Constitutional Court to decide on constitutionality of the ban on appealing Administrative Court’s rulings on cases relating to electoral law11:34, October 27, 2017 | News, Own news | Electoral Rights
On October 23, 2017 the RA Constitutional Court accepted the application of Helsinki Citizens’ Assembly- Vanadzor on declaring unconstitutional Article 213(1), RA Administrative Procedure Code.
Note that by its judgment of April 14, 2017, the RA Administrative Court recognized the right of an observation mission to challenge at the Administrative Court the fact of violating its observer’s rights. However, the Court rejected HCA Vanadzor’s and Organization observer’s claim challenging the lawfulness of the actions and decision of the electoral commission and the plaintiffs were deprived of the possibility to appeal the ruling before a higher court.
The claim filed with the RA Administrative Court was based on the rejection by the electoral commission of precinct № 14 of the application of O.A., observer accredited by HCA Vanadzor and representing ‘Independent Observer’ Alliance at polling station 14/10 in Armavir during the RA National Assembly elections of April 2, 2017.
The observer filed a complaint to the territorial electoral commission after the polling station electoral commission rejected his demand of making a record in the register on some violations committed by a person acting as an assistant for 3 times, along with identifying other violations.
The electoral commission of precinct № 14 not only rejected the observer’s complaint on the inaction by the polling station electoral commission, but also refused to make HCA Vanadzor a party to the discussion considering that the Organization’s rights were not violated.
By their claim filed with the RA Administrative Court, HCA Vanadzor Office and observer O. A. demanded declaring unlawful the actions of the electoral commission of precinct № 14, annul its decision and compel the electoral commission of polling station 14/10 to record the observer’s considerations.
The court did not process at all the claim on the part of declaring unlawful the territorial electoral commission’s actions and rejected the claim on the other part as a result of the trial proceedings, considering that there was no sufficient evidence of violation of the observer’s rights.
While the Court found that “the defendant (the territorial electoral commission) faced a certain misunderstanding between the institute of a third party and the institute of a stakeholder with the power to challenge the inaction of a relevant commission and file an application to the commission”, it still considered that in this case the observer also presented the Organization’s interests through mediation.
According to Article 213(1), RA Administrative Procedure Code, cited in the Administrative Court’s judgment, the Administrative Court’s judgments on merits on protection of the electoral law are final, not subject to revision and take effect upon announcement.
This deprives the plaintiff party of the possibility to verify in a court of appeal the actions of the first instance court and validity of the judicial act; without doing so, it is impossible to find out whether the first instance court conducted a comprehensive and substantial investigation and whether it made a correct assessment of the evidence available within the case.
In this case, HCA Vanadzor is deprived not only of the right to appeal the court’s unfair judicial act, but also of the opportunity to restore its right violated or restricted by the potentially unfair judicial act of the lower-court.
Thus, the plaintiffs’ right to a fair trial as set forth in Article 6 of the European Convention on Human Rights and Article 61 of the RA Constitution is violated and therefore Article 213(1) of the RA Administrative Procedure Code contradicts the RA Constitution.
On October 6, 2017 HCA Vanadzor applied to the Constitutional Court to declare the said provision contradicting Article 61 of the RA Constitution and declare it invalid.