Constitutional Court Judges Are Appointed to Protect the Constitution, Not to Promote the Political Agenda of the Majority, Says Venice Commission President

Recently, the Venice Commission published a unified opinion regarding legislative issues in Armenia, addressing the matter of judges at the Constitutional Court retiring early. This issue has sparked numerous discussions, prompting SHANTNEWS to reach out to the President of the Venice Commission, Gianni Buquicchio, for clarification on several questions. Below is the full interview.

– Mr. Buquicchio, could you clarify the matter of early retirement for judges of the Constitutional Court of Armenia? There are some misunderstandings regarding the formulations found in the unified opinion.

– I believe that the unified opinion on this matter is quite clear. The Venice Commission has always been critical of forced retirement for judges, such as through the mandatory reduction of retirement age, as was the case in Poland. However, in your situation here in Armenia, a proposal has been presented to judges that they can accept or decline. On the other hand, we are not naive and are aware that there is a risk of judges being pressured to accept this proposal through other means. That is why, while knowing that early retirement is not contrary to European standards, we emphasized that it must truly be voluntary.

Additionally, we are concerned that if too many judges accept this proposal at once, the work of the Constitutional Court could be paralyzed for some time. Hence, we have requested the Armenian authorities to consider ways to avoid this situation.

– As we understand, you insist on the principle of “strictly voluntary” retirement, but how can one be sure that the proposed mechanism can genuinely guarantee this principle of voluntariness? How can the fairness of the process be verified? How can discrimination be avoided?

– You are understanding correctly. The primary task of the Venice Commission is to analyze legal texts. If we look at what is written in the bill, everything is very precise: nothing compels the judges to accept the proposal. Whether there will be examples of undue pressure on judges depends on the facts. The Venice Commission has neither the mandate nor the authority to examine those facts.

Nevertheless, as I mentioned, based on our previous experiences in other countries, we know that the principle of voluntariness on paper is not always truly voluntary in practice. Furthermore, we know that in a short time, the President of the Constitutional Court in Armenia has faced many pressures, and numerous procedures have been executed against him. The timing and procedural constraints lead to pressure on the President, who deserves respect as the head of one of the key institutions of the state. On the other hand, the Minister of Justice stated clearly during the plenary session of the Venice Commission that the Armenian government does not exert any pressure on judges and will not do so in the future. I consider that to be a correct approach, and I will continue to closely monitor the situation.

– In the unified opinion, it is mentioned that the simultaneous retirement of several judges could affect the effective functioning of the Constitutional Court. How do you assess this potential concern? Can you point to another similar example?

– We do not know how many judges will decide to accept this “golden handshake,” if such are offered; hence, any prediction is speculative. However, if all 7 judges appointed under the old law decide to leave, this could paralyze the court’s work for some time. The government should consider how to avoid this situation. As for other examples, I can recall the case of Romania, where the mechanism for early retirement was extended to a large number of senior judges, which harmed the quality and effectiveness of the entire judiciary in Romania. In Armenia, this risk is not as high since it will be confined to the Constitutional Court; however, it is still crucial that this institution operates without interruptions.

– The Venice Commission considers it unacceptable that the composition of the Constitutional Court changes every time the government changes. Why do you find this unacceptable?

– The mandate of a Constitutional Court judge is non-political. This means judges are appointed to protect the Constitution and not to promote the political agenda of the winning governing majority in elections. That is why the renewal of the Constitutional Court should not be synchronized with political cycles. Judges elected by the previous majority may even be more prepared to critically assess the constitutionality of measures proposed by the current majority. Nevertheless, even judges appointed by a particular parliamentary majority have an obligation to not owe gratitude to that same majority. This is a matter of principle; in practice, achieving this synchronization is challenging. That is why we have the approach that there should be other mechanisms, for instance, the requirements for a qualified majority, to ensure that the current majority does not have a dominant role in the selection and appointment of candidates.

This interview can be found in full on the original source site.