The first part of Article 233.1 titled "Leaving the Cassation Appeal without Examination" states: "The cassation appeal is left without examination if... the cassation court has already made a decision on the same case based on the grounds indicated in the appeal."
The applicants submitted a cassation appeal, which was returned by the decision of the cassation court, and a five-day period was set from the moment of receiving the decision to correct the formal errors of the cassation appeal and to re-submit the cassation appeal.
The cassation appeal re-submitted by the applicants was left without examination by the decision of the RA Cassation Court on the grounds that the applicants, while eliminating the formal errors recorded by the RA Cassation Court, simultaneously allowed a new error, that is, they re-submitted the cassation appeal on the same grounds for which the Cassation Court had already made a decision.
In order to resolve the constitutional legal dispute in the case, the Constitutional Court of the Republic of Armenia addressed the following questions:
- whether the failure to mention all deficiencies related to the cassation appeal in the decision of the Cassation Court on returning the cassation appeal violates the right to judicial protection and fair trial guaranteed by the Constitution of the Republic of Armenia,
- whether discovering new deficiencies in the re-submitted appeal within the established period after eliminating the deficiencies pointed out by the Cassation Court and leaving the appeal without examination on that basis does not hinder the right to judicial protection of the individual as guaranteed by the Constitution of the Republic of Armenia and the European Convention on Human Rights to the extent that the individual is deprived of the opportunity for effective judicial protection,
- whether the systemic relationship between the decisions of the Cassation Court on returning the cassation appeal and leaving the appeal without examination, in accordance with the interpretation provided in legal practice, ensures the necessary balance of appeals in cassation, ensuring the effective realization of the individual's right to judicial protection.
The Constitutional Court of the Republic of Armenia noted that the provision of a one-month period by the legislator is a sufficient condition for identifying and indicating all deficiencies related to the cassation appeal, and the provision of the second part of Article 233 of the Code, which states that "the cassation court makes a decision on returning the cassation appeal within one month from the moment of receiving the case in the cassation court, indicating the existing deficiencies," implies that all deficiencies related to the submission of the appeal that serve as grounds for returning the appeal must be indicated in the decision on returning the cassation appeal.
Addressing the question raised by the applicants regarding whether the decision of the Cassation Court on returning the cassation appeal can be viewed as a decision already made by the Cassation Court on the same grounds indicated in the appeal, it was noted that the decision of the Cassation Court to leave the appeal without examination on the grounds that the Cassation Court had already made a decision on the same grounds does not relate to the decision on returning the cassation appeal because the grounds of the cassation appeal cannot be addressed in the decision on returning the cassation appeal, as they do not become the subject of examination at that stage of the proceedings.
In particular, within the framework of the judicial protection of individual rights and freedoms arising from Articles 61 and 63 of the Constitution of the Republic of Armenia, the Constitutional Court found that: "... no particularity or procedure can hinder or prevent the effective realization of the right to appeal to the court, nullify the right to judicial protection guaranteed by the Constitution of the Republic of Armenia, or constitute a prohibition on its realization".
The European Court of Human Rights has stated in numerous judgments that the requirements presented to the cassation appeal are intended to ensure the best administration of justice; however, the excessively formal approach of national courts to the formulation of appeals can lead to a violation of the right to access to court. Not accepting a cassation appeal on the grounds of it not being clearly formulated, according to the ECHR, can lead to a violation of Article 6 of the European Convention on Human Rights (Case of Reichman v. France, application no. 50147/11, 12/07/2016):
The Constitutional Court of the Republic of Armenia finds it necessary to note that it follows from the case law of the ECHR that unnecessary formalism should be avoided, "but at the same time not to be excessively flexible so that the requirements presented to the cassation appeal do not become meaningless" (Case of Dumitru Gheorghe v. Romania, application 33883/06, 12/04/2016):The Constitutional Court of the Republic of Armenia has found that within the framework of the current legal regulations, the appeal returned by the Cassation Court and re-submitted is considered to be presented in accordance with the established procedure, provided that the appellant has eliminated all deficiencies and formal errors pointed out by the Cassation Court within the established period. Otherwise, the appeal should be considered as a completely new appeal, regarding which the Cassation Court must make any decision provided by the Code. In such circumstances, the Cassation Court will not be obliged to make a decision to leave the appeal without examination based on the principle of stability after the appeal has been returned and re-submitted with formal errors on the grounds that the Cassation Court has already made a decision on the same grounds indicated in the appeal.
It has been decided that the second part of Article 233 of the Civil Procedure Code of the Republic of Armenia is in accordance with the Constitution of the Republic of Armenia in such a constitutional-legal content that the decision on returning the cassation appeal must indicate all existing deficiencies related to the cassation appeal that are grounds for returning the cassation appeal according to the law and after correcting which the appeal will be considered to be presented in accordance with the established procedure.
The fifth point of the first part of Article 233.1 of the Civil Procedure Code of the Republic of Armenia is in accordance with the Constitution of the Republic of Armenia in such a constitutional-legal content that the decision on returning the cassation appeal cannot be considered as a decision already made by the Cassation Court on the same grounds indicated in the appeal.