The
Human Rights defender considers the draft solutions to constitutional laws
proposed by the Ministry of Justice of Armenia (“on amendments to the “Judicial
Code of Armenia”” and “on amendments to the Constitutional Court”) problematic.
The
drafts, in particular, envisage that a member of the Supreme Judicial Council,
a judge, and a judge of the Constitutional Court should be considered in
violation of the incompatibility requirements, which is the basis for the
termination of the powers, when they have committed a deliberate violation of a
fundamental human right by a decision by an international court or other
international instance, the Republic of Armenia (...).
According
to the Office of the Human Rights Defender, these legislative arrangements are
problematic: Among other reasons, the proposed draft solutions deviate from the
essence of the incompatibility requirements of the judge. These requirements
are not envisaged by the Judicial Code, according to which a judge may not hold
a position in state or local self-governing bodies that is not conditioned by
their status, any position in commercial organizations, engage in
entrepreneurial activity, perform other paid work, except for scientific,
educational and creative work. In other words, the incompatibility requirements
of a judge's activity are inherent barriers to engaging in activities other
than the judge's professional activity. In this regard, it should be noted that
envisages a set of incompatibility requirements, which refers to the
prohibition of a judge to engage in activities other than their professional
activity, is also in line with the international legal approaches.
The
next issues of concern regarding the settlement proposed by the draft solutions
refers to the "deliberate" nature of the violation registered by the
decision of an international court or other international instance where the
Republic of Armenia was a party.
The
issue of termination of the powers of a judge, a member of the Supreme Judicial
Council, and a judge of the Constitutional Court shall be resolved by the
Supreme Judicial Council, and the Constitutional Court, respectively. Thus, the
violation should be qualified as "intentional" by those bodies, which
raises a number of unresolved issues (for example, what are the procedures and
the criteria followed the Supreme Judicial Council and the Constitutional Court
to qualify the violations as intentional? In case of violation of a fundamental
human right, which of the judges who examined the case which has been through
the courts of three instances of Armenia will have their powers terminated on
the grounds of violating the non-compliance requirements? How will the share of
the fault of a judge in the registered violation be determined, including a case
examined by a judicial staff collegially?
According
to the draft solutions, the Supreme Judicial Council and the Constitutional
Court have the right to make an assessment of the circumstances of the criminal
case that need to be clarified, and to make decisions which have legal consequences,
since the violation registered by the decision of an international court or
other international instance where the Republic of Armenia was a party, is a
crime envisaged by Article 352 of the Criminal Code of Armenia (an apparent
unfair verdict, decision, or other judicial acts, which, however, is a
circumstance subject to approval within the framework of criminal proceedings
Moreover,
the regulation proposed by the drafts is in indirect contradiction with the
regulation defined by Article 142(7) of the Constitutional Law the Judicial
Code of Armenia, which prescribes that the reversal or modification of a
judicial act is not in itself a ground for disciplining the judge who made that
act. Hence, the new legislative solutions bypass the prohibitions already fixed
by the Judicial Code, a situation which is inadmissible.
In
addition to the above-mentioned, International standards and experience should
have been presented in detail in the justifications for the adoption of the
drafts, and the practical risks, and the possible negative consequences from
the international point of view (What are the solutions to the issue of
disciplining judges in foreign countries, what are their lessons or advantages?
Meanwhile,
the current justifications are general in nature and superficial.
Therefore,
the lack of justification to address the raised concerns calls into question
the need for the draft solutions, and the legality of their goals.
Therefore,
the Human Rights Defender has concluded that in the absence of justifications
and without addressing the above-mentioned concerns, the proposed draft
solutions are not acceptable.
Հայերեն
