Communicated on 18 December 2017
FIRST SECTION
Application no. 2463/12
Samvel MNATSAKANYAN
against Armenia
lodged on 24 December 2011
STATEMENT OF FACTS
The applicant, Mr Samvel Mnatsakanyan, is an Armenian national who was born in 1956 and lives in Yerevan. He is represented before the Court by Mr A. Zeynalyan and Mr A. Ghazaryan, lawyers practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 30 May 2011 the applicant, who was a District Court judge at the material time, granted an application for release on bail lodged by an accused person, relying on Article 5 § 3 of the Convention.
On 1 June 2011 the Chairman of the Court of Cassation requested that the Disciplinary Committee (“the Committee”) of the Council of Justice (“the Council”) initiate disciplinary proceedings against the applicant on the grounds that his decision of 30 May 2011 had been ill-founded.
On 2 June 2011 the Committee asked the Council to institute disciplinary proceedings against the applicant, describing his decision of 30 May 2011 as arbitrary and incompetent.
On 13 June 2011 the applicant submitted written observations to the Council with regard to its decision of 2 June 2011.
On 16 June 2011 the Committee decided to request that the Council impose a disciplinary sanction on the applicant.
On 24 June 2011 the Council held a hearing during which its members asked the applicant questions about his decision of 30 May 2011.
On the same day the Council decided to impose a disciplinary sanction on the applicant and to submit a recommendation to the President of Armenia to dismiss the applicant from his post as judge. The Council’s reasons stated that the applicant’s decision of 30 May 2011 had lacked reasons, which had been in breach of the right to a fair trial and had undermined the reputation of the judiciary.
On 8 July 2011 the Chamber of Advocates released a public statement in support of the applicant. In particular, it accused the Council of Justice of a discriminatory application of its disciplinary powers over judges. The Chamber emphasised that hundreds of decisions involving judges granting investigators’ motions on detaining accused persons had included reasons that were similar to those provided by the applicant on 30 May 2011, but those judges had not been subjected to disciplinary measures. The Chamber, in particular, cited reasons given in seven court decisions on pre-trial detention and submitted that the judges who had provided those reasons had not been disciplined. The Chamber stressed that the reason for such a discriminatory application of disciplinary measures against judges was the Council’s bias in favour of the prosecution.
On 11 July 2011 the President of Armenia issued a decree terminating the applicant’s functions as a judge.
On 24 August 2011 the applicant brought a claim with the Administrative Court, seeking to declare the decision of 24 June 2011 invalid or void ab initio and the decree of 11 July 2011 invalid.
On 31 August 2011 the Administrative Court refused to admit the applicant’s claim as regards the decision of 24 June 2011 and declared his claim inadmissible as regards the decree of 11 July 2011 on procedural grounds. It stated in its reasons that under the Judicial Code the Council acted as a court and had done so when taking the decision of 24 June 2011. The decision was not amenable to further judicial review because the Judicial Code explicitly excluded such decisions from that process. The Administrative Court found that the applicant’s claim as regards the decree of 11 July 2011 was defective as he had failed to provide legal grounds in support of it. The Administrative Court gave the applicant fifteen days to eliminate the defects in his claim against the decree and to re-submit it.
The applicant appealed. He argued that the Council was an administrative body rather than a court as it did not have the required judicial qualities of a court, such as independence and impartiality. As an administrative body, its decisions had to be reviewed by the Administrative Court, which had been denied in his case.
On 12 October 2011 the Administrative Court of Appeal rejected the applicant’s appeal. It held that the question of the Council being a court and possessing judicial qualities had no bearing on the applicant’s case because, in any event, its decisions were not amenable to further appeal and review. It noted that the Council was definitely not an administrative body as it applied the Code of Administrative Procedure in disciplinary cases against judges, which was a judicial procedure.
The applicant lodged an appeal on points of law.
On 23 November 2011 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit.
On 14 December 2011 the applicant lodged an application with the Administrative Court, seeking to eliminate the errors in his initial claim of 24 August 2011 concerning the Presidential decree. In particular, the applicant submitted that the decree had been an unlawful administrative act, as it had been issued without holding a hearing, as required by section 38 of the Law on the Fundamentals of Administrative Action and Administrative Procedure, and had breached the applicant’s property rights as it had deprived him of a judge’s salary and pension.
On 23 December 2011 the Administrative Court decided to admit the applicant’s initial claim of 24 August 2011 on the basis of the corrections he had filed on 14 December 2011.
On 3 February 2012 the Administrative Court informed the applicant that the first hearing in his case had been scheduled for 19 March 2012.
On 2 May 2012 the Administrative Court rejected the applicant’s claim.
His subsequent appeals were rejected in the final instance by the Court of Cassation on 24 October 2012.
B. Relevant domestic law
Article 111 § 6 of the Judicial Code of 2007 provides that decisions by the Council of Justice to impose a disciplinary measure on a judge or on issuing a recommendation to the President of Armenia to terminate a judge’s functions are final, enter into force at the time of delivery by the Council of Justice at a hearing and are not amenable to appeal.
Article 158 § 1 of the same Code provides that the Council of Justice must act as a court and apply the Code of Administrative Procedure when determining a disciplinary measure against a judge.
Section 38 of the Law on the Fundamentals of Administrative Action and Administrative Procedure of 2004 provides that administrative bodies must provide participants of a procedure an opportunity to be heard on the circumstances under examination.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention of a lack of access to a court to contest the termination of his functions as a judge.
2. The applicant complains under Article 10 that he was dismissed from the post of judge because of the legal opinion that he had expressed in his decision of 30 May 2011, substituting detention with bail.
3. The applicant complains under Article 14, read in conjunction with Article 10 of the Convention, and under Article 1 of Protocol No. 12 that his dismissal from the post of judge on account of his legal opinion amounted to discrimination, as other judges who had provided similar opinions on preventive measures in their judicial reasoning had not been subjected to disciplinary measures.
QUESTIONS TO THE PARTIES
1. Is Article 6 § 1 of the Convention applicable to the dispute concerning the applicant’s dismissal from the post of judge (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II)? If so, was the applicant afforded access to court to contest that dismissal? In particular, did the Council of Justice meet the requirements of a “court” under Article 6 of the Convention? If not, was the restriction of the applicant’s access to court to contest his dismissal from the post of judge compatible with the requirements of Article 6 § 1 of the Convention?
2. Is Article 10 of the Convention applicable in the present case? If so, did the applicant’s dismissal from the post of judge breach his right to freedom of expression guaranteed by that Article?
3. Was the applicant’s dismissal from the post of judge in breach of prohibition of discrimination laid down in Article 14, taken in conjunction with Article 10 of the Convention, and in Article 1 of Protocol No. 12?
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