GYULUMYAN AND OTHERS v. ARMENIA

Communicated on 12 November 2020

Published on 30 November 2020

FIRST SECTION

Application no. 25240/20
Alvina GYULUMYAN and Others
against Armenia
lodged on 26 June 2020

STATEMENT OF FACTS

A list of the applicants is set out in the appendix.The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.Background to the case

In 1996 the first and the second applicants, and in 1997 the third applicant, were appointed members of the Constitutional Court (“CC”) for life until their retirement at the age of seventy, according to the Constitution of 1995.

In 2005 the Constitution was amended by referendum and the retirement age was reduced to sixty-five. The President of the CC was to be elected by the National Assembly and there was no specific term set for the mandate of the President.

In 2003 the term of office of the first applicant was terminated upon her request and she was elected as a judge at the European Court of Human Rights. After eleven years of service, in 2014 she was reappointed by the President of Armenia as member of the CC for life until her retirement at the age of sixty-five.

In 2015 the Constitution was once again amended and, according to its Chapter 7, a 12-year non-renewable term of office was introduced for the judges of the CC and a 6-year non-renewable mandate was established for the President of the CC, who was now to be elected by his peers. At the same time, according to transitional Article 209 § 6, Chapter 7 of the Constitution was to enter into force on the day the newly-elected President of the Republic took office, which occurred on 9 April 2018. As regards the judges and the President of the CC appointed before the entry into force of Chapter 7 of the Constitution, according to another transitional Article 213, they would maintain their tenure pursuant to the old rules, namely until their retirement and without a limit on the President’s mandate.

On 2 March 2018 the fourth applicant, who was a Member of Parliament (“MP”) of the then-ruling party and previously the Minister of Justice, was elected as member of the CC, according to the 2005 constitutional amendments because the 2015 amendments had not yet entered into force.

On 5 March 2018 the former President of the CC resigned shortly before reaching the retirement age of seventy. The fourth applicant was elected President of the CC by the National Assembly on 21 March 2018 – three weeks before the entry into force of the 2015 constitutional amendments – under the provisions of the 2005 amendments and was to maintain his mandate of President until his retirement at the age of sixty-five, that is, until 2035.

In April-May 2018 wide-scale protests took place in Armenia, triggered by an attempt of the then twice-President Sargsyan to stay in power as Prime Minister by shifting from a presidential to a parliamentary system of governance. The old government was ousted as a result and a new transitional government formed, led by a former opposition MP, Nikol Pashinyan. A snap parliamentary election was held in December 2018 in which the former ruling party did not win any seats and an alliance called “My Step” won a landslide victory.

The new government embarked on a number of legal reforms, including a judicial reform package in consultation with the Venice Commission and the Directorate General of Human Rights and Rule of Law of the Council of Europe. The need for the proposed judicial reform was explained in terms of strong popular demand for quick and visible changes in relation to the judiciary, which enjoyed low public trust.

In 2018 and 2019 two CC judges were elected according to the 2015 amendments, that is, for a 12-year non-renewable term.Judicial reform package which resulted in the termination of tenure of the first three applicants and of the mandate of the fourth applicant as President of the CC

In September 2019 the Government approved a strategy of judicial and legal reforms and a three-year action plan. As far as the CC was concerned, the Government relied on the need to implement fully the 2015 constitutional amendments by eliminating the disparity between the various tenures of the judges through application of the 2015 provisions to all the judges of the CC without exception, regardless of the date of their appointment. This was seen as vital for improving public trust in the CC. Five years after the 2015 amendments only two CC judges had been elected in accordance with the new procedure. At first, the Government sought to achieve this aim through a voluntary early retirement scheme and relevant amendments were prepared to the Constitutional Act on the CC, which were submitted to the Venice Commission for an opinion.

However, according to the applicants, the reforms were prompted by the fact that the former President of Armenia had introduced a case before the CC.

In its 2019 Opinion, the Venice Commission gave an overall positive assessment to the judicial reform proposed by the government[1]. As regards specifically the early retirement scheme offered to the judges of the CC, the Venice Commission stated that it would not oppose such a scheme, as long as it was truly voluntary, or when it was not designed to influence the outcome of pending cases. The Venice Commission also considered it necessary to stress, as regards the disparity of tenures, that “all justices of the CC should enjoy the same status, irrespective of whether they were appointed before or after the 2015 revision of the Constitution”[2].

In December 2019, all those CC judges who had been appointed in accordance with the old procedure, including the applicants, were offered an early retirement scheme, including extra benefits such as a pension in the amount of their salaries. The relevant amendments entered into force on 27 December 2019 and provided a deadline of two months for the judges to accept early retirement. All declined.

At the same time, criminal proceedings were instituted against the fourth applicant on account of abuse of office during his time as the Minister of Justice. It appears that these proceedings are still pending.

Soon after, the ruling majority proposed amending the above‑mentioned transitional Article 213 with a view to providing that the terms of office of all CC judges who had been appointed according to the old procedure, namely prior to the entry into force of the 2015 amendments, would be terminated. On 6 February 2020 this amendment failed to receive a sufficient number of votes at first reading and the National Assembly decided to put it to a referendum to be held on 5 April 2020. The latter was cancelled because of the COVID-19 sanitary crisis.

