Vetting of judges can be carried out in three ways; two of them — now, one — after constitutional reforms

The Ministry of Justice organised a conference with several dozens of academic lawyers, civil society representatives, public and political figures, advocates, state officials and other interested parties in order to finally clarify the issue of the professional debate that has been going on for several years and to give an exhaustive answer to the public about the extent to which and how it is possible to cleanse the judiciary under the current Constitution.

Summing up the discussions held during the conference, the specialists of the Ministry of Justice came to the following conclusion:

Vetting of judges can be carried out in three ways:

1.     by a new body established specifically for this purpose; the procedure, criteria and stages for carrying out vetting of judges, as well as the composition and competences of the particular body, the procedure for decision-making, the mechanisms and grounds for appeal will be defined by law.

2. by initiating disciplinary proceedings on the grounds of violations prescribed by law and subjecting judges to liability.

3. by setting, by law, new standards for initiating disciplinary proceedings.

According to the vast majority of specialists who participated in the conference, the vetting of judges in the first way can be carried out only after constitutional reforms, as the applying those reforms for incumbent judges would contradict Article 73 of the Constitution, according to which laws and other legal acts deteriorating the legal condition of a person shall not have retroactive effect. The transgression of this fundamental principle can be considered as lawful only if, as a result of the constitutional reforms, the transitional provisions provide for the possibility of transcending the principle of retroactivity to incumbent judges. Otherwise, applying vetting tools for incumbent judges, such as assessment of professionalism, testing of professional capabilities, will be assessed as processes that contradict the Constitution. The importance of and need for maintenance of retroactivity was also highlighted in Opinion No. CDL-AD (2019) 024 [1] on the draft amendments to the Judicial Code of the Republic of Armenia and related laws, published by the Venice Commission of the Council of Europe on 14 October 2019.

Vetting in the second way is already being carried out. Three bodies independent from each other, including the Corruption Prevention Commission, the Ethics and Disciplinary Commission and the Ministry of Justice, apply to the Supreme Judicial Council with motions to subject judges to disciplinary liability, as a result of which, a number of judges have already been subjected to disciplinary liability, and the powers of some of them have been terminated.

Implementation of vetting in the third way implies the establishment of new criteria within the framework of the current Constitution, including for all the judges against the decisions rendered whereby, cases have been examined by the European Court of Human Rights, as well as for judges who have relations with representatives of a criminal kingpin and judges having rendered politically motivated decisions, as well as the development and improvement of the institution of integrity checking and the tool-kit for this. From this perspective, we deem it necessary to emphasise that some legislative clarifications and new tests for application of the existing legislation are necessary, and the Ministry of Justice has launched intensive activities targeted at legislative clarifications and new testing for application.

Thus, we express gratitude to all the participants of the conference for supporting the solution to this major issue, and we inform the public that our professional team — formed as a result of the discussions — believes that vetting of judges in two of the three ways can be implemented under the current Constitution, and only vetting in one way can be implemented after constitutional reforms.