The Judicial Code should provide for a procedure for effectively appealing a decision based on the results of disciplinary proceedings, made by the Supreme Judicial Council. Arshak Vardanyan, Judge of the Criminal Court of Appeal mentioned in the interview with Iravaban.net, talking about the actions of the judicial and legal reform strategy and their implementation.
Under the current regulation, the decision made by the SJC is final, although as a result of that proceeding the powers of a judge may be terminated. According to Arshak Vardanyan, it is also necessary to eliminate the possibility of disciplining a judge for even a gross violation of substantive and/or procedural law.
“The independence of judges is not an absolute right or privilege given to them for their own interests, it is in the interests of the rule of law and the interests of those who seek justice and expect justice. Judges should have unlimited freedom to make impartial decisions in court cases, I emphasize, based on the dictates of their conscience and their interpretation of the facts, as well as observing the rules established by the current law. The right to be protected from the mistakes of the court should be enshrined in the appeals system,” the judge said.
Arshak Vardanyan thinks that if legal and disciplinary sanctions are applied to a judge for his/her decisions, both the independence of the judiciary and the democratic balance of powers are violated. In addition, authoritative international organizations such as the Venice Commission, GRECO, and the UN Human Rights Committee, addressing issues in the Armenian judiciary, have repeatedly stated the need to reconsider the role of the Minister of Justice in instituting disciplinary proceedings against judges, which is subject to termination from the moment when the new Committee on Ethics and Disciplinary Issues of the General Assembly of Judges (which now includes representatives of interested non-governmental organizations) provided for in the Judicial Code proves its effectiveness
The action plan stemming from the 2019-2023 Judicial and Legal Reform Strategy provided for the strengthening of the independence and impartiality of the judiciary, the improvement of the public accountability structures of the judiciary, and a judicial system free from corruption and patronage.
According to Judge Vardanyan, consistent and coordinated work is needed in order to form a judiciary free from corruption and patronage, first of all, at the legislative level, making certain amendments to the Judicial Code, which will strengthen the independence of courts and judges from possible interference by other branches of state power; of course, if those wings of power have such a will and desire.
According to the current legislation, the representation of judges in the SJC is 50%, although according to the proposals of European institutions, the number of judges in that body, at least in the framework of disciplinary proceedings, should have been predominant. In addition, the judge believes that the selection of SJC scholars-members in this constitutional body should have provided significant support to the opposition forces, thus ensuring the condition of multilayered representation of society presented by European institutions, which also needs to be enshrined in law.
According to Arshak Vardanyan, the fight against corruption and patronage presupposes the remuneration of judges, which is commensurate with their work, reduces possible corruption risks. After the end of the term of office, also provision of pension, provision of security and other guarantees of security of the judge and his family members. Of course, it also presupposes the inevitability of at least disciplinary action against judges who allegedly commit corruption crimes, as well as those judges who commit it under the internal or external influence, including representatives of other branches of government, and persons acting under their auspices, which will have a general preventive effect at least in terms of reducing sponsorship and corruption
One of the most important tools in the fight against patronage was the introduction of a special computer program for the distribution and redistribution of cases, the formation of collegial courts, which was implemented in 2011 and which activities were terminated due to the emergence of a “force majeure” with its confiscation in July 2021. I think this was an unprecedented blow to the principle of internal and external independence and impartiality of the courts and it may also contain patronage and corruption risks. In December 2021, a group of judges made a public statement about the visible risks, asking certain questions to the SJC; and only by the public response to a part of which given on 10 January, 2022, reaffirmed our following concerns:
The SJC was informed in advance of the seizure of the software and the emergence of an “force majeure” situation, but we do not believe it responded properly to the serious risk posed by the operation, because prior to the actual seizure it did not require the prosecuting authorities notified of the confiscation to take proportionate measures to resolve the issue,” the judge said.
Besides, Arshak Vardanyan mentions that no effort has been made to find out the circumstances to be revealed by making a formal inquiry or at least by consulting with a computer literate specialist to find out the circumstances to be revealed in alternative ways that do not accompany the actual termination of the operation of a special computer program. “The constitutional body guaranteeing the independence of the courts and judges, by some logic, acted with the presumption of unconditional trust in the criminal prosecution bodies, which is different from the other branches of government: in this case, we have reasonable doubts about the SJC’s desire and ability to guarantee the independence of courts and judges from criminal prosecution bodies. The SJC has not initiated any investigation into the facts of observance or violation of the rules of equal and random distribution of cases by the presidents of the courts and has no such intention.
Moreover, the violation of the alphabetical order of distribution of cases was regularly raised by the lawyers representing the interests of their clients, which is not a reason to initiate such an investigation.
The actions of the strategy envisage that steps should be taken to increase the understanding of the role of the judiciary and to build trust in it among the public.
Speaking about whether the judiciary now enjoys the public trust or not, the judge also noted that the double-digit increase in the number of applications and complaints of citizens who have applied to the courts and the overcrowded state of the courts do not indicate low trust in the courts and what is more about lack of trust, although there are problems.
“Moreover, in many cases I have personally applied to the court and will apply to the court, as it is the last domestic remedy for the restoration of violated rights, and at the same time it is quite effective. I think that the situation would be more accurately reflected in the polls conducted among the above-mentioned persons, and especially among lawyers, although it would be interesting to get acquainted with the opinion of the staff of the prosecutor’s office on trusting the courts and specific judges,” he said.
Touching upon the establishment of anti-corruption courts, which is also envisaged by the actions of the Judicial and Legal Reform Strategy, Judge Arshak Vardanyan noted that this legislative package will not significantly solve the issue of overburdening the courts. “If I am not mistaken, corruption crimes, the exhaustive list of which is provided in Annex 6 of the RA Criminal Code, make up no more than 5% of all crimes. I do not think that cases of official fraud or bribery are more difficult to investigate than, for example, cases that include features of crime provided by Articles 117-118 of the RA Criminal Code, between neighbors (features of gang hooliganism, especially murder or banditry) especially for the incumbent judges, for those who have investigated and are investigating such cases on a daily basis,
In addition, the approach of paying newly appointed court judges higher than others is also unclear, which was supposedly done to reduce possible corruption risks. This, however, contradicts the recommendations made by European institutions on the criteria for the specialization of judges (European Judicial Advisory Council).
The judge reminds that there is an inhuman overload upon judges in the courts of first instance, which requires a quick solution, but this issue has not been solved with the initiated and implemented legislative changes, and it will be difficult to solve: There is also a certain workload in the Criminal Court of Appeal, which has been reduced incomparably due to the fact that the complaints on the pre-trial proceedings were signed to 6 other specialized judges.”
