I Propose Former Minister to Collaborate with the Ministry of Justice: Rustam Badasyan

The Minister of Justice Rustam Badasyan addressed the observations made by former Justice Minister Davit Harutyunyan on his Facebook page. "On December 11, former Justice Minister Davit Harutyunyan presented his observations in four points regarding the draft law on amendments to the constitutional law on the Constitutional Court. While deeply respecting the approach of presenting professional remarks in this manner, I would also like to present my counterarguments in response to the former minister's observations.

1️⃣ In connection with the issue raised in Argument 1, it should be noted that the Ministry of Justice has never equated the model of early retirement provided for in the 4th part of Article 88 of the current constitutional law on the Constitutional Court with the proposed variant and has emphasized their differences in several cases. The citation of the existing early retirement system aimed to indicate that there is already an early retirement system in our legislation, the existence of which has been questioned by several individuals. Notably, Mr. Harutyunyan himself refers to the existing possibility as 'early retirement' in his text (Argument 1, third paragraph, second sentence). Mr. Harutyunyan stated that it is logical to grant early retirement rights only to judges who have served at least 12 years, justified from the perspective of unifying the status of CC judges since the maximum term for judges elected after the 2015 constitutional amendments is 12 years. This observation further substantiates the need for the implementation of the new model of the Constitutional Court post-2015 constitutional amendments, as Mr. Harutyunyan himself justifies the existing early retirement system by the necessity to unify the status of Supreme Court judges post-constitutional amendments.

The option we propose is also a tool to make the Constitutional Court what is intended by the Constitution with the amendments of 2015, taking into account the differences in the age of judges' tenure and the election mechanism, and so on. Moreover, it was stated that the differentiation of the status of the Constitutional Court judges according to the old and new judges contradicts the approach of the Venice Commission, where it is clearly noted that all CC judges, regardless of whether they were appointed before or after the entry into force of the 2015 constitutional amendments, should enjoy the same status (first sentence of paragraph 60 of the Commission's opinion). Meanwhile, the verbatim reading of paragraph 60 of the Venice Commission's conclusion is: 'First of all, the Venice Commission emphasizes that all judges of the Constitutional Court should have the same status, regardless of whether they were appointed before or after the amendments to the Constitution in 2015.' As for the system of early retirement for judges appointed before 2015, the Venice Commission previously criticized early retirement systems when they were mandatory or when they affected a large number of judges. However, this criticism cannot extend to cases where resignation is linked to the voluntary decision of Constitutional Court judges.

Thus, it can be concluded that the Venice Commission has acknowledged the requirement for all Constitutional Court judges to have the same status, while the early retirement system is obviously discussed in the context of judges appointed before the 2015 constitutional amendments. The argument regarding the differences in the income from the existing early retirement system and the proposed variant has not been refuted in any way; rather, it was emphasized by me when presenting the draft in the National Assembly.

2️⃣ The provisions mentioned in Argument 2 are logically inconsistent with the viewpoint presented in Argument 1, which claims that the existing early retirement system is justified from the perspective of unifying the status of CC judges (for judges serving at least 12 years). If the Constitution intentionally proceeds from the fact that the new model of the Constitutional Court should be implemented gradually, over time, as Mr. Harutyunyan argues, then any legislative provision that contributes to its faster implementation is unconstitutional and unacceptable; therefore, similar evaluations should also be voiced towards the existing early retirement system provided for in the 4th part of Article 88 of the constitutional law on the Constitutional Court, which has been qualified as 'logical and justified.' Furthermore, it is also unclear the justification that the new model of the Constitutional Court should be implemented gradually so that the entire composition of the Constitutional Court cannot be formed all at once and solely by one dominant political force. According to the constitutional changes of 2015, CC judges are elected from candidates proposed by the President of the Republic, the Government, and the general assembly of judges, by the National Assembly. This nomination system inherently ensures that candidates are presented by bodies that cannot belong to a single political force. When talking about Article 213 of the Constitution regarding the 2015 changes, it should not be forgotten that it also provides for the continuation of the powers of the President of the Constitutional Court in cases where a new election procedure is stipulated for the presidents of all other courts.

3️⃣ Regarding international experience, it must first be noted that referencing existing practices in the mentioned countries aims to present different manifestations of early retirement procedures, which has been emphasized multiple times by the authors of the draft. When providing justifications, the complete picture of international practice has been presented. For instance, the experiences of Hungary and Poland have been singled out as examples of a mandatory early retirement framework, with the draft justifications literally stating: 'The models of Hungary and Poland for judges' early retirement have been qualified as problematic by EU and ECHR institutions, including the ECHR, from the perspective of judicial independence, the principle of irremovability of judges and discrimination based on age (European Commission).'

4️⃣ The 2007 report of the organization 'Transparency International' was referenced, noting that it contains impartial criticism regarding the reforms applied in Georgia, characterized as a process of sending a number of experienced staff into reserve, being unable to fill courts with experienced personnel for a long time, bringing the judiciary under government influence, and in the case of the Supreme Court, 'forcing judges to resign through threats.' However, it should be noted that the criticism in the mentioned report was not aimed at the provisions of the draft but rather at the fact that the early retirement framework enshrined in the draft was used as a tool to threaten certain judges to terminate their powers and deprive them of all privileges.

5️⃣ Referring to the Venice Commission's conclusions on early retirement, it was noted that by limiting the opportunity to use early retirement with a very tight timeframe, the draft has turned the conditions outlined by the Venice Commission into a fiction, whereas it should be emphasized that the Venice Commission did not discuss timeframes for the enactment of early retirement and did not refer to the deadline stipulated by the draft for the exercise of this right.

✅ P.S. With sincere intentions, I propose Mr. Harutyunyan to cooperate with the Ministry of Justice, especially during the development of such important projects, and also to present professional proposals during their public discussion phase.