Venice Commission Responds Positively to Armenian Authorities' Proposal

The Ministry of Justice announced on May 13, 2020, that it had presented three legal questions to the Venice Commission concerning the implementation of a new model of the Constitutional Court envisioned by the constitutional amendments of 2015, the clarification of the scope and timeline for the preliminary review of constitutional amendments by the Constitutional Court, and the possibility of the National Assembly canceling a previously announced referendum, which was suspended due to a state of emergency declared because of the pandemic.

The Commission's opinion has been published, positively addressing the authorities' proposal. In relation to the first question, it effectively analyzed that the amendments of 2015 envisioned a model for the Constitutional Court in line with European standards, and that a European standard is also that judges continue in office until the expiration of their terms after changes in terms of office, as was stipulated before the amendments.

Furthermore, the Commission noted that the aim of the proposed amendment is not to change the model of the Constitutional Court in accordance with democratic standards and to regress from this model, nor to introduce rules that would allow the political majority to control the process of appointing judges. On the contrary, it is clear that the authorities’ goal is to ensure that the new provisions are implemented and that the composition of the Constitutional Court reflects the democratic standards introduced by these provisions as soon as possible. This is a legitimate aim.

The Commission also acknowledged that the time frame between the adoption of changes in this context and their final implementation could take up to 20 years, which is significantly longer than usual and leads to the blockage of the implementation of the 2015 amendments. Regarding the presidency of the court, the Commission concluded that shorter terms for court presidents are acceptable in terms of European standards, which could foster a more collegial rather than hierarchical atmosphere among judges.

Addressing the situation in Armenia, the Commission noted that the current president of the Constitutional Court would serve for 17 years, which is longer than even the term limits set by the new Constitution for judges. This could lead to an over-dominance of the president's role and is not conducive to creating a collegial atmosphere among judges. Therefore, the Commission’s conclusion is that unlike the terms of judges, authorities have greater discretion regarding the term of the president and that this term could be shortened while also recommending the establishment of a transitional period.

The Commission also accepted the authorities’ claim that the election of the current president of the Constitutional Court, in accordance with the provisions of the 2005 Constitution on March 21, 2018, which took place just three weeks before the 2015 amendments came into effect, contradicts the spirit of these amendments aimed at guaranteeing the independence of the judicial system and the Constitutional Court from the Parliament while ensuring the rotation in the presidency. The current president of the Constitutional Court was elected when the new rules regarding terms in office had already been long accepted, thus his case is entirely different from that of the president elected under the previous version of the Constitution (referring to G. Harutyunyan's case), when it was not known that his term would be shortened.

In summary, regarding the first question, the Commission accepted the government's proposed alternative, specifically noting that for Armenia, in this exceptional situation, a possible solution could be the amendment of Article 213, establishing the election of new judges of the Constitutional Court while providing for a transitional period that would allow gradual changes to the composition of the court. The Commission emphasized that authorities could more effectively assess the duration of such a transitional period.

At the last moment, a paragraph was added to the Commission's opinion, in which the Commission referred to the constitutional amendments introduced on the same day by the Members of the National Assembly, expressing regret regarding the inconsistency with the proposals in the Opinion, although the Commission did not specify in that paragraph which specific proposal in the Opinion the project was inconsistent with, it is still clear that it refers to the proposal to establish a new transitional period for judges who have served more than 12 years.

Regarding the second question, the Commission also found the government’s proposal acceptable, particularly noting that restricting the verification of the amendments against the immutable provisions of the Constitution complies with European standards. Additionally, it noted that the constitutional ‘immutability’ should be interpreted narrowly. The proposed short deadline for consideration was also deemed acceptable.

It is noteworthy that the Commission specifically addressed the statement made by representatives of the Constitutional Court during meetings, indicating that the Constitutional Court's review of constitutional amendments could encompass the entire Constitution. In particular, the Commission warned the Constitutional Court against extensive interpretation of its own authority to conduct preliminary reviews. It was emphasized that from the Commission's perspective, it would be problematic if the Constitutional Court were to annul constitutional amendments based on abstract principles that have little connection to the immutable provisions of the Constitution or based on its own broad interpretation of those provisions.

‘For the Venice Commission, it is essential that the constitutional institutional principles related to the independence of the Constitutional Court are clearly distinguished from the personal interests of judges. In this regard, the Constitutional Court must widely demonstrate self-restraint to avoid even the appearance of prioritizing judges' personal interests when reviewing changes related to the Court,’ stated the Opinion.

Concerning the third question, the Venice Commission found that it is a general principle of public law that regulations and decisions adopted by an authorized body can be revoked by a new decision adopted by the same body through the same procedure. The Venice Commission went beyond the presented legal questions and made observations on several issues that have been acknowledged by the Government and will be comprehensively addressed during the constitutional comprehensive amendments.

In conclusion, it should be noted that the Venice Commission has presented a positive opinion regarding the three legal questions raised by the authorities, emphasizing the legitimate aim of the proposed solutions and their compliance with European standards.