There Cannot Be a Situation Where Vahe Grigoryan and Arman Dilyan Stay in Charge of Constitutional Justice: Arpine Hovhannisyan

Rumors regarding the supposed wording and comments from the Venice Commission on the early retirement of Constitutional Court judges have been circulating for two days. Given the public interest in this issue, Arpine Hovhannisyan presents a translation of the relevant section of the recently published official conclusion:

“58. The Venice Commission wishes to emphasize that the security of tenure of Constitutional Court judges is an essential guarantee of their independence. The immovability of judges is designed as a shield against the influence of the political majority of the day. It is unacceptable for any new government to be able to replace sitting judges with newly elected ones of its choosing.

59. Armenian authorities plan an exceptional scheme for early retirement. They cite the implementation of the Constitution as amended in 2015 in the post-revolutionary context and believe that there must be an immediate transition from the life tenure of Constitutional Court judges (which was ensured by the Constitution until the amendments of 2015) to a fixed term of office (as provided by the current Constitution).

60. First of all, the Venice Commission emphasizes that all judges of the Constitutional Court, regardless of whether they were appointed before or after the 2015 amendments, must be treated under the same conditions.

Regarding the scheme for the early retirement of judges elected before the 2015 amendments, the Venice Commission criticized early retirement schemes that had a mandatory nature and affected a large number of judges. However, criticism cannot be raised in cases where resignation is based on the voluntary decision of the Constitutional Court judges. As a principle, if early retirement remains an EXCLUSIVE VOLUNTARY option, meaning that there should be no arbitrary (political and personal) distinctions made concerning the judges, or when it is not designed in such a way that it influences the outcomes of the cases under review, then there are no criteria that would guide the Venice Commission to oppose such a scheme.

Nevertheless, the potential for multiple judges, even seven out of nine judges, to simultaneously retire could disrupt the effective functioning of the court. For this reason, the Venice Commission advises the Armenian authorities to reconsider the proposed scheme to mitigate this concern.”

Once again, the conclusion of the Venice Commission clearly indicates that A. The Commission makes no distinction between judges appointed before the 2015 constitutional amendments and those appointed after. B. The Commission considers only one scheme for early retirement, which is when Constitutional Court judges retire VOLUNTARILY, meaning no administrative or any other mechanisms should be applied (a reminder to Osipeyan and Vanetsyan). Judges should retire early only if they wish to do so, not as a sole means of avoiding ARBITRARY (POLITICAL AND PERSONAL) distinctions concerning them. Furthermore, the Commission emphasizes that sending judges into early retirement should not become a means to influence the outcomes of cases already underway at the Constitutional Court. C. Another very important observation is that the Commission discusses the risk of seven out of nine judges resigning and thus suggests revisiting the proposed provision in light of this concern, meaning there cannot be a situation in the country where Vahe Grigoryan and Arman Dilyan remain in charge of Constitutional justice.