a)  Armenia / b)  Constitutional Court / c) / d)  27-05-2008 / e)  DCC-754 / f)  Conformity with the Constitution of Article 231.1.4 (Article 233.4) of the Civil Procedure Code of the RA / g)  Tegekagir (Official Gazette) / h) .
Keywords of the systematic thesaurus:
Institutions - Judicial bodies - Procedure.
Institutions - Judicial bodies - Decisions.
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.
Keywords of the alphabetical index:
Appeal procedure / Cassation appeal, imperfection, correction, right / Res judicata.
A person who appeals to the Cassation Court must be entitled to remove the imperfections of the appeal and apply to the Cassation court again within the three-month period proscribed in legislation for the lodging of an appeal. This remains the case if the Cassation Court has not determined a time limit for removing the imperfections of the appeal.
The applicant lodged a complaint with the Constitutional Court, challenging certain provisions of the Civil Procedure Code. According to these provisions, if the Cassation Court decision did not allow time to remove the imperfections of the appeal, the applicant would be unable to lodge an appeal again with the Cassation Court. This would remain the case, even where the three-month period stipulated by law for lodging an appeal had not expired.
The Constitutional Court examined the legislative regulations on returning suit, appeals and individual complaints as set out in the Civil Procedure Code, the Administrative Procedure Code and the Law on Constitutional Court. It concluded that, logically, imperfections of suit, appellate appeal or individual complaint should not impede their admission for consideration and prevent the effective implementation of the right of access to court. The above reasoning stemmed from the necessity to guarantee access to court. Under this legal regulation, once an individual has removed the imperfections noted by the Court, he or she can lodge an application again. The opportunity to lodge an application again is independent of the discretion of the competent court. A party to proceedings has an effective remedy against a decision by the Court to return a suit, appellate appeal or individual complaint. There is provision within the legislation to lodge an appeal against such decisions.With respect to the appeal to the Cassation Court under consideration here, the opportunity to remove its imperfections depended on the discretion of the Cassation Court. There was no effective protection remedy should that discretion be arbitrarily employed. Thus, the implementation of the norm in dispute could give rise to situations where imperfections in the appeal might lead to interference with the exercise of an individual's right to appeal against a court decision and, accordingly, the right of access to courts. This would run counter to the logic at the heart of the above regulations.
The Constitutional Court noted the practical considerations surrounding implementation of the disputed norm, and the lack of "fully-fledged" legal guarantees of legal and non-arbitrary execution of the Cassation Court's power to determine a time period for the removal of imperfections of appeal. Lack of such guarantees meant that there was no effective remedy against a decision by the Cassation Court to return the appeal. The Court therefore ruled that the norm posed a legal obstacle to the exercise of the constitutional right to judicial protection by the Cassation Court.
The Constitutional Court also undertook a constitutional review of the challenged provision, together with Article 68.9 of the Law on the Constitutional Court. Under this provision, the same individual only has the right to lodge an appeal with the Cassation Court against the same judicial decision on one occasion.
The Constitutional Court ruled that the principle "a matter already adjudicated upon cannot be raised again" (res judicata), which is well known in international law, had been expressed in the above norm in a distorted fashion, and in a way that was not appropriate to the aim of that principle. The rationale behind the norm was not the prevention of res judicata, but it interfered with the fully-fledged and effective exercise of an individual's right to lodge an appeal with the Cassation Court.