The ruling majority then proposed a somewhat limited version of the same reform, seeking to amend transitional Article 213 in such a manner that only the mandate of those CC judges who had already served a total of 12 years would be terminated. Other judges, even if appointed before the entry into force of the 2015 amendments, would continue to serve until the completion of the 12-year term. Vacancies were to be filled within two months. The mandate of the President of the CC was to be similarly terminated, but as his 12-year term was not up, he would continue to sit as an ordinary judge. The need for this latter reform was explained by the fact that the President had been elected under the old rules, which meant that he had been elected by the National Assembly as opposed to the judges of the CC and his mandate had no limit.

The draft amendments were submitted to the Venice Commission in May 2020 for an opinion.

On 22 June 2020 the National Assembly adopted the proposed amendments to transitional Article 213, which entered into force on 26 June 2020.

On 22 June 2020 the Venice Commission published its opinion in this connection (see “Relevant international document” below.)

On 26 June 2020, pursuant to the 2020 constitutional amendments, the term of office of the first three applicants, who had already served more than 13 (7 years, 4 months, 6 days in her first term and 5 years, 10 months, 24 days in her second term), 24 and 22 years respectively, and the mandate of the fourth applicant as President of the CC were terminated. The fourth applicant remains in office as judge of the CC.

On 26 June 2020 the applicants lodged a request under Rule 39 of the Rules of Court asking the Court to indicate to the Armenian Government, inter alia, to freeze the enforcement of the constitutional amendments adopted by the National Assembly and to preserve their offices at the CC by abstaining from making new appointments.

On 8 July 2020 the Court decided to reject the request as outside the scope of application of Rule 39 and since, in any event, it did not involve a risk of serious and irreparable harm of a core right under the Convention.

It appears that on 15 September 2020 three new CC judges were elected by the National Assembly and, accordingly, took office.Relevant domestic lawConstitution (2015 amendments)

Article 61 provides that everyone shall have a right to effective judicial protection of his rights and freedoms.

Article 63 provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.

Article 164 § 8 provides that powers of a judge shall cease upon expiry of the term of his office, in the event of loss of citizenship of the Republic of Armenia or acquisition of citizenship of another State, upon entry into force of a guilty verdict against him or termination of criminal prosecution against him due to grounds for non-acquittal, or entry into force of a court judgment declaring him incapable, a missing person or dead, or in the event of his resignation or death. Article 164 § 9 provides that the powers of a judge of the CC shall be terminated by a decision of the CC, in cases of violating the incompatibility requirements, engaging in political activities, where the state of health renders the discharge of his functions impossible, or for committing a gross disciplinary offence.

Article 166 § 1 provides that judges of the CC shall be elected by the National Assembly, by at least three-fifths of the total number of votes of MPs, for a twelve-year term. The CC shall consist of nine judges: three judges shall be elected upon nomination by the President, three upon nomination by the Government and three upon nomination by the General Assembly of Judges. Article 166 § 2 provides that the CC shall elect a President and a Deputy President of the CC from among its members for a six-year term, without the right to be re-elected.

Article 167 § 1 provides that constitutional justice shall be administered by the CC, ensuring the supremacy of the Constitution. Article 167 § 2 provides that in administration of justice the CC shall be independent and shall abide only by the Constitution.

Article 168 provides that the CC, according to the Act on the CC, shall: (1) determine the compliance of laws, decisions of the National Assembly, orders and decrees of the President of the Republic, decisions of the Government and the Prime Minister, and sub-legislative normative acts with the Constitution; (2) prior to the adoption of draft amendments to the Constitution, as well as draft legal acts put to referendum, determine the compliance thereof with the Constitution; (3) prior to the ratification of an international treaty, determine the compliance of the commitments enshrined therein with the Constitution; (4) resolve disputes arising between constitutional bodies with respect to their constitutional powers; (5) resolve disputes related to decisions adopted upon the results of referendums, elections of the National Assembly and the President of the Republic; (6) decide on termination of the powers of an MP; (7) issue an opinion on the existence of grounds for dismissing the President of the Republic from office; (8) decide on the impossibility of discharging duties of the President of the Republic; (9) decide on the issue of subjecting a judge of the CC to disciplinary liability; (10) decide on termination of the powers of a judge of the CC; (11) decide on giving consent for initiating criminal prosecution against a judge of the CC or depriving him of liberty with respect to performance of his duties; and (12) in cases prescribed by law, decide on suspending or prohibiting the activities of a political party.

Article 169 § 2 provides that, in cases prescribed by point 2 of Article 168 of the Constitution, the National Assembly shall apply to the CC, inter alia, in respect of amendments to the Constitution.

Article 203 provides that Articles 1-3 and Article 203 of the Constitution shall not be amended.

