Petut'yun ev iravunk'
P-ISSN: 1829-023X
E-ISSN: 2738-2508
Vol. 92 No. 1 (2022)
Articles
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Articles
LEGAL ASPECTS OF THE ARMENIAN-TURKISH NEGOTIATION PROCESS
AbstractLegal aspects of the Armenian-Turkish negotiation process. -Entitled "Legal Aspects of the Armenian-Turkish Negotiation Process", this scholarly article is devoted to the study of the legal aspects of the key issues that are currently causing serious controversy, leading to conflicting approaches.
The article touches upon the peculiarities of the current process from the previous three attempts to normalize the Armenian-Turkish relations since independence, the most significant conclusions reflected in the analysis of international and domestic experts, the legal bases, the main directions of their improvement, the legal tools to avoid possible negative consequences. the role of the Diaspora in terms of conditions, etc.
According to the results of the research, a number of conclusions were put forward in line with the current process.
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Articles
THE SOCIAL CONDITIONS OF LEGITIMACY OF NORM MAKING
AbstractThe study is dedicated to revealing the peculiarities of legal organization, as well as the analysis and evaluation of the impact of legal organization in that process. Awareness and effective implementation of the legal implementation process is one of the key guarantees for improving the quality of legal acts. The practice of the Republic of Armenia in the mentioned field is lagging behind, based on which proposals are presented within the framework of this study.
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Articles
METHODOLOGICAL FEATURES OF THE DEVELOPMENT OF THE FORM OF GOVERNANCE IN THE CONTEXT OF CONSTITUTIONAL STABILITY
AbstractArticle considers issues with regard to methodological features of the development of the form of governance in the context of constitutional stability. Author concludes that while speaking on the forms of governance we are often guided by fictional perceptions, which should be overcome and cannot base reforms concerning the mentioned issue. In the result of processes of legal convergence forms of governance borrowed from each other mechanisms non-characteristic to them and from this aspect in many cases their rapprochement can be noted. From the doctrinal viewpoint author considers classical forms of governance more acceptable. At the same time, she notes that the problems of our social system, solution of which is the main reason for continuous changes of the form of governance, will not be solved in conditions of new reforms implemented by the same logic. Hence, the axis of the problem of the further improvement of the model of governance in the Republic of Armenia should be transformed from the issue of making a choice between this or that form of governance, and the main attention should be focused on improving the mechanisms of separation and balance of powers, as well as forming and strengthening constitutional and political traditions and culture.
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Articles
THE RELATIONSHIP OF DIGNITY AND THE PRINCIPLE OF PROPORTIONALITY
AbstractThe article is devoted to the investigation of the relationship of dignity and the principle of proportionality. In the article, based on the study of Constitution, the judicial practice of the the Constitutional Court, as well as foreign countries and international judicial instances, the author came to the conclusion, that principle of proportionality acts as a means of interpreting concepts that are important for determining the scope of the right to dignity. Dignity, in turn, at the stage of assessing the adequacy excludes such restrictions on the essence of fundamental human rights and freedoms, in which a person is used by the state as an instrument.
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Articles
THE PRINCIPLE OF PROPORTIONALITY
AbstractThe methodically clean, rationally comprehensible handling of the principle of proportionality is a central difficulty of all public law. Against the background of the practical importance of the principle of proportionality, which can hardly be overestimated, the article explains the four steps of the proportionality test. Examples are used to show which aspects play a role here. The examination of the principle of proportionality requires a differentiated argumentation that takes into account the particularities of the case. In this sense, the article provides guidance for the understanding and structured examination of the principle of proportionality. Based on numerous examples, the individual points of examination are explained and assistance for conclusive argumentation is shown. A concept is presented and specified on the basis of new research results, with the help of which the weighing process, which is often perceived as difficult, can be rationally structured. The paper also provides important basic knowledge on the recent discussion on proportionality.
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Articles
GENERAL CHARACTERISTICS OF THE FEATURES OF CERTAIN TYPES OF ADMINISTRATIVE PROCEEDINGS
AbstractIn the article "General characteristics of the features of certain types of administrative proceedings", the author duly conducted a comprehensive study of the legal foundations of the features of certain types of administrative proceedings, their boundaries and possible limitations. The article highlights the fundamental qualities that may be suitable for improving domestic legislation according to predictable criteria
In the article, the author put forward the following reasoned positions:
-Features of the proceeding are special rules of administration in certain areas for the effective implementation of the functions of state power.
-In certain types of proceedings, individuals are guaranteed by the fundamental provisions of the protection of rights and freedoms provided for by the Constitution and the Law "On the Basics of Administration and Administrative Proceedings”
-the legitimate purpose of establishing the features of proceeding is to improve the efficiency of administration and mechanisms for protecting the rights and freedoms of individuals in this area.
-when establishing the features of proceeding, it is necessary to observe a reasonable balance between regulations that serve the efficiency of administration and those that protect the rights and freedoms of individuals.
-the features of proceeding can be established exclusively by law or international treaties.
