New Decision of the Constitutional Court Regarding the Legal Practice of the Court of Cassation
- 2017-09-18
New Decision of the Constitutional Court Regarding the Legal Practice of the Court of Cassation
Reviewing the application submitted by advocates at HS Partners Law Firm Karen Karapetyan and Hayk Sahakyan, the Constitutional Court of the RA, in its decision No. ՍԴՈ-1363, dated 18 April 2017, provided important interpretations regarding “returning the appeal” and “leaving the appeal unexamined”.
In the application to the Constitutional Court we argued that the legal practice shaped by the decisions of the Court of Cassation on “returning the appeal” and “leaving the appeal unexamined” contradicts the constitution of the RA.
After examining the application submitted to it, the Constitutional Court of the RA provided the following interpretations:
1. The decision of the Court of Cassation about returning an appeal should point out all the shortcomings of the appeal. The failure to do so is a violation of the constitutional right to a fair trial.
The aforementioned means that the appeal re-submitted to the Court of Cassation must be admitted for examination if the appellant corrected all the shortcomings pointed out by the Court of Cassation in its decision to return the appeal. In other words, the Court of Cassation cannot return the appeal because of shortcomings that the court itself failed to notice and mention in its earlier decision.
2. The decision of the Court of Cassation about returning the appeal cannot be considered to be a decision on the same grounds indicated in the appeal and, therefore, shall not serve as a basis for leaving the appeal unexamined. The Constitutional Court established that, while making a decision to return the appeal, the Court of Cassation is unable to address the grounds of the appeal due to the fact that those grounds are not examined at that stage of the civil process.
3. The Constitutional Court also addressed the statements of Alvard Grigoryan and Khachik Grigoryan whose application had been joined to the present case.
The Constitutional Court established that as re-submitting the appeal after the Court of Cassation has returned it, if there are no changes in its content, there is no need to send the copies of the appeal to other participants of the case. In cases where the shortcomings indicated by the court of cassation are not related to the content of the appeal, the requirement of sending the copies of the appeal to other participant again puts an unnecessary burden not only upon the appellant, but also other participants, since the latter will need to review the same appeal one more time.
Based on the reasoning mentioned above, the Constitutional Court found that the provisions of part 2 of Article 233 and clause 5 of part 1 of Article 233.1 have been applied with respect to the applicants in contradiction to their constitutional foundations.
Note: According to Article 204.31 of Civil Procedure Code of the RA, the decision of the Constitutional Court can be a basis for reviewing the case under new circumstances for those with respect of whom like decisions have been made within the six-month period prior to the decision of the Constitutional Court.