Article 213 provides that the President and the members of the CC appointed prior to the entry into force of Chapter 7 of the Constitution shall continue holding office until the expiry of their term of office specified in the Constitution with the amendments of 2005. After the entry into force of Chapter 7 of the Constitution, nominations for vacant positions of judges of the CC shall be made successively by the President, the General Assembly of Judges and the Government.Constitution (2020 amendments)

Article 213 § 1 provides that the term of office of a judge of the CC, appointed prior to the entry into force of Chapter 7 of the Constitution and having served as judge of the CC for an overall term of not less than 12 years, shall be considered terminated and his service shall cease. Article 213 § 2 provides that a judge of the CC appointed prior to the entry into force of Chapter 7 of the Constitution, whose term of office does not cease under paragraph 1 of this Article, shall remain in office as judge of the CC until the expiry of his twelve-year service, taking into account the period of his term of office before and after the entry into force of Chapter 7 of the Constitution. Article 213 § 3 provides that after the entry into force of Chapter 7 of the Constitution, nominations for vacant positions of judges of the CC shall be made successively by the Government, the President of the Republic and the General Assembly of Judges. Nominations for the vacant post of a CC judge, arising on the basis of paragraph 1 of this Article, shall be made within two months after the position becomes vacant. Article 213 § 4 provides that the mandate of the President of the CC shall cease. After the post of the President of the CC becomes vacant, the new President of the CC shall be elected pursuant to the procedure set under Article 166 of the Constitution, after filling the vacancies for CC judges which arose under paragraph 1 of this Article.Constitutional Act on Rules of Procedure of the National Assembly (2017)

(a)   Before the amendments of 25 June 2020

Section 86 § 1 provides that the draft amendments to the Constitution shall be debated in the National Assembly in two readings, in the manner prescribed for the draft amendments to laws as set forth in Chapters 16-18 of the Rules of Procedure. Section 86 § 2 provides that prior to the adoption of the draft amendments to the Constitution in the second reading, the draft resolution on applying to the CC shall be put to a vote. If the decision is adopted, the Chairperson of the National Assembly shall sign this resolution within two working days and, together with the draft amendments to the Constitution debated in the second reading, shall send it to the CC. The debate of the issue shall be interrupted until the decision of the CC is received. Section 86 § 3 provides that, if the CC finds that the draft amendments are not in compliance with the Constitution, then the draft shall be withdrawn from circulation. Section 86 § 4 provides that, if the CC finds the draft amendments to be in compliance with the Constitution, the voting on the issue at the forthcoming regular sittings of the National Assembly shall be carried out after the receipt of the CC decision.

(b)   The provisions as in force now

Since 25 June 2020 the scope of ex ante review of the CC was limited to a control of conformity with unamendable provisions of the Constitution.Constitutional Act on the Constitutional Court (2018)

(a)   Before the amendments of 25 June 2020

Section 8 § 1 provides that a CC judge is irremovable.

Section 12 §§ 1 and 2 provide almost identical grounds for termination of powers of a CC judge as Article 164 §§ 8 and 9 of the Constitution.

Section 18 § 1 provides that the normal functioning of the CC shall be ensured by the President of the CC.

Section 19 § 6 provides that the President of the CC shall: (1) together with the rapporteur of the case, arrange the sessions of the CC; (2) distribute necessary preparatory tasks for arranging discussions of issues at the sessions of the CC among the judges of the CC; (3) convene and chair the sessions of the CC; (4) make remarks or demands with regard to observance of the rules of examination of cases at the CC on participants in the proceedings, invited persons, and those present at the session, which should be complied with; (5) represent the CC in relations with other bodies and organisations; and (6) carry out general management of the staff of the CC, approve the structure of the staff and the staff list.

Section 72 § 1 provides that prior to the adoption of the draft amendments to the Constitution, the National Assembly shall apply to the CC. Section 72 § 4 provides that the CC shall adopt in this case a decision either on recognition of the draft as complying with the Constitution or on recognition of the draft as fully or partially contradicting the Constitution.

Section 83 § 1 provides that the National Assembly may initiate the procedure before the CC for termination of powers of a CC judge upon a decision adopted by at least three-fifths of the total number of votes of MPs, which should indicate the grounds specified in Article 164 § 9 of the Constitution and Section 12 § 2 of the present Act. Section 83 § 5 provides that a judge of the CC under examination shall be involved in the proceedings exclusively as a defendant and shall have rights and responsibilities of a party to the case as specified under this Act.

(b)   The provisions as in force now

Since 25 June 2020 a similar provision as in the Constitutional Act on Rules of Procedure of the National Assembly, limiting the scope of ex ante review of the CC to a control of conformity with unamendable provisions of the Constitution, was introduced also in this Act. Furthermore, a deadline of fifteen working days was fixed for the adoption of a CC decision.Relevant international document

The relevant part of the Opinion on three legal questions in the context of draft constitutional amendments concerning the mandate of the judges of the Constitutional Court adopted by the Venice Commission on 19 June 2020 (CDL-AD(2020)16), reads as follows:

“A.  First question: In the current situation, which is the best way to fully bring to life the new model of the Constitutional Court, prescribed by the Constitution (amended in 2015)?

1.  Applicable international standards and previous opinions

27. The guiding principles for the assessment of the first question are the independence of the courts and their members, avoiding any unnecessary hierarchy or inequality between the judges, and the trust in the institution.

28. In the past, the Venice Commission has repeatedly been critical of changes to the retirement age or term of office of judges, even as part of a general reform of the judiciary, in particular if such changes were made in haste and without convincing justification. Retroactive changes to the retirement age or term of office of judges affect the independence of judges and may, dependent on the number of judges affected, also have negative effects on the efficiency of a court. This is why international standards of judicial independence explicitly guarantee security of tenure until the mandatory retirement age or the expiry of the term office, and at the same time limit the grounds for dismissal to incapacity or professional misconduct. The European Court of Human Rights (hereinafter “ECtHR”) has repeatedly emphasised the close link between judges’ terms of office and their independence. Indeed, the security of tenure of judges is a universally recognised principle in all jurisdictions respecting the rule of law, and for which exceptions require compelling reasons. In Baka v. Hungary, the ECtHR addressed the issue of retroactive reduction of a judge’s term of office:

“Furthermore, although the applicant remained in office as judge and president of a civil division of the new Kúria, he was removed from the office of President of the Supreme Court three and a half years before the end of the fixed term applicable under the legislation in force at the time of his election. This can hardly be reconciled with the particular consideration to be given to the nature of the judicial function as an independent branch of State power and to the principle of the irremovability of judges, which – according to the Court’s case-law and international and Council of Europe instruments – is a key element for the maintenance of judicial independence [...].”

