Justice Minister of the RA Rustam Badasyan referred to an interview given by Davit Harutyunyan in which he referred to the draft law on “Amendment to the Constitutional Law on the Constitutional Court” and presented his observations on a number of arguments previously announced by Rustam Badasyan.

“Deeply respecting the approach of presenting professional considerations in such a format, I also present my counterarguments in response to the observations of the former Minister of Justice.

1. In relation to the issue raised in Argument 1 it should be noted that the Ministry of Justice has never identified the early retirement model provided for in Article 88 (4) of the present Constitutional Law on the Constitutional Court with the proposed version and in some cases emphasized their differences. The reference to the current early retirement system is intended only to point out that our legislation already has an early retirement system, which existence in general has been questioned by a number of individuals. It is noteworthy that Mr. Harutyunyan himself calls the possibility in his text (Argument 1, third paragraph, second sentence) an “early pension”. Mr. Harutyunyan noted that it is logical to grant early retirement only to judges who have served for at least 12 years, which is “justified in view of the unification of the status of judges of the Constitutional Court since the 2015 Constitutional changes. The maximum term of office of judges elected after the constitutional amendments is 12 years. “This observation once again substantiates the necessity of implementing a new model of the Constitutional Court after the constitutional amendments if 2015, as Mr. Harutyunyan himself justifies the existing early retirement system by demanding unification of the status of a judge after the constitutional amendments. The opportunity offered by us is yet another tool to make the Constitutional Court such, as provided in the 2015 Constitution, taking into account both the age difference of judges, the mechanism of election, and so on. In addition, it was noted, that the differentiation of the status of judges of the Constitutional Court, according to the old and new judges, contradicts the approach of the Venice Commission, which clearly states that all judges of the Constitutional Court, regardless of whether they were appointed before or after the amendments of the Constitution in 2015 came into force, they should enjoy the same status (paragraph 60, paragraph 1 of the Commission’s Opinion). Meanwhile, the Venice Commission’s conclusion is the literal statement of paragraph 60: “First of all, the Venice Commission emphasizes that all judges of the Constitutional Court should have the same status, whether they are appointed before or after the 2015 constitutional amendments. Regarding the early retirement system of judges appointed before 2015, The Venice Commission has previously criticized early retirement systems when they were mandatory or when they affected a large number of judges. However, this criticism cannot be extended to cases where the resignation is connected with the voluntary decision of the Constitutional Court judges.” Thus, it can be concluded that the Venice Commission has registered the same status of all judges of the Constitutional Court, and the early retirement system is obviously under discussion in the context of the judges appointed before the 2015 constitutional amendments. The argument about the differences between the current early retirement system and the amounts received is not in any way refuted, further emphasized by me in presenting the draft to the National Assembly.
2. The provisions in Argument 2 are in logical contradiction with the view presented in Argument 1 that the current system of early retirement is justified in terms of the unification of the status of CC judges (for judges serving at least 12 years). If the constitutionalist deliberately stipulates that the new model of the Constitutional Court must be implemented gradually over time, as Mr. Harutyunyan argues, and that any law that promotes faster implementation is unconstitutional and inadmissible, then at least such assessments should be made related to the early retirement provided for in Article 88 (4) of the current Constitutional Law on Constitutional Court, which was, however, qualified as “reasonable and justified”. In addition, the justification that  the new model of the Constitutional Court must be implemented gradually, over time, so that it is not possible to form the whole Constitutional Court at once and only by one supreme political force. With the 2015 amendments to the Constitution, judges of the Constitutional Court are elected by the National Assembly from among the candidates nominated by the President of the Republic, the Government and the General Assembly of Judges. This system of nomination itself ensures that candidates are nominated by bodies that cannot belong to a single political force.  With reference to Article 213 of the Constitution with amendments of 2015, it must also be noted that it provides for the continuation of the powers of the President of the Constitutional Court in the case of a new election procedure for the Presidents of all other courts.
3. In relation to international experience, it should first be noted that the reference to existing experience in the cited countries is intended to present different manifestations of the existing pension schemes, which have been repeatedly mentioned by the authors of the Draft. The presentation of the justifications provided a complete picture of international practice. For example, the experience of Hungary and Poland has been mentioned as an example of a compulsory early retirement scheme, literally stating in the Draft justifications: “Hungary and Poland’s models for early retirement of judges from Hungary and Poland have been characterized by EU and CoE structures, including the ECHR, as problematic in terms of judicial independence, breach of the principle of irreversibility and age-based discrimination (European Commission).”
4. Citing the “The 2007 Transparency International’s report” he mentioned that it indicates unbiased criticism of these reforms in Georgia, describing them as reserving a number of experienced cadres, failing to equip the courts with experienced cadres for a long time, and, in the Supreme Court’s case, the process of “imposing resignation by threatening judges”. However, it should be noted that the report criticized not the draft regulations but the early retirement pension scheme used as a tool for some judges to terminate their powers and deprive them of all privileges.
5. Referring to the Venice Commission’s conclusion on early retirement, it was noted that restricting access to early retirement to a very short term, the Draft made the conditions set by the Venice Commission a fiction, while it should be noted that the Venice Commission did not withdraw early retirement and the term of the Draft for the exercise of that right.

P.S. I sincerely urge Mr. Harutyunyan to cooperate with the Ministry of Justice, especially during the development of such important Drafts, and to submit professional suggestions during their public discussion.