Venice Commission gives positive conclusion on the three legal questions posed by the Armenian authorities

Over the past few months, the Ministry of Justice has closely co-operated with the Council of Europe and the Venice Commission. With the logic of this partnership, on 13 May 2020, the Minister of Justice posed three legal questions to the Venice Commission related to the implementation of the new model of the Constitutional Court that was envisaged by the Constitutional Amendments of 2015, but was not implemented; specification of the scope of preliminary examination of the Constitutional Amendments by the Constitutional Court and the time limit for the examination, as well as the possibility of cancelling the referendum previously announced by the National Assembly and suspended upon the ground of the state of emergency declared due to the pandemic.

The Opinion of the Commission has been published, which has responded positively to the recommendation of the authorities. Thus, it has analysed in regard to the first question, in essence, that the amendments of 2015 envisaged a model of the Constitutional Court that meeting the European standards, and what is also a European standard is that sitting judges continue to serve until the end of their term of office after changes in the terms of office, as it was envisaged before the changes.

Afterwards, the Commission recorded that, with the proposed change, the purpose of the authorities in power is not to alter the model of the Constitutional Court that meets democratic standards and step back from that model, as well as the purpose is not to introduce rules that would allow the political majority to control the appointments of judges. It appears, on the contrary, that the authorities’ objective is to ensure that the new provisions produce their effects and the composition of the Constitutional Court reflects the democratic standards introduced by those provisions as soon as possible. This is a legitimate aim.

The Commission has also acknowledged 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.

With respect to the Chairperson of the Court, the Commission concluded that, from the point of view of the European standards, the shorter terms for court presidents are acceptable, and they may contribute to more collegiality than hierarchy among the judges.

Touching upon the situation in Armenia, the Commission has recorded that 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. Thus, the conclusion of the Commission is that, unlike the terms of office of judges, the authorities have the opportunity to be more discretionary in terms of the term of office of a chairperson of a court, and the shortening of that term is possible, and at the same time, the Commission recommends envisaging a certain transitional period.

Also, the Commission has taken 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. The current Chairperson of the Constitutional Court 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 [referring to the case of G. Harutyunyan] at a time when it is not known that the term of office will be shortened.

Summing up, with regard to the first question, the Commission has accepted the version proposed by the Government, particularly stating that in these exceptional conditions for Armenia, a possible solution may be to amend the current Article 213 and provide for the election of new judges of the Constitutional Court, while envisaging a transitional period that will allow for a gradual change in the composition of the Court. The Commission has stressed that the authorities are best placed to measure the length of this transitional period.

At the last minute, a paragraph was added in the Commission’s Opinion, in which the Commission touched upon the draft constitutional amendments that Deputies of the National Assembly had put into circulation on the same day, regretting that the constitutional amendments are not in line with the recommendations in the Opinion, and even though the Commission did not provide details about with which recommendation of the Opinion the draft constitutional amendments were not in line with, nevertheless, it is clear that the Commission refers to the recommendation to define a new transitional period for judges having served for more than 12 years.

As to the second question, the Commission has also considered the recommendation of the Government acceptable, particularly noting that limiting the scope of review of constitutional amendments to conformity with non-amendable provisions of the Constitution is in line with the European standards. Besides, it has been noted that the “unamendability” under the Constitution should be interpreted narrowly, and the proposed short time limit for the review has also been considered to be acceptable.

It is noteworthy that the Commission has specifically touched upon 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. In particular, the Commission has considered that an expansive interpretation by the Constitutional Court of its own review power would be inappropriate. It has been stated that, from the point of view of the Commission, it would be problematic if the Constitutional Court invalidated constitutional amendments based on vague principles loosely connected with or based on a broad interpretation, by the Court, of the unamendable provisions in the Constitution.

As stated in the Opinion, “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”.

As to the third question, the Venice Commission has observed that it is a general principle of public law that general norms and decisions adopted by a competent public body can be annulled by a new decision of the same body following the same procedure.

The Venice Commission has also made observations regarding certain issues beyond the scope of the analysis of the legal questions, which have been taken note of by the Government and will be exhaustively addressed in the course of comprehensive constitutional amendments.

Summing up, it should be noted that the Venice Commission has presented a positive conclusion on the three legal questions posed by the authorities and has stressed the legitimate aim of the proposed solutions and their compliance with the European standards.

The Government of the Republic of Armenia expresses its satisfaction to the Council of Europe and the Venice Commission for the effective co-operation and the efforts put that are targeted at the legitimate aim of overcoming, in the current situation, the crisis created in the Constitutional Court in line with the European standards.