29. It is on this backdrop that the Venice Commission in its October 2019 opinion underscored the link between security of tenure and judicial independence:

“The Venice Commission wishes to underscore that the security of tenure of constitutional court judges is an essential guarantee of their independence. Irremovability is designed to shield the constitutional court judges from influence form the political majority of the day. It would be unacceptable if each new government could replace sitting judges with newly elected ones of their choice.”

30. That opinion sets out in clear terms what is the purpose of the irremovability of judges, namely that judges, constitutional judges included, are not to be replaced when a new government takes office. Having been appointed under a previous government is simply not a compelling reason for replacing a judge.

31. In recent opinions, the Venice Commission has stressed the importance of the stability of the judicial system for its independence. Trust in the judiciary requires a stable legal framework, and while judicial reforms are sometimes required to increase public confidence in the judicial system, “persistent institutional instability where reforms follow changes in political power may also be harmful for the public trust in the judiciary as an independent and impartial institution”.

2.  The proposed amendments to transitional Article 213

a.  Concerning the judges of the Constitutional Court

32. The process of constitutional development in Armenia during the last 25 years shows a continued struggle for the improvement of democratic standards and the promotion of the rule of law. This process was accompanied by regular recommendations from the Venice Commission and it was not free from political conflicts. In this process, the concern for the independence of the sitting judges was very pronounced.

33. Indeed, Chapter 7 (Courts and the Supreme Judicial Council) of the Constitution introduced by the 2015 amendments includes a number of provisions which are deemed to establish the highest level of independence and impartiality possible in a democratic system governed by the rule of law, concerning especially the status and procedure for election and appointment of judges (in particular Articles 164 – 167).

34. Regarding specifically the judges of the Constitutional Court, the introduction of the new requirement of a qualified majority of three-fifths of the total number of votes for their election by parliament is aimed at ensuring that the ruling majority is not in a position to control the appointments. It thus shields the constitutional judges from the influence of the political majority. In addition, the exclusion of the possibility of re-election (new Article 166 (1)) undoubtedly contributes to the independence of the judges. While there are systems which provide for the possibility of re-election of judges, as in the case of the constitutional court (Staatsgerichtshof) of Liechtenstein (Article 105 by reference to Article 102(2) of the Constitution of Liechtenstein) or of the Court of Justice of the European Union, the European standard is that the terms of constitutional judges are not renewable and re-election is excluded.

35. On the other hand, limitations of terms are common in many constitutional systems as far as constitutional court judges are concerned (as opposed to ordinary judges in civil and criminal courts where the function of the judge is only limited with the retirement age). A term of twelve years is fully in line with European standards. Undeniably, such a limited term allows the regular and partial renewal of the composition of the Court, ensuring to achieve a degree of heterogeneity and pluralism and greater balance in representation. It allows a changing parliamentary majority to elect judges of one tendency or another and better reflects the changing political and societal views of the society.

36. In parallel to major and positive developments in Armenia, the 2015 amendments secured the tenure of the sitting judges of the Constitutional Court by maintaining their initial terms of appointment. It therefore guaranteed the continuation of holding office by those judges until the retirement age without being limited in their mandate by the newly introduced twelve-year term (Transitional Article 213). Consequently, the reform of the Constitutional Court and the introduction of a fixed-term mandate by the 2015 amendments did not result in the immediate and abrupt dismissal of the judges of the Constitutional Court.

37. The provision of transitional Article 213 is not a novelty of the 2015 amendments nor has an exceptional character. A similar transitional provision also existed in the 2005 Constitution (Article 117(13)), which however did not change the manner of appointment of constitutional court judges in a significant manner. Moreover, the same guarantee is also provided in transitional Article 215 of the 2015 Constitution for ordinary judges (but not for court chairmen) appointed prior to the entry into force of Chapter 7, including judges of the Court of Cassation, whose appointment procedure underwent important changes with the relevant amendments while their term of office (until retirement) remained the same.

38. While the introduction of a limited term for constitutional judges cannot be ruled out and on the contrary is commendable, the Commission is of the view that, in principle, a transitional period allowing for a gradual change in the composition of the Court, which prevents such limitation from being used, or from being perceived to be used, as a means at the disposal of the political majority to change the composition of the Court, is appropriate. Such a transitional measure serves to debunk the sense that the limitation of the term of office of the judges is in fact linked to the actions carried out by those judges in the performance of their judicial office being disliked by the ruling majority. Moreover, provisions introducing fixed-term mandate for judges that result in their immediate removal from office, without a transitional period to protect their confidence in their security of tenure, do not comply with the principle of irremovability of judges.

