I have appealed to the Constitutional Court regarding the manual assignment of court cases: Arman Tatoyan

Today, I appealed to the Constitutional Court regarding the manual assignment of court cases, which has disrupted the objectivity of case distribution among judges and primarily endangered the constitutional right of every person to an impartial trial by an independent court. This was stated by Armenia's Human Rights Defender Arman Tatoyan on his Facebook page.

“I challenge, in particular, the provisions of the Judicial Code and the decision BDC-16-N-6 of the Supreme Judicial Council. The Judicial Code stipulates that the distribution of court cases must be done through a computer program (automated system) as the main method of case distribution, and according to the law, an exception can only be made in one case—if there is insurmountable force and as a result of that insurmountable force, the distribution of cases cannot be carried out through the computer program. In other words, the law has set a high threshold for the exception to be met. And only in this exceptional case does the Judicial Code allow the distribution of court cases to be carried out in a non-computerized or non-automated manner by presidents of individual courts. However, even in this case, as the law stipulates, the cases must be distributed among judges evenly by the court president according to the alphabetical order of the judges' surnames.

The presence of the mechanism for distributing cases among judges through a computer program is determined by the necessity of ensuring the high protection of values that the automated system is called to guarantee. That is to say, a system that excludes human discretion. This concerns the impartiality and independence of judges, which are directly related to the constitutional rights of individuals—ranging from the right to a fair trial to personal freedom (for instance, the legality of arrest or detention) and personal and family life (for example, monitoring of phone conversations or correspondence).

The issue is that since July of this year, during the preliminary investigation of a criminal case, the keys to the access and management of the server of the computer program for distributing cases among judges have been seized by the prosecuting authority. Due to this fact, the concept of “insurmountable force” in the Judicial Code has been practically interpreted as if we are dealing with such a force. Thus, a system for manually assigning cases among judges has been activated, which is being carried out by the presidents of individual courts. Moreover, the law does not disclose the criteria for “insurmountable force” in any way. Furthermore, the situation created has turned an exception into a rule that affects the entire judicial system of the country—let alone the fact that this fact can evidently not satisfy the threshold of insurmountability. In other words, the issue raised by the application is that there are uncertain legislative norms, and these norms have practically received such an interpretation and application that have led to problems concerning human constitutional rights. This is becoming more problematic considering that we are faced with an uncertain practical situation.

Firstly, the preliminary investigation of the criminal case is not time-limited (the seizure occurred within the framework of the preliminary investigation). The same applies to the judicial review of the same case if it has a judicial perspective. The judicial appeals related to the preliminary investigation or judicial review must also be taken into account, that is, questions subject to preliminary and subsequent judicial control. In other words, it is unclear when the seizure will be lifted or ceased, and at least approximate deadlines are not indicated. Moreover, the question of disputing or not disputing the implementation of the preliminary investigation of the said criminal case was not raised in the application of the Human Rights Defender. Regarding the Supreme Judicial Council, the application states that the collaborative work of the Human Rights Defender with the Council has been coordinated. The question is different: due to the lack of sufficient legislative norms and the practically inadmissible interpretation of these norms, it has resulted in a situation where due to the decision or intervention of the prosecutorial authority carrying out prosecution under one criminal case, the automated or electronic system for distributing or assigning cases among judges programmed for the entire justice system (criminal, administrative, civil) in Armenia has been paralyzed, leading to serious issues for human constitutional rights.

One of the issues raised in the application is also that under conditions where the automated system intended to exclude discretion and arbitrariness in the process of distributing court cases and to guarantee the right of everyone to a fair trial is not operational, the cases are distributed by the presidents of the courts without the established or functioning unified criteria and approaches, and the Judicial Code does not provide for regulations for such cases either. The situation created is also problematic from the perspective of human constitutional rights.

In preparing this application addressed to the Constitutional Court, I have made inquiries to the Supreme Judicial Council, as well as to the presidents of individual courts. Their clarifications have further strengthened our conviction that these bodies or institutions themselves have no idea when the computer program will be operational, as well as that there is not even a unified system of criteria for the presidents of the courts, which could at least minimize the risks of the “manual” assignment system. The application is also based on concerns and complaints presented to us both by those deprived of liberty and lawyers, as well as on various confidential concerns addressed to us by a number of judges.

The Human Rights Defender has also received inquiries from several international organizations (Council of Europe, UN, etc.) regarding this issue. The findings of public material observations have also been included in the basis of the application. To add to all this, the legislative regulations are so inadequate that the rules for distributing cases vested in the president of the court are not even observed due to the non-functioning of the computer program, which presents direct issues for human rights. For instance, studies indicate that the requirement for distributing court cases according to the alphabetical order of judges’ surnames is frequently not respected. In another case, the principle of random distribution of court cases is not followed. Moreover, studies show that the existing system has led to more dangerous consequences—the Human Rights Defender has been presented with information during studies that for a long time, certain judges no longer examine cases of specific categories (for instance, cases that are complex, sensitive, or of public interest)—as a result of intentionally not assigning such cases to those judges. This is dangerous not only in terms of the distinctions or “judicial isolation” between judges but also from the perspective of systemic dangers to human rights, and so on.

The application of the Human Rights Defender submitted to the Constitutional Court clearly demonstrates through specific examples and analysis based on international-legal regulations the situations and interpretations containing profound dangers for human constitutional rights—in conditions of the absence of legislative safeguard regulations, the dangerous consequences of intervention by the prosecution authority on the entire judicial system of Armenia for an indefinite period, as well as practical situations of infringement of human constitutional rights.

Accordingly, through the application directed to the Supreme Court, the compatibility of the fourth part of Article 41 of the Judicial Code and the fourth point of the decision BDC-16-N-6 of the Supreme Judicial Council and point 19 of Appendix 1 with Articles 63, 78, 79, and 81 of the Constitution of Armenia is being disputed,” Tatoyan wrote.