Gyulumyan and Others v. Armenia (dec.)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Legal summary

December 2023

Gyulumyan and Others v. Armenia (dec.) - 25240/20

Decision 21.11.2023 [Section I]

Article 6

Constitutional proceedings

Article 6-1

Civil rights and obligations

Termination of terms of office of Constitutional Court judges and President, all appointed with life tenure, through non-judicially reviewable amendments in constitutional reform context: Article 6 inapplicable; inadmissible

Article 8

Article 8-1

Respect for private life

Facts – The first, second and third applicants were judges of the Constitutional Court and the fourth applicant was the President of that court. The first applicant was also previously a judge at the European Court of Human Rights. At the time of their appointments, the applicants were given life tenure, meaning they were to remain in office until their retirement. However, the terms of office of the first, second and third applicants, who had already served more than 13, 24 and 22 years respectively, were terminated through non-judicially reviewable constitutional amendments that came into force in June 2020 in the context of the 2015 constitutional reform. The term of office of the fourth applicant as President of the Constitutional Court was also terminated, but he remained in office as a judge of that court. The said amendments introduced a non-renewable 12-year term of office for Constitutional Court judges, immediately terminating the term of office of judges who had already served 12 years, and a 6-year non-renewable term for office of that court’s President. The applicants had in the meantime refused the offer of early retirement.

Law –

Article 6 § 1:

(a) Existence of a right – The Court held that there had been a genuine and serious dispute over a “right”, namely the right of the applicants to serve their full terms until retirement, which they could claim on arguable grounds under domestic law. Until the entry into force of the impugned amendments prematurely terminating their terms of office, there had existed provisions affording the three applicants irremovability from their judicial office until their retirement, despite the new rules for appointment of constitutional judges, including a fixed-term non-renewable term of office. The fourth applicant’s entitlement to remain in office as the President of the Constitutional Court had derived from the Constitution and the National Assembly’s decision to appoint him with life tenure until his retirement in 2035. The National Assembly’s subsequent request to the Constitutional Court to terminate his term of office had been to no avail.

(b) “Civil” nature of the right – the Eskelinen test –

(i) The first condition of the Eskelinen test – whether access to a court was excluded under domestic law – That condition was satisfied since the applicants’ exclusion from access to court under domestic law had implicitly stemmed from the systemic interpretation of the applicable legal framework or the whole body of legal regulation.

(ii) The second condition of the Eskelinen test – whether the exclusion of access to a court was justified – Unlike previous similar cases before the Court which had involved judges of ordinary courts or supreme courts, the present case concerned constitutional court judges. The Court had often underlined the special role and status of constitutional courts. The Constitutional Court had a particular status in the Armenian legal order. Notably, the Supreme Judicial Council, set up to ensure the independence of the judges and courts, had no authority over the Constitutional Court which ensured the independence of its judges and had exclusive jurisdiction in disciplinary matters, the lifting of immunity of its judges and the termination of their powers. Accordingly, the intervention of the Supreme Judicial Council had been inconceivable in the present case. Likewise, the intervention of any ordinary courts had also been inconceivable as the applicants’ terms of office had been ended through a constitutional amendment, as part of a broader constitutional reform.

While the Convention did not prevent States from taking legitimate and necessary decisions to reform the judiciary, any reform should not result in undermining the independence of the judiciary and its governing bodies. In the present case, there was no convincing evidence to support the applicants’ argument that the impugned amendment had been aimed at, or resulted in, undermining the legitimacy or independence of the Constitutional Court and that it had targeted them specifically.

The Court notably referred to the successive opinions of the European Commission for Democracy through Law (the Venice Commission) which had comprehensively dealt with various aspects of the judicial reform. These had, inter alia, confirmed that the introduction of a non-renewable 12-year term of office for judges was “fully in line” with European practice and that the new procedure pursuant to which the President of the Constitutional Court was no longer to be appointed by the National Assembly for life but was to be elected by the judges for a non-renewable 6-year term, was a “good safeguard” for the independence of that court. It had also been emphasised that all the Constitutional Court judges should enjoy the same status, regardless of whether they had been appointed before or after the 2015 reform.

In that context, the Court also attached importance to the Venice Commission’s overall assessment of the process of constitutional developments in Armenia over the past 25 years, notably that that process demonstrated a “continued struggle for the improvement of democratic standards and the promotion of the rule of law” and a pronounced “concern for the independence of the sitting judges”.

Furthermore, the Court saw no reason to disagree with the Venice Commission’s finding that the impugned constitutional amendments had had a legitimate aim, since their objective had been to ensure that the high democratic standards concerning the independence of the Constitutional Court produced their effects as soon as possible, and that all judges of the Constitutional Court would enjoy the same status irrespective of the time of their appointment. In that regard, the Court noted that, had the June 2020 amendment not taken effect, the full implementation of the 2015 reform would have been excessively protracted.

The Court acknowledged that the authorities had had to make difficult choices when weighing in the balance, on the one hand, the important interest of the State in concluding a long-lasting and complex constitutional reform involving a complete overhaul of the judges’ appointment procedure and introduction of a non-renewable fixed term of office and, on the other, the principle of irremovability of judges vis-à-vis the applicants’ individual right to continue their terms of office until retirement and to preserve their status. The fact that the authorities had chosen not to apply the transitionary period suggested by the Venice Commission in respect of the applicants, could not per se undermine the legitimacy of the aims pursued by the constitutional reform.

