Helsinki Citizens’ Assembly-Vanadzor

On April 10, 2024, the draft laws "On Amendments and Additions to the RA Civil Procedure Code" and "On Amendments and Additions to the RA Administrative Procedure Code" (hereinafter referred to as the Drafts) were put up for discussion on the Unified Website for Publication of Legal Acts Drafts. We, the undersigned organizations, have studied the Drafts in question and consider some of the proposed changes to be problematic and concerning, as they create a high likelihood of disproportionately restricting the rights of litigants. 

We present the three main problems identified by the study of the projects below.

1. The Drafts propose to grant courts the authority to impose judicial fines through final or case-resolving judicial acts, or through decisions rejecting the acceptance of claims, in cases where a party has maliciously filed unfounded claims, appeals, or cassation complaints, or has otherwise abused procedural rights, provided that the fact of abuse of rights has been established by the relevant judicial act. 

It is obvious that the mentioned legal regulation provides strict evaluative grounds for applying judicial sanction to the persons participating in the case, in particular, the term "groundless claim or complaint" or especially the term "impairing the rights by other judicial behavior" can be interpreted quite broadly. In practice, under the mentioned concepts, it is possible to understand the use of almost any procedural right, the proposed provision of the Project does not provide for any criteria for evaluating the bad faith. We believe that although the objective of applying judicial sanctions in general according to the judicial code may be the protection of the authority of the judiciary, the implementation of the stated objective cannot obviously endanger the full realization of the right of the trial participants to a fair trial and other rights derived from it.  

2. The drafts also propose to establish a new type of judicial sanction, a restriction on the exercise of the right, which can be applied. In case of regularly abusing the right to: 1) get acquainted with the case materials, receive their copies, make extracts, photographs, photocopies and copies, 2) express an objection, 3) present evidence, 4) ask questions to the trial participants, 5) submit petitions, 6) present a position.

As mentioned in the previous point, this legal regulation also creates high risks in terms of unjustified restriction of the rights of the persons participating in the case. In particular, the provided regulation provides for only one measurable criterion to consider the grounds for applying a judicial sanction established, that is, the frequency of exercising the right, but no measurable criterion is provided for evaluating the subjective side of the act, that is, the maliciousness of the litigant. We also believe that it is definitely possible to set such standards. In that regard, we suggest: 1. To establish the basis for assessing the act of familiarization with the materials as abuse is to apply for regular presentation of the same materials or all the materials of the case, or to exercise the said right as a basis for periodically postponing the examination of the case, 2. in terms of objecting, doing so on the same basis, 3. in terms of presenting evidence, regularly presenting evidence not relevant to the case (taking into account that it would be a direct violation of the right to a fair trial in general to limit their presentation in any way, except for trial stages and terms), 4. in terms of asking questions to the participants of the trial, asking similar or unrelated questions, 5. in case of submission of petitions, submitting petitions on the same basis or demand or regularly submitting petitions at a stage not defined by law, 6. in terms of expressing a position, actually presenting positions with the same content on the same issue.

3. Along with the above, the RA draft law "On Amendments and Additions to the Civil Procedure Code of the Republic of Armenia" proposes to provide a provision defining the mandatory presence of the trial participants at the court session in some cases, setting a court fine as a consequence for violating it. Along with the above, the RA draft law "On Amendments and Additions to the Civil Procedure Code of the Republic of Armenia" proposes to provide a provision defining the mandatory presence of the trial participants at the court session in some cases, setting a court fine as a consequence for violating it. We find that the mentioned regulation is also not legal, because it directly violates the principle of management of using procedural rights and judicial remedies.

In particular, although it is generally understood that the purpose of the proposed regulation is to maximize the versatility of the trial and thus to serve the interests of justice to the maximum, it is clearly illegitimate to the extent that it is for the plaintiff to initiate and defend a lawsuit and for the defendant to object to it is a right, not an obligation, and if they do not take advantage of all procedural opportunities to exercise this right, including not appearing at the court session to provide the necessary clarifications, they may suffer the negative consequences of an unfavorable court decision (increasing the probability of its occurrence) in appearance, but in essence they cannot be obliged to participate in civil proceedings by providing physical presence. We believe that in terms of achieving the goal of the proposed regulation, a more suitable and proportionate measure proposed by the draft may be to provide clarification to the court in cases where it is necessary for the party to do so and to establish the obligation to notify about possible adverse consequences in case of non-appearance. At the same time, defining the possibility of adopting a corresponding adverse judicial act for the party in case of proper notification and failure to appear without a valid reason, for example, leaving the claim without examination or rejecting it if the plaintiff's failure to provide explanations objectively precludes clarifying the basis and subject of the claim and, consequently, its examination. 

Based on the previously mentioned arguments, we suggest:

• to exclude from the drafts the provisions defining the possibility of applying a court fine in cases of filing an ungrounded lawsuit, appeal or cassation appeal or abusing the rights by other procedural behavior in bad faith;

• based on the proposals mentioned in point 2: Clarify/define in the drafts the criteria for evaluating the behavior that is the basis for the application of the judicial sanction of restriction of the exercise of the right.

• based on the proposals mentioned in point 3, to re-edit the RA draft law "On Amendments and Additions to the Civil Procedure Code of the Republic of Armenia", excluding from it the possibility of applying a judicial sanction to the party for not appearing at the court session. 

Law Development and Defense Fund

"Protection of rights without borders" NGO

Democracy Development Fund

"Transparency International Anti-Corruption Center" NGO

Helsinki Citizens’ Assembly Vanadzor