39. For the Venice Commission, the irremovability of judges constitutes an essential element of the independence of the judiciary. Considering the importance placed on security of tenure of judges by both “hard law” and “soft law” international standards, and having regard in particular to the growing importance of safeguarding the independence of the judiciary, including the Constitutional Court, it is appropriate that, if the constitutional provisions on the appointment and the term of office of constitutional court judges are amended, any shortening of the term of office only applies to judges to be appointed after the entry into force of the new provisions. Article 213 is therefore in line with international standards and any departure from the set transitional arrangements must be examined with extreme caution.

40. The draft amendments to transitional Article 213 of the Constitution, which were initially put to referendum on 5 April 2020, entail the dismissal of all the 7 judges (including the Chairperson) appointed before the entry into force of the 2015 amendments on 9 April 2018 – including those who had not yet served the full 12 years’ term according to the 2015 amendments. Blanket measures of this kind, without transitional arrangements, would be at odds with Article 6 ECHR (see Baka v. Hungary). The Commission therefore welcomes that the approach suggested in the request does not lead to the automatic and indiscriminate dismissal of all judges appointed before the entry into force of the 2015 amendments.

41. The current request by the authorities suggests actually a different and less intrusive approach. Accordingly, by an amendment to transitional Article 213, the new terms of office introduced in 2015 (twelve years) could take effect for all judges, including the judges appointed before the entry into force of 2015 amendments. This would mean that judges having already served 12 years would be dismissed, while judges who had been appointed before 9 April 2018 but who had served less than 12 years would stay in office until they had served a total of 12 years. Two sitting judges are already in office for more than twelve years, one judge is serving a second term, but this second term has not yet reached the twelve years limit.

42. In their request and during the meetings with the delegation, the authorities put forth a number of arguments in favour of such an approach: first, the transitional provisions did not, in any way, secure the new model of formation of Constitutional Court in the transitional stage. As a result, the new model provided by the Constitution in force has not yet been fully brought to life. The amendments were adopted in 2015 and entered into force in 2018. Yet, under the current transitional Article 213, their final implementation would only be possible after an extraordinarily long period of time, as the acting Chairperson would attain the retirement age in 2035 and one other member in 2037, i.e. more than 20 years after the adoption of the amendments.

43. Another problem, according to the authorities, is the obvious difference between the status of the judges appointed before the entry into force of the 2015 amendments, and judges elected or to be elected thereafter, in terms of the appointment procedure, appointing authorities and the terms of office. The authorities underlined in this respect that there are currently three different categories of judges in the Constitutional Court: those appointed under the Constitution of 1995, who may hold office until attaining the age of seventy; those appointed after the 2005 amendments, who would be sitting at the court until attaining the age of sixty-five; and those appointed after the entry into force of the 2015 amendments, who may hold office for a total of twelve years. For the authorities, a striking example of this difference in status among judges is the fact that the newly elected judges (2 judges in total), during their twelve-years term of office, will not be able to run for the office of the Chairperson of the Court under the rules of the Constitution in force.

44. The authorities underscore that in order to remedy the public distrust in the Constitutional Court, which is an urgent need in Armenia, the composition of this institution should reflect as soon as possible the current provisions, which guarantee high standards concerning the independence of the Constitutional Court. They also stress that the current crisis around the Constitutional Court presents serious challenges for ensuring the “democracy guaranteed by the Constitution, as well as sufficient qualities for a state governed by the rule of law”.

45. The Venice Commission reiterates that Chapter 7 of the Constitution introduced by the 2015 amendments is aimed at establishing the highest level of independence and impartiality possible in a democratic system governed by the rule of law, concerning particularly the status and procedure for election of constitutional judges. The requirement of a qualified majority of three-fifths in parliament for their election, and the exclusion of the possibility of their re-election, are undoubtedly important safeguards that guarantee the independence of constitutional judges. In particular, those safeguards are aimed at ensuring that the ruling majority of the day is not in a position to control the appointments and as a result, has not the ultimate authority on the composition of the Constitutional Court.

46. The introduction of a limited term of office for constitutional judges, as previously stated, is also perfectly in line with European standards in that it achieves a greater balance in representation within the Court.

47. It should also be observed that the purpose of the current majority is not to alter these high democratic standards, by reversing and stepping back from the achievements of the 2015 reform and by introducing rules that would allow the majority to control the appointments. It appears, on the contrary, that the authorities’ objective is to ensure that the new provisions produce their effects and the composition of the Court reflects the democratic standards introduced by those provisions as soon as possible. This is a legitimate aim.

48. The Commission acknowledges that, in context, the time period between the adoption of the amendments and their final implementation, which would take up to 20 years, is unusually and exceptionally long, and results in effectively frustrating the application of the 2015 amendments. Moreover, it recognises the legitimacy of the authorities’ wish to ensure equality in status among the sitting judges of the Court, relating in particular to their term of office, and to remedy any other statutory inequalities that result from the current state of affairs. The Commission draws attention to its 2019 opinion where it expressed preference for a system where all judges of the Constitutional Court enjoyed the same status irrespective of the time of their appointment.

49. The amendment suggested in the request proposes to apply the fixed-term mandate to the sitting judges, limiting therefore their life-time mandate until retirement. The Commission considers that when compared with a measure that would entail the limitation of an already fixed-term mandate, the interference with the principle of irremovability of judges caused by the current proposal is lesser in degree, which should be borne in mind.

50. Moreover, the proposed measure aims at a standardisation of the judges’ term of office, based on a general reform of the Constitutional Court, and subjects all judges to the same general rule rather than dismissing them based on a sharp cut-off point linked to the entry into force of the 2015 amendments as it was initially proposed.

