The Venice Commission, a body of constitutional law experts of the Council of Europe has published its new opinion on the legislation related to the Ombudsman’s staff.
It was prepared upon request of the Human Rights Defender in Armenia. By letter dated 17 March 2021, Mr Tatoyan, the Human Rights Defender of Armenia, requested an opinion of the Venice Commission on the Armenian legislation related to the independence of the Ombudsman’s staff vis à vis international standards on national human rights institutions. The opinion was adopted by the Plenary session of the Venice Commission held on 15-16 October 2021.
The full text of the opinion is available here, and its conclusions are below.
Conclusion
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83. The Human Rights Defender of Armenia is an A-status Ombudsman and National Human Rights Institution NHRI with long experience in the field of protection and promotion of human rights and other specific aspects of the mandate assigned to it by the Constitutional Law. This institution, as a key player in strengthening the rule of law, democracy and human rights, can play a key role in their development and consolidation in Armenia.
84. First and foremost, the 2020 amendments by changing the legal regime of the Ombudsman institution’s staff and subjecting it to the civil service regime seems to contradict in the first place Article 39. Paragraph 3 of the Constitutional Law on the Human Rights Defender, from which it follows the Ombudsman enjoyed full independence and autonomy with regard to personnel matters and related policies.
85. The Venice Commission recommends therefore that care be taken to ensure that applicable legislative provisions subsequent to the Constitutional Law do not contradict it and effectively nullify its applicability.
86. The required independence of the Ombudsman institution is measured by the independence of its head, its staff, and its budget, both in terms of amount and of management.
87. The former articles of the Human Rights Defender constitutional law were in this regard fully in compliance with international standards.
88. The package of the 2020 amendments, even though it was intended to unify the public service system in general, could be seen as significantly reducing the independence of the Ombudsman institution in terms of the independence of the staff, in terms of the independence of the Ombudsman to recruit and implement staff policies in an autonomous manner. The 2020 reform does not recognize the unique position and status of the Ombudsman institution, according both to international standards, as well to Armenian constitutional law previous to the amendments. According to these standards, the Ombudsman institution cannot be treated as part of a “unified” civil service.
89. As it flows from the international standards cited above, the independence and efficiency of the Ombudsman institution requires the implementation of policies, which guarantee the autonomy of the recruitment processes, staff members’ career evolution and position ranking. Hence, issues related to the staff, such as independent recruitment, career policies, rank, salary, education, and training, are all part of this concept of independence.
90. These elements are therefore equally important aspects and even indicators of the institution’s independence.
91. Moreover, issues relating to the institution’s staff and rank have budgetary consequences and are therefore linked to the institution’s budget. International standards are again consistent in this respect and require to secure guarantees of independence for the budget of the institution.
92. To this end the Venice Commission recommends:
Revising the Ombudsman’s legislative framework in order to clarify and guarantee his or her full independence in staff policies, notably recruitment, career, job classification, job descriptions, etc;
Ensuring that the Ombudsman’s staff system and staff policies are based on clear criteria, linked to the specificities, functions and responsibilities of the institution. It should be avoided that staff-related issues subordinated to any other state body or agency, notably the executive power.
93. Finally, the Commission invites the legislator to take the opportunity of a possible revision of the constitutional Law on Human Rights Defender not only to implement the previous recommendations formulated in the 2006 and 2016 opinions of the Venice Commission which are still valid but also to fully implement all Venice Principles.
94. The Venice Commission remains available for any further assistance.
