On November 11, 2021, in the court of general jurisdiction of the Shirak region of the Republic of Armenia, a court hearing was held on the claim of Araksi Asatryan against Artak Asatryan on childcare and upbringing.
Before getting to the heart of the litigation, here is a quick overview of the impact of the court on the monitoring process:
Before the start of the court session, the judge was informed by the secretary of the court session about the intention of the ISHR observer to take photographs and told the observer that he would give permission to take photographs if the parties did not object. However, after the start of the court session, the Court did not consider this issue, violating the requirement of part 9 of Article 144 of the RA Civil Procedure Code, which made it impossible to take photographs of the court session.
The court session opened later than the appointed time, which contradicts the requirements of Article 143 of the RA Civil Procedure Code.
The court session was attended by representatives of the defendant and the third party – the Guardianship Commission. The plaintiff and her representative were absent. Since the plaintiff’s representative applied to the court with a request to postpone the proceedings due to being on unpaid leave (for 20 working days from November 4, 2021), the court, observing the requirements of Articles 146 and 156 of the RA Civil Procedure Code, after hearing the opinion of the defendant’s representatives and a third party, made a decision to postpone the hearing.
Before the adjournment of the hearing, the representative of the third party provided the court with an opinion on the examination of the living conditions of the plaintiff and the defendant, the content of which the court did not consider due to the absence of the plaintiff.
It should be noted that after the decision on the acceptance of the statement of claim for proceedings, about seventeen months have passed, and during all this time only seven hearings were appointed. The case is still at the preliminary trial stage, although Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that everyone in the event of a dispute about his civil rights and obligations (…) has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Within the meaning of the decision No. 98 of the Council of Chairmen of RA Courts: “The essence of a “reasonable time” presupposes the issuance of a judicial act within a reasonable time, which eliminates the uncertainty in which a person is in connection with his civil status (…). In civil cases, urgency may be required, especially if the dispute is specific in nature or the resolution of which is important to the applicant. An example of this is civil cases involving child custody disputes.” This position is confirmed by the practice of the ECtHR. The Court notes that it is imperative that custody cases are dealt with as soon as possible (“Hokkanen v. Finland”, judgment of September 23, 1994, paragraph 72), especially when this may have irreversible consequences for the relationship between parents and children (“Tsikakis v. Germany”, judgment of February 10, 2011, paragraphs 64 and 68).
In the opinion of the Council of Court Chairman, the case-law of the ECtHR confirm that when assessing the fact of violation of the requirement for a reasonable time of consideration of the case, only objective reasons are taken into account. Otherwise, the workload of the courts, the inexperience of judges, the imperfection of the judicial system or the legal system as a whole, as well as the behavior of the participants in the case cannot be considered an objective reason for the delay in the consideration of the case.
The court announced the time of the next court hearing, which will take place on December 15, 2021.