51. There are therefore good arguments in favour of the new approach proposed by the Armenian authorities.

52. However, as pointed out above, any interference with the principle of irremovability of judges remains, highly problematic and should be strictly limited. A solution has to be found reconciling to the extent possible the different conflicting interests at stake. In this respect, the Commission particularly takes into consideration that the 2015 reform, with the democratic safeguards it introduced, does not leave room for the ruling majority to have the control of the Court. It also notes the legitimate need in Armenia to have the new constitutional provisions produce their effects without an excessive and unreasonable delay.

53. The Commission reiterates that the appropriate way of bringing to life a new model of a Constitutional Court is to maintain the term of office of the current judges and to allow for a gradual introduction of the new terms of office through normal replacements. However, given the circumstances in Armenia, a possible solution may be to amend the current Article 213 and provide for the renewal of the Constitutional Court while envisaging a transitional period. A transitional period would allow for a gradual change in the composition of the Court in order to avoid any abrupt and immediate change encroaching on the independence of this institution. The authorities are best placed to measure the length of this transitional period and the Commission is not in a position to propose a concrete time period. Determining the length of this period requires striking a balance between two competing public interests: on the one hand, the transitional period must reach a minimum length in relation to each individual judge’s remaining term of office in order not to constitute a disproportionate interference with the principle of irremovability of judges. On the other hand, an exceptionally and unreasonably long transitional period which extends well beyond the object of its purpose, risks thwarting the implementation of the will of the constituent power as expressed in the 2015 amendments. It is therefore important to allow a gradual change over a certain period, the duration of which respects this balance and to ensure that this measure remains an exception and does not create any dangerous precedent for future governments.

b.  Concerning the Chairperson of the Constitutional Court

54. As far as the position of the Chairperson of the Constitutional Court is concerned, the explanations in the request for the present opinion suggest that the mandate of the current Chairperson who was elected on 21 March 2018 under the provisions of the 2005 version of the Constitution and whose term of office as judge and as chair ends normally in 2035 should cease and the new Chairperson should be elected by his peers for a 6-years single term according to the procedure prescribed by the Constitution currently in force (Article 166(2)). The authorities consider that this solution would also comply with the logic pursued by Article 215 of the Constitution concerning the chairpersons of courts and of the court of cassation, which provides that “the chairpersons of courts and the chairpersons of chambers of the Court of Cassation appointed prior to the entry into force of Chapter 7 of the Constitution shall continue holding office until the appointment or election of chairpersons of courts and chairpersons of chambers of the Court of Cassation under the procedure prescribed by Article 166 of the Constitution, which shall be carried out not later than within six months following the formation of the Supreme Judicial Council.” It should also be emphasised that the suggestion in the request concerns the termination of the mandate as chairperson only, not also the term of office as judge.

55. The Venice Commission recalls that there are basically two systems in Europe for the election of presidents, vice presidents and presidents of chambers or panels. In some states, such as Germany or Austria, the president and the vice-president are elected by the organs competent to elect the other judges (Government, Parliament). On the other hand, quite a number of systems, if not the majority, provide for an election of presidents by the judges of that court. Above all and inevitably, this is the case at the ECtHR and the Court of Justice of the European Union. For the present analysis, the standards of the latter group are relevant. Here the shorter terms for court presidents are acceptable, and they may even contribute to more collegiality than hierarchy among the judges. In Bosnia and Herzegovina for instance, the President of the Constitutional Court which has been established under strong international influence, is elected by secret ballot by a rotation of the judges of the court selected by the legislative authorities of the Entities, for three years (Article 84 of the Rules of the Constitutional Court of Bosnia and Herzegovina), which is even shorter than is the case in Armenia. In the Armenian case, the Chairperson of the Court under the current rules would remain in the chair for 17 years, longer than the term foreseen for judges under the new Constitution. This risks leading to a predominant role of the Chairperson and is not conducive to collegiality among the judges.

56. Also, the Commission takes note of the authorities’ claim that the election of the current Chairperson of the Constitutional Court, on 21 March 2018, under the provisions of the 2005 Constitution and only three weeks before the entry into force of the 2015 amendments, was contrary to the spirit of those amendments aiming, on the one hand, at guaranteeing more independence for the judiciary and for the Constitutional Court from parliament and on the other hand at enabling a rotation in the position of Chairman. In any case, he was elected when the new rules for the term of office had already been adopted for quite some time. His situation is therefore quite different from the situation of a Chairperson elected under the previous version of a Constitution at a time when it is not known that the term of office will be shortened.

57. In addition, shortening the term of the president does not have the same impact on the independence of a court as shortening the term of all judges and the international standards appear to provide more leeway concerning his position. They distinguish between the judicial function of judges and administrative functions. The Venice Commission has in previous opinions accepted shorter tenures for the position of court presidents, provided that the status as judge is maintained and not affected by the expiry of the term as court president. However, in practice the separation between court administration and the exercise of judicial functions may be less clear, as illustrated by the above-mentioned Baka case. Although this case is rather different from the issue at hand, since it concerned the early termination of the six-year fixed term mandate of the President of the Supreme Court of Hungary and not the introduction of a limitation of a mandate until retirement, the ECtHR considered it problematic for judicial independence that the applicant was removed from the office of president, even though he remained a judge of that court. The Venice Commission too has been cautious of accepting the termination of the mandate as court president as part of a general reform unless compelling reasons are given. If legitimate and compelling reasons can be established, the termination of a mandate as court president must nonetheless respect the principles of legal certainty (legitimate expectations) and proportionality.

