 of the RA Constitution, “The means chosen for restricting basic rights and freedoms must be suitable and necessary for achievement of the objective prescribed by the Constitution. The means chosen for restriction must be commensurate to the significance of the basic right or freedom being restricted”.

The interference in the right must be necessary in a democratic society. For the interference to be necessary, it must meet the requirement of urgent social need, and at the same time be proportional to the legal aim pursued [7]. This means that the interference must be based on justified reasons, which shall be both appropriate and sufficient [8]. The principle of proportionality is particularly important [9], as the proportionality of means employed in relation to the legitimate aim pursued is the corollary of a democratic society [10]. This concept is especially important with regard to human rights derogations, whether the latter are temporary or permanent[11].

The right to appeal to a superior body ensures a balance in the relations between a citizen and the body carrying state governing powers. By defining two types of appeal, a violation of the principle of proportionality occurs, since the procedure of appealing to a superior body has a counterbalance nature by not allowing the administrative body to make arbitrary and illegal acts. Also, the body (or the official) that took illegal actions or manifested inaction cannot properly examine the appeal brought against them. Elimination of the examination of an appeal made to a superior body contradicts the essence of the right to proper administrative action [12] , creating legal risks in terms of the exercise of a person’s right to have cases related to him/her investigated impartially, fairly and in a reasonable timeframe by administrative bodies.

RA Law “On fundamentals of administration and administrative proceedings” also provides for the ground and the procedure of making an administrative appeal. In particular, the interfering provisions of related administrative acts, as well as the action or inaction of an administrative body may be appealed by persons (for the purpose of protection of their rights) in administrative or judicial procedure (the administrative appeal shall be made to the body who adopted the act or to a superior body)[13]․

It is obvious that there is discrepancy (a violation of the principle of certainty [14]) between the regulations of the two laws, as a result of which the right to an effective remedy cannot be effectively exercised.

The RA Constitutional Court has touched upon the principle of legal certainty in a number of decisions, “…in terms of legal certainty, the concepts used in the Constitution must be precise, definite and must not lead to different interpretations or confusion[15]”. The European Court of Human Rights mentioned that “guarantee of the predictability, precision and certainty of law is aimed at preventing the risk of arbitrariness” [16]. Therefore, there is a contradiction between Article 70 of the RA Law “On fundamentals of administration and administrative proceedings” and Article 7.1 of the RA Law “On State administration system bodies”. And the contradiction is that according to one law, administrative acts, action or inaction of bodies subject to the Prime Minister or the Government and the officials of the mentioned bodies, as well as governors, may be appealed also to a superior body, and according to the other law, they can be appealed only in a judicial procedure or by applying to that body. In terms of legality, introduction of such law enforcement practice is also incomprehensible, as the procedure of appealing to bodies subject to local self-government bodies or ministries (as to superior bodies) is maintained [17]․ In such a condition it is inadmissible to use a norm restricting a person’s rights in case when in other similar cases another procedure is applied. 

Based on the aforementioned, we propose to replace the phrase “the body who adopted the act” with “superior administrative body” in the first part of Article 7.1 of the RA Law “On state administration system bodies”.

Helsinki Citizens’ Assembly-Vanadzor presented the legislative proposal to the RA National Assembly and RA Ministry of Justice.