The Supreme Judicial Council has published the decision on terminating the powers of Judge Zaruhi Nakhshkaryan. Iravaban.net presents the details of the decision regarding the disciplinary violation attributed to the judge.
Notably, the reasons for initiating disciplinary proceedings by the Supreme Judicial Council was the media publications about the disciplinary violation, the relevant interviews given by the judge, as well as the publications made by the user Zaruhi Danielyan on the Facebook social site.
On the day before the publication of the decision by the Supreme Judicial Council regarding disciplinary action against Judge Anna Pilosyan, Judge Zaruhi Nakhshkaryan expressed a public opinion about the case being examined in the court, and after the publication of the final part of the mentioned decision on 26 December, 2022, she publicly questioned that judicial act and the actions of the court. Nakhshkaryan stated in his publication on Facebook: “People who voted in favor, you are the ones who will live with this decision, not Pilosyan, not the society, but you!”
The decision of the SJC refers to the reporting document of the European Court of Human Rights “”Judicial Seminar” Strengthening Confidence in the Judiciary”, according to which the judge’s duty to be restraint, pursues a certain goal, that is, the judge’s speech, unlike the lawyers, is perceived as an expression of objective assessment, which is binding not only for the judge as a separate subject, but also for the entire judicial system. In addition, the universal charter of judges adopted by the International Union of Judges states that a judge must refrain from any conduct, action or statement that would affect confidence in his impartiality and independence.
Further, in the decision of the SJC, the provisions of the RA Constitution on freedom of speech are referred to: “Freedom of expression of opinion may be restricted only by law, for the purpose of state security, protecting public order, health and morals or the honor and good reputation of others and other basic rights and freedoms thereof.”
The SJC considered it important to emphasize that any interference with the exercise of the judge’s freedom of speech should be the subject of careful study in the Council. Thus, the Council referred to each aspect of the exercise of the judge’s right to freedom of speech separately.
Zaruhi Nakhshkaryan: “For years, the Judge, who has been working under an inhuman workload of more than 5,000 civil cases, is accused of delaying the verdict in 4 cases for a long time. Under these conditions, how fair is the “accusation” – decide for yourself.
The decision of the SJC will be published tomorrow, 26 December, at 17:45, the first disciplinary “judgment” under the chairmanship of the new Head of the SJC.
In this episode, the Council found that the judge, presenting the number of cases and the level of workload in the proceedings of another judge, asks the general public a question “about the fairness of the charge”, which in itself can create a legitimate impression on the reader that the decision to initiate disciplinary proceedings is not “fair”.
“…The judge had to take into account that the presentation of a few details of the plea could not reasonably be sufficient to make accurate conclusions about the “fairness of the judgment”. The factual circumstances presented by the judge clearly present a one-sided situation, in which the subject of the investigation was essentially the violations of the right to a fair trial as a result of the length of the judicial investigation of other persons,” the SJC noted.
Zaruhi Nakhshkaryan: “Regards to Judge Anna Pilosyan.
People who voted in favor, you will live with this decision.
Not Pilosyan, not the society.
YOU.”
In this case, the SJC recorded that the expression itself calls into question the actions of the members of the Council who voted in favor of the decision to terminate the powers of Judge Anna Pilosyan. “…In the case of considering the position as a whole, evaluating the actions of the members who voted in favor of the decision by giving a negative connotation without any justification is beyond the scope of the judge’s right to freedom of speech and may form an opinion among the objective observer that the members of the Council who voted in favor of the decision participated to the adoption of the illegal act”.
Zaruhi Nakhshkaryan: “I consider that this decision could not have been made in the event that the Supreme Judicial Council also admits that such a collapse has occurred (due to the overload of judges). It turns out that the state did not fulfill its positive duty, instead individual judges were subjected to disciplinary responsibility, and one judge, who was a very good judge, was suspended; I find that this could not be done until the state solves the problem of overload. In other words, the state does not solve the issue of workload so that we appear before the SJC, I cannot understand this decision in any other way than that. Therefore, disciplinary responsibility could not arise until these problems are solved.”
Referring to this episode, the SJC noted that judges should demonstrate objectivity, caution and justify their approaches as much as possible. The SJC recorded that these thoughts were expressed when the decision in Anna Pilosyan’s case had not yet been published. “The judge, overstepping the boundaries of the right to freedom of speech, directly questioned the decision of the Supreme Judicial Council acting as a court.”
Zaruhi Nakhshkaryan: “The decision of the SJC was a surprise for me and problematic from the point of view of proportionality.”
The Council has again recorded that the full text of the decision of the SJC could not have been available to the judge, so with the said sentence, Nakhshkaryan questioned the fairness of the decision made by the SJC.
Based on the above, the Council found that the public’s confidence in the independence and impartiality of the judiciary is reduced by the statements made by Zaruhi Nakhshkaryan. The SJC also recorded that “from the point of view of the judge’s disciplinary responsibility, the fault is the judge’s attitude towards the act committed by him”.
“…The violation of the right to freedom of speech by the specified episodes is beyond reasonable doubt, therefore it could not be manifested in any other way than intentionality,” the decision states. It was also emphasised that Nakhshkaryan was subjected to disciplinary responsibility in 2021. “…A strict reprimand was applied to her, which has not been expired at the time of the examination of this case.”
It should be noted that Zaruhi Nakhshkaryan, together with her representatives, held a press conference on 9 March, where she announced that if the Chairman of the Supreme Judicial Council does not like someone, he can initiate proceedings and terminate the powers of that judge.
“The problem is not that disciplinary proceedings are initiated, but that it has become a tool, an optional tool. In other words, if the Chairman of the Supreme Judicial Council does not like someone, there may be various reasons, disciplinary proceedings may be initiated and that judge may cease his activity. In other words, only because someone does not like him, for example, the former Minister of Justice, the current Chairman of the Supreme Judicial Council.
Since the procedural violations that the judges allow are not the fault of the judges, it is the lack of the reforms that should have filled the gap, the future flows of cases, and the tendency to increase, cannot be calculated, Zaruhi Nakhshkaryan said.
Yevgenya Hambardzumyan