58. It should also be noted that presidents of Constitutional Courts or Supreme Courts enter more easily into conflict with the government, the head of state or parliamentary groups than ordinary judges. Court presidents serve in the public and in the media as the face for their court and are connected to certain decisions which may be disputed in the public debate or disliked by the government although these decisions are taken by a body of judges.

59. Against this background, the Venice Commission considers that changes in the term of office of the chairman of the Constitutional Court appear to be possible but require a cautious approach. It would therefore be advisable to envisage a transitional period instead of immediately terminating the mandate of the current chairperson of the court upon the entry into force of a possible amendment to Article 213.

B.  Second question: In terms of best European standards would it be deemed acceptable defining the scope and relatively short deadline for the Court’s ex-ante constitutional review to the extent of compliance of the amendments with non-amendable articles of the Constitution?

60. Articles 168(2) and 169(2) of the Constitution of Armenia provides for constitutional review of constitutional amendments. Article 168(2) provides that the Constitutional Court, prior to the adoption of draft amendments to the Constitution, determines the compliance thereof with the Constitution. The mandatory character of this review is stated in clear terms in Article 169(2) which provides that the National Assembly shall in the cases prescribed by point 2 of Article 168 of the Constitution, apply to the Constitutional Court in respect of amendments to the Constitution. The Constitution does not define the criteria to be used by the Court when revising constitutional amendments.

61. The Constitutional Law on Rules of Procedure of the National Assembly provides detailed rules, in particular in its Article 86, concerning this procedure. Accordingly, prior to the adoption of the draft amendments to the Constitution in the second reading (two readings in total are necessary in the procedure of adoption of draft constitutional amendments), the draft resolution on applying to the Constitutional Court shall be put to a vote. If the decision is adopted, the Chairperson of the National Assembly shall sign this resolution within two working days and, together with the draft amendment to the Constitution debated in the second reading, shall send it to the Constitutional Court. The debate of the issue shall be interrupted until the resolution of the Constitutional Court is received. If the Constitutional Court finds that the draft amendment to the Constitution is not in compliance with the Constitution, then the draft shall be withdrawn from circulation. Otherwise, after receiving its resolution, the voting on the issue at the forthcoming regular sittings of the National Assembly shall be carried out.

62. Under Article 72, paragraph 4, of the Constitutional Law on the Constitutional Court, the Court shall adopt in this case a decision either on recognition of the draft as complying with the Constitution or on recognition of the draft as fully or partially contradicting the Constitution. Under paragraph 3 of the same provision, the Constitutional Court shall adopt a decision no later than three months after the registration of the application.

63. It follows from the above-mentioned legal provisions that the current Law on the Constitutional Court and the Rules of Procedure of the National Assembly provide for an ex-ante mandatory and systematic review by the Constitutional Court before a proposal for constitutional amendment can be adopted. Those legal provisions do not limit the scope of review of draft constitutional amendments by the Constitutional Court. The only time-limit provided for the review is the one of three months as stated in Article 72(3) of the Law on the Constitutional Court.

64. Moreover, during the meetings with the Constitutional Court, following two specific questions raised by the Venice Commission delegation, the representatives of the Constitutional Court informed the delegation that, as to date, there is no case-law of the Court concerning the review of draft constitutional amendments and that the scope of this review is not limited, covering the non-amendable provisions of the Constitution as well as the Constitution in its entirety, including therefore also the procedural rules on adoption of draft constitutional amendments.

65. In its 2010 Report on Constitutional Amendment, the Venice Commission distinguished substantive judicial review of constitutional amendments and purely procedural/formal review in order to check and ensure that the amendments have been adopted following the prescribed constitutional procedures. As for the procedural review, the Commission has taken the position that all constitutional systems should allow for democratic and judicial control to ensure that constitutional amendments have been adopted according to the prescribed constitutional procedures. This is an issue which may suitably tried before a court and such a formal control by courts does not interfere with the sovereign rights of the constituent power, but rather serves to protect democracy.

66. As for substantive review of constitutional amendments, the Venice Commission has adopted a more cautious approach. There is no generally accepted standards in comparative constitutional law regarding the participation of constitutional courts in the constitutional amendment process. Mandatory ex ante review by the Constitutional Court of draft constitutional amendments is rare and while there are examples that the constitutional courts have made useful contributions which have improved and served as guidance for the subsequent parliamentary and public debates, there are also examples that the a priori involvement of the court has brought excessive rigidity to the amendment process and blocked the political debate.

67. For the Commission, substantive judicial review of constitutional amendments should only be exercised in those countries where it already follows from clear and established doctrine, and even there with care, allowing a margin of appreciation for the constitutional legislator. As long as the special requirements for constitutional amendment, such as qualified majority of the elected representatives in parliament, as well as other procedural requirements are followed and respected these are and should be a sufficient guarantee against abuse. Amendments adopted following such procedures will in general enjoy a very high degree of democratic legitimacy, which a court should be extremely reluctant to overrule.