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Articles
THE ISSUE OF THE ENFORCEMENT OF JUDICIAL ACTS ISSUED IN RESULT OF JUDICIAL SUPERVISION OVER PRETRIAL PROCEEDINGS
AbstractFinality and compulsiveness of judicial acts is a guarantee the legal security of the state, which the RA legislator connects with the legal fact of their entry into legal force. Judicial acts issued in result of judicial supervision over pre-trial proceedings, as judicial acts that do not resolve the case on the merits, enter into force at the moment of their publication, and are binding for execution from the same moment. Judicial acts under consideration at the same time can be revised by appealation and then by cassation.
Such regulations are controversial in the context of the principle of legal certainty and the criterion of finality of judicial acts. In addition, in practice, a number of problems arise, both in terms of their implementation after and before exhausting the appeal mechanisms. Moreover, these problems will continue to exist in the conditions of the regulations of the new RA Criminal Procedure Code.
Authors have revealed and analyzed a number of issues relating to the topic. As a result of the combined analysis of the essence of legal acts made as a result of judicial supervision over pre-trial proceedings, the principle of legal certainty and the judicial review mechanisms, the authors propose two approaches as a solution of the problem and discuss the possible ways of their implementation in the RA legislation.
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Articles
PECULIARITIES OF DETENTION OF PERSONS WANTED ON A CRIMINAL CASE BEING AT THE STAGE OF TRIAL ACCORDING TO CRIMINAL PROCEDURE CODE OF RA
AbstractThe article is devoted to the peculiarities of the detention of persons wanted by a foreign state under the Criminal Procedure Code of the Republic of Armenia. The article examines the subjects having the right to file a petition for detention, the documents required for the petition, etc. The article also examines the issues arising in practice in connection with the subject composition of the submission of the relevant petition, and the proposals are suggested for the corresponding amendments to be included in the Criminal Procedure Code of the Republic of Armenia.
Keywords: temporary detention, detention with the purpose of extradition, the Prosecutor, the RA Ministry of Justice, etc.
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Articles
CRIMINAL PROCEDURE REGULATIONS ON DISMISSAL OF THE INVESTIGATOR FROM PROCEEDINGS ACCORDING TO THE REGULATIONS OF THE CURRENT AND NEW CRIMINAL PROCEDURE CODES OF THE RA
AbstractThe article discusses those legislative norms that allow the supervising prosecutor to dismiss the investigator from participating in criminal proceedings of the case.
Within the framework of the study were analyzed the grounds for the dismissal of the investigator from proceedings, fixed both in the current and in the new Criminal Procedure Code. The author considers acceptable the approach that any violation of the law cannot be the basis for dismissal of the investigator from the proceedings, such an approach is fixed in the new Criminal Procedure Code of the Republic of Armenia.
Within the framework of the carried out study were also identified the grounds fixed in the new Criminal Procedure Code of the Republic of Armenia for the dismissal of the investigator from proceedings, leading to a gross violation of the law.
As a result of the carried out study, the author came to the conclusion that the new Code of Criminal Procedure more specifically sets out the grounds for the dismissal of the investigator from proceedings, which will undoubtedly exclude the possibility of applying such a prosecutorial act in case of any violation.
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Articles
CHARACTERISTICS OF APPLICATION OF PRELIMINARY MEASURES IN THE PROCEDURE OF CONFISCATION OF PROPERTY OF ILLICIT ORIGIN
AbstractOne of the efficient guarantees for the seizure of assets of illicit origin is the implication of effective mechanisms for freezing and securing such assets. In contrast to civil litigation, the procedure of confiscation of property of illicit origin consists of certain successive phases, which are aimed at the examination of the property in question and if there are conditions prescribed by law, at its confiscation. The article discusses the peculiarities of the application of the means of preliminary measures in the confiscation of property of illicit origin. The paper reveals and analyzes its relation with the application of the means of securing the claim. The preconditions are met, in case of which the authorized body is entitled to take action for preliminary measures.The article presents range of issues and guidelines that the court should determine during the examination of the application thereby determining the need and scope of its implication. Taking into consideration that the assets can be frozen for a lengthy period, the assets preservation and management mechanisms during the pre-trial security measures phase have been proposed.
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CONTEXT OF LEGAL REGULATION AS BASIS FOR INTERPRETING LEGAL NORMS (ON THE EXAMPLE OF THE INTERPRETATION OF CRIMINAL-LEGAL NORMS)
AbstractNormative legal acts contain special terminology, which is often not understood univocally, evaluative concepts that require clarification in relation to a specific case, ambiguous or polysemous words and expressions that are the result of incorrect implementation of the rules of legislative technics. In addition, legal norms are interconnected, applied systematically, which require the need to identify content-logical connections between applicable norms. All these factors determine the necessity to interpret the Law.
The article is devoted to the study of one of the bases of interpretation of legal norm-the context of legal regulation. The author reveals the content of general concepts of hermeneutics, such as text, context, hermeneutic circle. The article reveals the peculiarities of the interpretation of legal texts, studies the influence of the context on understanding text of a legal norm. Theoretical analyses are combined with specific examples of the interpretation of criminal-legal norms.
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