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Name of the Republic of Armenia

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF ARMENIA

of January 27, 1999 No. PKS-152

On case "About determination of question of compliance of the Constitution of the Republic of Armenia of article 24 of the Law of the Republic of Armenia "About telecommunication"

Constitutional court of the Republic of Armenia under the chairmanship of the Chairman of the Constitutional Court G. Arutyunyan, as a part of the vice-chairman of the Constitutional Court V. Oganesyan, members of the Constitutional Court A. Gyulumyan, F. Tokhyana, G. Nazaryan, R. Papayan, V. Pogosyan, V. Saakian, M. Sevyan,

with participation:

applicants - representatives of 72 deputies of National Assembly of the Republic of Armenia of E. Egoryan, And Sadoyan and V. Hachatryan,

the defendant party - plenipotentiaries of National Assembly of the Republic of Armenia, the Minister of Justice of the Republic of Armenia D. Arutyunyan, the Minister of mail and telecommunication of the Republic of Armenia A. Vardanyan, the representative of the President of the Republic of Armenia, the Minister of economic and structural reforms of the Republic of Armenia V. Avanesyan attracted as the specialist of the head of the department of the Yerevan institute of the national economy, the Doctor of Economics, professor Yu. Suvaryan

according to Item 1 of Article 100 and Item 2 of article 101 of the Constitution of the Republic of Armenia, Item 1 of Article 5, to Item 2 of Article 25 and article 55 of the Law of the Republic of Armenia "About the Constitutional Court",

Having heard the message of the speaker on case, the member of the Constitutional Court of the Republic of Armenia A. Gyulumyan, explanations of agents of the parties, the conclusion of the specialist, having researched the Law which is consideration subject and other documents which are available in case, having estimated literal sense of the Law and the developed law-enforcement practice, the Constitutional Court of the Republic of Armenia

ESTABLISHED:

This Law establishes the legal basis of implementation of activities in the field of telecommunication in the territory of the Republic of Armenia, competences and responsibility of her participants, and also regulations of protection of the rights of persons using services of telecommunication (the Art. 1).

2. The party applicant considers that article 24 of the Law of the Republic of Armenia "About telecommunication" does not correspond to the Constitution of the Republic of Armenia, in particular to the provisions enshrined in article 8 of the Constitution of the Republic of Armenia about freedom of economic activity and the free economic competition guaranteed by the state.

3. The defendant party considers that the specified provision of the law does not contradict the Constitution of the Republic of Armenia as the question concerns natural monopoly, and restrictions of the free economic competition in the field of telecommunication aim to improve by means of foreign investments communication condition in the territory of the Republic and to provide technical progress in this area.

4. Article 24 of the Law of the Republic of Armenia "About telecommunication" which is entitled "Transitional provisions" determines: "The license N 60, provided by the Ministry of Communications of the Republic of Armenia and approved by the order of the Government of the Republic of Armenia N 218 of June 25, 1997, issued before adoption of this Law to Armenia Telefon Company private company (Armentel), being the legal owner of general interconnected network of telecommunication of the Republic of Armenia, on activities in the field of telecommunication for a period of 15 years, and certifying exclusive rights of Armentel on rendering services of high-frequency video transfer in networks of telecommunication (including cable television) remains in force according to this Law and conditions of the license. Action of the rights established by the specified license shall be provided with the legislation of the Republic of Armenia (including - the antitrust law)".

5. The legal analysis of provision of article 24 of the Law on preserving in force of the license N 60, granted by the Ministry of Communications and approved by the order of the Government, demonstrates that the legislator established not the obligatory regulation regulating legal relationship, and actually, having ratified the license conditions established from the executive authority for the specific right subject allocated them with Law force.

Proceeding from requirements of article 55 of the Law of the Republic of Armenia "About the Constitutional Court", in case of determination of compliance of the Constitution of provisions of article 24 of the Law of the Republic of Armenia "About telecommunication", the Constitutional Court shall assume as a basis:

* type of the legal act;

* acceptance date, signings, editions and observance of procedure for enforcement of the legal act;

* content of regulations of the legal act;

* need of protection, free implementation of the rights and freedoms of man and citizen affirmed in Constitutions, limits and the bases of their admissible restriction;

* the principle of separation of the authorities provided by the Constitution;

* admissible limits of powers of state bodies and officials;

* need of ensuring direct operation of the Constitution.

6. Determining in article 24 of the Law of the Republic of Armenia "About telecommunication" that "Action of the rights established by the specified license shall be provided with the legislation of the Republic of Armenia (including - the antitrust law)" (the similar legislation essentially was absent at the time of adoption of this Law), the legislator actually, giving to the provision of the law characteristic the constitutional regulation of line, predetermines contents of the laws regulating this sphere.

According to part three of article 62 of the Constitution of the Republic of Armenia powers of legislature are established by the Constitution which did not give to National Assembly of the Republic of Armenia authority of adoption of the laws containing regulations of the constitutional nature.

a) the license granted by the Ministry of Communications of the Republic of Armenia does not conform to the requirements established by the resolution of Council of Ministers of the Republic of Armenia of March 5, 1997 N 161 "About procedure for occupation types of economic activity in the territory of the Republic of Armenia";

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