68. The Commission has therefore a general preference for limiting the scope of review of constitutional amendments by the Constitutional Court to a purely procedural examination. It is indeed desirable, that e.g. the parliamentary minority can ask the Constitutional Court to examine whether the procedure for adopting constitutional amendments was followed. This is different from a general ex ante review by the Court.

69. However, if a constitution such as the Constitution of Armenia provides for such ex ante review, this rule obviously has to be respected. Limiting the scope of such review to a control of conformity with unamendable provisions of the Constitution is in line with the European standards, unless this limitation contradicts the text of the Constitution. The scope of the judicial review then depends on the definition of unamendable provisions by the Constitution itself. The “unamendability” under the Constitution should be interpreted narrowly. According to Article 203 of the Constitution, only Articles 1-3 and 203 are unamendable, which on the face of it appears like a rather limited scope for judicial review of constitutional amendments. Taking into account the statement by the representatives of the Constitutional Court during the meetings that the scope of review of the constitutional amendments by the Constitutional Court may cover the entire Constitution, the Commission considers that an expansive interpretation by the Constitutional Court of its own review power would be inappropriate. It would be problematic if the Constitutional Court invalidated constitutional amendments based on vague principles loosely connected with or based on a broad interpretation of the unamendable provisions in the Constitution.

70. As to the deadline for decisions in such ex-ante proceedings, a balance has to be struck between effective judicial review within the scope defined by the Constitution, and the expression of the will of the constitutional legislator also in times of possible emergency. It seems adequate if the national legislator enjoys a certain margin of appreciation when striking this balance and a rather short deadline for the ex-ante review such as two weeks does not appear problematic, having regard also to the variety of systems in Europe in this respect.

71. One particular issue, which was mentioned during the meetings with the authorities and other stakeholders, is whether in case the Constitutional Court is called upon reviewing the constitutionality of the amendment concerning the mandate of the Court’s judges, there would be a conflict of interest preventing those judges from reviewing the constitutional amendment. The Venice Commission considers that it must be ensured that the Constitutional Court as guarantor of the Constitution can function as a democratic institution and the possibility of excluding judges must not result in the inability of the Court to take a decision. Under Article 14(2) of the Law on the Constitutional Court of Armenia, a judge of the Constitutional Court may not use the authority of his/her position as a judge in his/her own interests. Accordingly, if a judge of the Court believes that s/he would have a conflict of interest in case s/he is called upon reviewing constitutionality of an amendment concerning his/her mandate, then following the rule in Article 14, s/he should disqualify himself or herself for hearing the matter according to general rules. For the Venice Commission, however, a distinction has to be made between the institutional principles of the Constitution concerning the independence of the Constitutional Court and the personal interest of the judges. In this respect, the Constitutional Court should use extensive self-restraint in order to avoid any impression of favouring the personal interest of the judges when reviewing amendments concerning the Court itself

...

82. The Commission regrets that a proposal for constitutional amendments was introduced in the Armenian Parliament on the day of the adoption by the Venice Commission of this Opinion, which proposal is not in line with the recommendations in this Opinion.”

COMPLAINTS

1.  The applicants complain under Article 6 that they had no access to a court to challenge the termination of their tenure and, in the case of the fourth applicant, his mandate of President of the Constitutional Court.

2.  They also complain under Article 8 that the termination of their mandates was not in accordance with the law and that it violated the right to respect for their private life.

3.  The applicants further allege under Article 14 in conjunction with Article 8 that the interference with their private life was of a discriminatory nature since no similar measures were undertaken in respect of other public officials. In addition, the fourth applicant alleges that the termination of his mandate was prompted by his former party affiliation since instead of shortening the term of his mandate to six years, as prescribed by the 2015 Constitution, it was terminated immediately without any justifications.

4.  The applicants also complain under Article 18 in conjunction with Article 8 that the termination of their mandates pursued ulterior purpose, namely to influence the outcome of pending cases and replace the sitting judges with those elected by the political majority.

5.  Lastly, the applicants complain under Article 1 of Protocol No. 1 of the loss of their future income due to termination of their mandates.

QUESTIONS TO THE PARTIES

1.  Was Article 6 § 1 of the Convention under its civil head applicable in the present case (see Baka v. Hungary [GC], no. 20261/12, §§ 100-118, 23 June 2016)?

2.  If so, did the applicants have access to a court for the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

3.  Was Article 8 of the Convention applicable in the present case (see Denisov v. Ukraine [GC], no. 76639/11, §§ 95-117, 25 September 2018)?

4.  If so, has there been a violation of the applicants’ rights under Article 8 taken alone and/or in conjunction with Article 14 and Article 18 of the Convention?

5.  Was Article 1 of Protocol No. 1 to the Convention applicable in the present case (see Denisov, cited above, § 137)?

6.  If so, has there been a violation of the applicants’ rights under Article 1 of Protocol No. 1 to the Convention?

APPENDIX

No.

Applicant’s Name

Birth date

Nationality

Place of residence

1

Alvina GYULUMYAN

20/01/1956

Armenian

Yerevan

2

Hrant NAZARYAN

26/01/1959

Armenian

Yerevan

3

Feliks TOKHYAN

20/06/1956

Armenian

Yerevan

4

Hrayr TOVMASYAN

08/07/1970

Armenian

Yerevan

[1] See CDL-AD(2019)024 Joint opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe, on the amendments to the Judicial Code and some other laws, adopted at its 120th Plenary Session (11-12 October 2019), §§ 14 and 61.

[2] Ibid., § 60.

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