CESJA or Court?

Photo: http://thenationaldawn.com
Photo: http://thenationaldawn.com

Two words

Every day numerous drivers are fined for violations of traffic rules in Armenia. If once traffic police officer (hereinafter referred to as the TP) only was stopping the car and writing a report on a violation, then today, besides TP, the violations are recorded by cameras and speedometers. Thus, violations recorded by cameras and speedometers TP sends to the Compulsory Enforcement Service.

During this analysis we will address the question whether it is legitimate to send violations of traffic rules (hereinafter referred to as the TR) at once to the Compulsory Enforcement Service taking into account the 4th part of 60th Article of Constitution according to which no one can be deprived of property, except for cases prescribed by law.

Former and present settings

Previously, this issue was settled in such a way that the TP issued a decision to pay a fine to a Civil Court, regardless of the victim’s counterclaim. The reason was the working together with civil and administrative courts. In its turn, the Civil Court in case of not filing a counterclaim against the decision issued a writ sending it to the Compulsory Enforcement Service. Later, when an Administrative Court was established, this jurisdiction was granted to the Administrative Court. But this procedure was amended, and the jurisdiction was immediately issued to the Service for Enforcement of Judicial Acts. This procedure implies that the legislator removed the head of the enforcement proceedingi from administrative proceedings, considering it ineffective, and the other reason was the burden of the courts. This procedure implies that the legislator removed the chapter called enforcement proceedings from the administrative proceedings considering it ineffective, and the other reason was the overload of courts.

Since 2014, TP Acts have been immediately sent to compulsory enforcement. According to the provision 1 of Article 1.1 of the law 88 on ”Fundamentals of Administration and Administrative Proceedings” of the RA the implementation of the public monetary has been appointed in accordance with the procedure established by the Code of Administrative Procedure of the Republic of Armenia, on the basis of the verdict issued by the decision and entered into legal force, if the monetary claim payable by an individual on the basis of indisputable administrative acts exceeds 200.000 drams.

Anti-constitutionality

The problem is that according to the 4th part of the Article 60 of the RA Constitution, no one can be deprived of his property, except for cases prescribed by law, and granting this authority to CESJA Body contradicts the Constitution. If we analyze the situation from the viewpoint of the right’s hierarchy, then the Constitution has supreme power and highest legal value over all other legal acts. Thus, in case of controversy, the preference is given to the Constitution.

Thus, if the CC found that the change was of technical character, that is, this authority belonged to the CESJA Body then why did not the Article 31 of the Constitution of the RA change its meaning when implementing constitutional reforms? Instead, the change was manifested only in formal sense, by the Article number; it turned from 31 to 60. The legislator had a reasonable time limit for making changes, since the CC expressed its position on the issue in May, 2015, while the constitutional reforms in Armenia took place in December, 2015.

We think that the concept of “technical character” mentioned by the Constitutional Court is not relevant and clear as the Constitution enshrines a fundamental principle, that is, no one may be deprived of his property, except in cases of judicial proceedings. Nevertheless, if the Constitutional Court and the legislator thought that the problem was only “technical”, then it would have been better to define the CESJA Body in the Constitution. In addition, the legislator gave this authorization to the Compulsory Enforcement Service at once for the reason that the Institute of Enforcement Proceedings did not justify itself and writ issued by courts increased the overload of courts.

Comparing international experience with Armenia’s experience, it should be noted that the Article 1 of the amended Protocol No. 11 to the Convention for Protection of Human Rights and Fundamental Freedoms confirmed in Paris, on March 20, 1952, defines the provision of property protection, “Every natural or legal person has the right to use his property freely. Nobody can deprive him/her of his/her property, except for the benefit of the public and on terms provided by law and by general principles of international law.”

It is also important to note that each person has a legitimate expectation towards the decisions made by law enforcement bodies. In this case, there is a presumption that if the decision was made by TP, then it is legitimate. However, in practice, there are frequent cases when TP makes an unlawful decision. And a person, having a legitimate expectationii, without questioning the lawfulness and the legality of the decision issued by the law enforcement body, pays a fine imposed for violation of traffic rules.

Therefore, we find that the existing institute on issuing a payment order by the court should work because it gives a person another opportunity to review the TP Act and, if necessary, make a counterclaim.

Conclusion

The first thing, issuing payment orders for TP violations by courts does not have a technical character. It gives a  person the opportunity to submit a counterclaim against TP decision at once,whereas the implementation of the proceedings by CESJA prolongs the process for the alleged offender.

The second is the threshold of  200, 000 drams in the same norm, we believe that it is also a basis for recognizing this legal norm as anti-constitutional, since the property of a person is being a subject to discussion, and its total amount has no significant importance.

Third, the term “public interest” cannot be identified with the courts’ overload and the ineffective performance of the enforcement proceedings.


iProcedure for the execution of court decisions.

iiLegitimate expectation.


ՀՀ Սահմանադրություն(առ 27 նոյեմբերի 2005 թվականի փոփոխություններով),հոդված 31,

  1. ՀՀ Սահմանադրություն(առ 6դեկտեմբերի 2015 թվականի փոփոխություններով), հոդված 60,
  2. «Վարչարարության հիմունքներ և վարչական վարույթի մասին» օրենք,հոդված 88
  3. Մարդուիրավունքների և հիմնարար ազատությունների պաշտպանության մասին կոնվենցիայի՝ փոփոխված 11-րդ արձանագրություն,
  4. «ԴԱՀԿ մասին» օրենք,հոդված 2
  5. ՀՀ վարչական դատավարության օրենսգիրք,հոդված 199:

Author: Nare Smbatyan© All rights are reserved.

Translator: Anna Zakaryan.


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