As regards the applicants’ argument that the impugned constitutional amendment terminating their terms of office should have been subject to a prior constitutional review, the Court reiterated that Article 6 did not guarantee a right of access to a court with power to invalidate or override a law enacted by the legislature. Nor could a right for an individual to trigger a decision of a parliamentary body to seek a constitutional review of a law be derived from that provision.

In any event, at the relevant time the majority of the Constitutional Court’s sitting judges (seven out of nine) had been adversely affected by the constitutional amendment in question. The Bangalore Principles of Judicial Conduct provided that extraordinary circumstances might require a departure from the principle of disqualification of judges. The doctrine of necessity in those principles enabled, in “rare and special” cases, a judge who was otherwise disqualified to hear and decide a case only where failure to do so would result in injustice, in particular where an adjournment or mistrial would cause severe hardship. The Venice Commission had opined that that doctrine applied only if the disqualification might result in denial of justice, noting that a large margin in deciding a case might justify the disqualification, whereas in situations where the constitutionality or unconstitutionality issue was rather clear and judicial adjudication did not involve any value judgment by the judge concerned the effective functioning of a constitutional court as a democratic institution should prevail. The present case was not one of such cases nor did it involve such circumstances of “necessity”. The impugned constitutional amendment had had adverse consequences solely for the applicants and their own interests; the termination of their term of office had not had any effects for the future mandates of the Constitutional Court justices as the non-renewable 12-year term of office had already been introduced some two years before the events that had given rise to the present application.

Therefore, even assuming that the doctrine of necessity in the Bangalore principles was compatible with the guarantees of Article 6, the Court considered that respect for the principle of impartiality (nemo iudex in causa sua) could not be reconciled with ensuring to the applicants the right of access to the Constitutional Court in practice.

In conclusion, having regard to the very particular circumstances of the present case, notably the facts that the applicants had been judges of the Constitutional Court, the highest court with a special status in the Armenian judiciary, and that their terms of office had been terminated through a constitutional amendment, which had been not directed against them specifically, the Court held that the exclusion of access to a court had been objectively justified for the purposes of the second condition of the Eskelinen test. Thus, that condition had also been fulfilled.

Conclusion: inadmissible (incompatible ratione materiae).

Article 8: There was no indication that any “private life” issue had been the reason for the termination of the applicants’ terms of office. The Court thus followed a consequence-based approach. There had been no significant impact on their income: the fourth applicant remained in office as a judge of the Constitutional Court, while the other applicants were entitled to a full pension, regardless of their age. Furthermore, there were no other indications that the “inner circle” of the applicants’ private life had been affected by the termination of their terms of office. Even if the fourth applicant’s opportunities to establish and maintain relationships, including those of a professional nature, might have been affected (despite his dismissal not resulting in his removal from the profession), there were no factual grounds for concluding that such effects were substantial. The other applicants had not put forward any allegations in that respect. Nor was there any evidence of any individualised negative remarks made by the domestic authorities as regards the applicants’ professional performance or their personality, moral values or character. Accordingly, the Court concluded that the negative effects which the termination of the applicants’ terms of office had had on their private life had not crossed the threshold of seriousness for Article 8 to apply.

Conclusion: inadmissible (incompatible ratione materiae).

Since Article 8 was not applicable, the Court held that Articles 14 and 18 taken in conjunction with that provision were not applicable either. Lastly, it dismissed the applicant’s complaint under Article 1 of Protocol No 1 inadmissible ratione materiae as future income could not be considered to constitute “possessions” unless it had already been earned or was definitely payable.

(See also Vilho Eskelinen and Others v. Finland [GC], 63235/00, 19 April 2007, Legal Summary; Denisov v. Ukraine [GC], 76639/11, 25 September 2018; Legal Summary; Guðmundur Andri Ástráðsson v. Iceland [GC], 26374/18, 1 December 2020, Legal summary; Bilgen v. Turkey, 1571/07, 9 March 2021; Broda and Bojara v. Poland, 26691/18 and 27367/18, 29 June 2021; Gumenyuk and Others v. Ukraine, 11423/19, 22 July 2021, Legal Summary; Grzęda v. Poland [GC], 43572/18, 15 March 2022, Legal Summary; Juszczyszyn v. Poland, 35599/20, 6 October 2022, Legal Summary; Ovcharenko and Kolos v. Ukraine, 27276/15 and 33692/15, 12 January 2023, Legal Summary; First opinion of the Venice Commission on the draft amendments to the Constitution (Chapters 1 to 7 and 10) of the Republic of Armenia, endorsed at its 104th Plenary Session (23-24 October 2015, CDL-AD(2015)037); 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 by the Venice Commission at its 120th Plenary Session (11-12 October 2019, CDL-AD(2019)024); Opinion of the Venice Commission on three legal questions in the context of draft constitutional amendments concerning the mandate of the judges of the Constitutional Court, adopted on 19 June 2020 (CDL-AD(2020)16); The Bangalore Principles of Judicial Conduct)

To access legal summaries in English or French click here.
For non-official translations into other languages click here.

Full & Egal Universal Law Academy