On the 21st of March, the Venice Commission has published the opinion on the draft laws on making amendments to the Constitutional Law on the Judicial Code and to the Constitutional Law on the Constitutional Court.
Please, see the full text of the opinion, some background and the Conclusion of the Venice Commission below.
By letter of 16 December 2021, Mr Karen Andreasyan, Minister of Justice of Armenia, requested an opinion from the Venice Commission on the draft Laws on making amendments to the Constitutional Law on the Judicial Code and to the Constitutional Law on the Constitutional Court (CDL-REF(2022)003).
One of the issues that still needed to be dealt with on the Armenian Government’s agenda of legal and judicial reforms was the “vetting of sitting judges”. This was to be done by neither introducing a separate new law on this issue nor by amending the Constitution. It was to be done by simply referring to existing Article 164.6 of the Constitution (on the status of judges), which allows the introduction of further incompatibility requirements for judges to be added to the Law on the Constitutional Court and to the Judicial Code. This would serve as a basis for a vetting mechanism for sitting judges.
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This led to the introduction of a new “incompatibility requirement” for sitting judges in the Constitutional Law on the Judicial Code and in the Constitutional Law on the Constitutional Court, which reads as follows:
“a deliberate violation by a judge of a fundamental human right, which was asserted by the act rendered by an international court or another international institution of which the Republic of Armenia is a party, and if fifteen years have not elapsed since the act of an international court or another international institution of the Republic of Armenia is a party came into force.”
Conclusion of the Venice Commission
86. The Venice Commission welcomes the Armenian authorities’ intention to reform the judiciary. It also understands the motivation behind the preparation of the Draft Amendments, notably to free the judiciary of judges who, in the past, had committed serious human rights violations and thus undermined the general public trust in the judiciary.
87. The Venice Commission does not see the need for new preventive measures, as they already seem to exist in the current Judicial Code, which provides strong grounds to hold judges liable for the violation of human rights which take place in the future. In addition, the new Criminal Code (Article 482), which will enter into force on 1 July 2022, as well as the old one, which is currently still in force (Article 352) provide criminal sanctions for obviously unjust judgments or other judicial acts, delivered for “mercenary purposes” or for other personal interest. Although this will not cover all cases of human-rights violations by judges, these norms provide sanctions at least for the most serious and obvious cases.
88. There is also a general concern with regard to the positioning of the new incompatibility requirement within the Judicial Code (Article 5, Part 1) and the essence of incompatibility requirements (Article 164.6 of the Constitution). The new “incompatibility requirement” is a deliberate violation of a fundamental human right which constitutes a violation of incompatibility requirements. However, incompatibility requirements are barriers to engaging in activities other than the judge’s professional activity, which is also in line with the international legal approach. It is therefore questionable whether draft Article 86, part 3 and Article159, part 2, of the Judicial Code and Article 12, part 2, of the Law on the Constitutional Court, fit into this practice.
89. However, if these Draft Amendments are to be adopted, there are several concerns that need to be addressed:
• The term “deliberate violation”: it is important that a judgment of the ECtHR against Armenia not be used as the sole basis for a judge’s liability. Liability should only be based on a national court’s or the Supreme Judicial Council (acting as a court)’s finding of either intent (deliberateness) or gross negligence on the part of a judge. In addition, the word “deliberate” has been used whereas the word “intentional” is used in other Armenian legislation, including the Judicial Code and is a defined term. The use of two different terms raises concerns with respect to legal certainty as it is not clear whether the new requirement will be the same as the older one in the Judicial Code. This needs to be clarified.
• The term “fundamental human right”: these fundamental human rights must be clearly defined in the Draft Amendments as those stipulated in international treaties to which the Republic of Armenia is a party, including the ECHR. The Draft Amendments should introduce a high threshold defining the level of violation or introduce graduated sanctions to not have all violations end with the termination of the powers of a judge. For the latter sanction, the threshold must be a violation which has resulted in a fundamental breach of human rights and/or freedoms (in accordance with the definition in Article 142, part 6 of the Judicial Code) and has been committed deliberately or with gross negligence, i.e., which is clearly incompatible with the judicial office.
• The term “international court or another international institution”: to ensure clarity, if by “international court” the ECtHR is meant, then this should be set out explicitly in the Draft Amendments. The international institutions concerned
must also be clearly enumerated. Otherwise, this part should be deleted.
• The term deliberate violation “by a judge”: this raises, but does not answer, the question of attribution i.e. who (which judge) can be held accountable. This is especially difficult in cases where decisions are rendered by chambers of judges. This needs to be explicitly addressed.
• Procedure: which are the procedural rules that will apply to the proceedings that lead to the termination of powers of a judge on the basis of this new incompatibility ground? This needs to be provided in the Draft Amendments, because, regardless of the mutatis mutandis clause provided in Article 159, part 1 of the Judicial Code, it remains unclear what procedures and which criteria the Supreme Judicial Council and the Constitutional Court will follow in order to qualify the violations as intentional/deliberate. That should be clarified.
• Retroactive legislation: retroactive legislation should be excluded altogether to ensure that it does not create yet further possible challenges against the Armenian state before the ECtHR. Although not strictly speaking a violation of European standards, it will need to prove “compelling grounds of the general interest” or “public-interest considerations” and meet the requirement of foreseeability.
Directorate of Communications
Council of Europe
