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Ministry of Justice: Regulation proposed for early retirement does not undermine independence of judicial power

12/08/2019

Taking into consideration the discussions held with regard to certain provisions in the package of drafts of the Laws "On making amendments and supplements to the Constitutional Law "Judicial Code of the Republic of Armenia"", the Law "On making amendments and supplements to the Constitutional Law of the Republic of Armenia "On the Constitutional Court"" and related laws, the Ministry of Justice of the Republic of Armenia deems it necessary to provide the following information regarding certain provisions:

1.     the proposed regulations envisage that judges of the Constitutional Court shall, in case of submitting resignation in a certain period, maintain the salary and other social guarantees that they had at the moment of resignation, and shall, upon attaining the retirement age, benefit from the pension prescribed for a judge by law. In relation to this regulation, it is necessary to mention that the practice of early retirement of judges has been applied in different countries. Among the most discussed initiatives of the past years are the relevant legislative processes in Hungary (2011-2012) and Poland (2017-2018). In particular, pursuant to the law adopted in Hungary in 2011, Hungary changed the retirement age of judges and prosecutors from 70 to 62 (gradually rising to 65), sending them to retirement at the age of 62 (65) instead of 70. The legislative amendment presented in Poland provided for early retirement for 40% of judges of the Supreme Court of the country. In Denmark, judges attain retirement age at the age of 70, but they obtain the right to early retirement starting from the age of 60. In Belgium, a judge may, pursuant to his or her application, retire before attaining his or her retirement age, maintaining the right to bear his or her honorary title and serving as a substitute magistrate before attaining the age of 73.

The proposed regulation for early retirement does not undermine the independence of the judicial power. This conclusion is based on the judgment rendered for the Case of GB of the European Court of Human Rights and Others v. Hungary where the Court emphasised that the State has not committed a violation with respect to judges who have voluntarily submitted an application before expiry of the time limit provided for by law, as: "(...) the State has not played an active or unlawful role in sending the applicants to retirement against their will". In addition, let us mention that, in the explanatory report of its Recommendation CM/Rec(2010)12, the Committee of Ministers of the Council of Europe emphasised that: "Early retirement should be possible only at the request of the judge concerned or on medical grounds".

It is clear that providing for the possibility of early retirement for judges of the Constitutional Court is not a violation of international standards. As is highlighted in the rationale of the draft, the aim of the provision is to implement the model of formation of the Constitutional Court enshrined by the constitutional amendments of 2015. In particular, a new procedure for formation of the Constitutional Court was adopted by the constitutional amendments of 2015, which implies that judges of the Constitutional Court shall, upon recommendations of the President of the Republic of Armenia, the General Assembly of Judges and the Government, be elected by the National Assembly for a term of twelve years. In the current conditions, this model of formation of the Court may never be implemented, taking into consideration the fact that in the Republic of Armenia constitutional amendments are made on a regular basis (the last two processes of amendments took place in a period of ten years), or implementation of the model may be postponed for a long period. Thus, the system of early retirement proposed by the draft is aimed at ensuring implementation of the procedure for formation of the Constitutional Court enshrined by the constitutional amendments of 2015.

2. The package of drafts proposes to lower the minimum age limit of contenders for judge candidates from 28 to 25 with the view of engaging in the judiciary young persons not dependent on or not connected with other representatives of the judiciary. First and foremost, it is necessary to take into consideration the fact that the prescribed age concerns participation in the qualification test for being included in the list of contenders for judge candidates, not immediate appointment as a judge. To be appointed as a judge, a candidate must participate in the written exam, after which he or she must undergo the interview stage in the Supreme Judicial Council and undergo professional training at the Academy of Justice. As a result of this process, the attributes of a candidate required for being appointed as a judge are assessed.

A minimum age limit for being appointed as a judge or for undergoing training to be appointed as a judge is envisaged in several countries, and in certain countries, no minimum age limit is prescribed at all, placing emphasis on professional skills and experience. This is the approach in, for instance, Estonia where there is no minimum age limit for becoming a judge; instead, there are requirements for the level of education and relevant professional and personal qualities. The minimum age limit for judges is also not envisaged in Austria, Denmark and Romania. A minimum age limit for judges is envisaged in several countries. In particular, the minimum age limit for judges of the regional court and court of appeal in Norway is 25. The same age is also prescribed in Thailand, the Russian Federation and Belarus. International standards do not provide for a minimum age limit for the appointment of judges, as what is more essential is the knowledge, skills and personal qualities required for working as a judge, and strict requirements are defined for verification of knowledge, skills and personal attributes by the Armenian legislation.

3.     As far as the requirement of suspension of the powers of a judge of the Constitutional Court in case of institution of criminal prosecution against the judge is concerned, as proposed by the draft, let us mention that the law does not provide for immunity for a judge of the Constitutional Court in the case of institution of criminal prosecution for powers that he or she has not exercised. In these conditions, the issue of continuity of the powers of judges of the Constitutional Court remains unsolved, and the draft proposes to apply the regulations of the Constitutional Law "Judicial Code". In particular, the Constitutional Law "Judicial Code", which was adopted on 7 February 2018 and entered into force on 9 April 2018, provides for the requirement of suspension of the powers of the judges of all other courts in the cases of institution of criminal prosecution or deprivation of liberty of a judge, irrespective of whether criminal prosecution or deprivation of liberty is linked to exercise of his or her powers or not (Article 165). Consequently, the Draft proposes to apply the existing regulation for judges of all other courts for judges of the Constitutional Court as well.

Once again, the Ministry of Justice declares that it is open for all discussions and constructive proposals through which the legislative package will become better in terms of quality.

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