On January 8, 2025, the Ministry of Justice of the Republic of Armenia published drafts of the constitutional law “On Making Additions and Amendments to the RA Judicial Code Constitutional Law,” the law “On Making Changes to the Law on Judicial Department,” and the law “On Making Additions to the Law on Public Service” on the unified website for publication of legal acts (e-draft.am).
According to the ministry, the purpose of the drafts is to provide judges with the possibility of confidential consultation on ethics and disciplinary issues, to increase the weight of votes of non-judge members in the Ethics and Disciplinary Issues Commission and the effectiveness of the commission’s activities, and to establish requirements for non-judge members in the commissions of the General Assembly of Judges by law.
According to the current regulations, the commission includes 6 judges and 2 representatives of civil society, but the professional community does not entirely agree with this format, emphasizing that, as in the Supreme Judicial Council, balance should be maintained here as well, with the participation of 5 judge and 5 non-judge members.
Others believe that international standards should be followed, that is, creating conditions where judges form a majority in matters concerning them.
It is also proposed to involve higher education institutions in the quota provided for civil society representatives.
The proposed change envisages reserving the right to nominate candidates for non-judge members of the Ethics and Disciplinary Issues Commission to non-profit organizations, establishing certain requirements. However, this change contains significant problems and risks.
The Armenian Lawyers Association has also expressed an opinion-observation and suggestions regarding the presented draft, emphasizing in this regard that the formulation “Non-profit organizations” is too broad and also includes state and community non-profit organizations, which may lead to a decrease in the role of public organizations and an increase in state influence.
Iravaban.net has approached the Supreme Judicial Council with an inquiry to obtain comments on several points of the draft, to find out to what extent the Council agrees with the proposed changes, and to what extent it does not.
The head of the Judicial Department, Nairi Galstyan, responded to the inquiry. To the question about what problems they see in the draft, no detailed answer was given; it was noted that the draft regulates a number of issues aimed at fulfilling the international obligations assumed by the Republic of Armenia, which is naturally positively assessed by the Supreme Judicial Council.
In our inquiry, also addressing the formulation of “non-profit organization,” we tried to clarify whether this is problematic, to which they responded that the replacement of the term “public organization” with the term “non-profit organization” in the draft aims to make the processes more inclusive.
According to the department, a foundation is also considered a non-profit organization, which can only operate within the framework of public benefit purposes, but according to the regulations of the Law, even foundations operating in the field of law do not have the opportunity to nominate candidates based solely on their organizational-legal form.
“Moreover, the Venice Commission and the Directorate General of Human Rights and Rule of Law of the Council of Europe, addressing issues related to the model of nomination of non-judges, noted that the authorities should discuss and develop the most appropriate model for the nomination of non-judge members, taking into account Armenia’s political and institutional realities, and in this context, the authorities can pay additional attention to the role of the professional community in the nomination process,” the response to the inquiry stated.
The current regulation requires the Prosecutor General to immediately inform the Supreme Judicial Council about initiating criminal prosecution against a judge. The draft provides for the requirement to inform the SJC Chairman and the Prosecutor General only in case of deprivation of liberty. To the question of how the SJC assesses this proposed change, whether the level of protection of a judge decreases with this change, they responded that the currently effective guarantee that “In case of initiating criminal prosecution against a judge not in connection with the exercise of his/her powers, the Prosecutor General immediately informs the Supreme Judicial Council” is also supplemented by another guarantee, namely: “The Chairman of the Supreme Judicial Council and the Prosecutor General are immediately informed about depriving a judge of liberty not in connection with the exercise of his/her powers.” This addition is a step aimed at increasing guarantees of judicial protection and independence.
It should be emphasized that experts in the field, even the Minister of Justice, have noted that the Ethics and Disciplinary Issues Commission of the General Assembly of Judges is not established and is not free from manifestations of corporatism. It is for this reason that the executive does not renounce its authority to submit motions regarding subjecting judges to disciplinary liability.
We inquired about how such a comment from the executive has been assessed, to which the following response was given:
“Both civil society and international partners, including the Venice Commission, constantly voice the possible risks of manifestation of corporatism and the introduction of mechanisms to make these risks manageable, and therefore all ongoing reforms should be performed in the above-mentioned context, aiming to neutralize possible risks and contribute to increasing public trust in this field. And as already cited in response to the 8th question, the mechanisms defined by the Draft can contribute to solving the raised issue.”
The proposed changes, nevertheless, contain legal uncertainties, and the professional community continues to voice observations and substantial legal issues regarding the changes proposed by the draft.
Mariam Shahnazaryan
