The Venice Commission (the European Commission of Democracy through Law, an advisory body of the Council of Europe) has published an opinion on the problems that have been in the center of the constitutional crisis between the Armenian National Assembly and the Constitutional Court. The opinion was made public on Monday, June 22 when amendments that do not provide for a transitional period proposed by the Commission were tabled in the Armenian parliament.
The National Assembly is convening an extraordinary session to discuss a bill on removing and replacing the President of the Constitutional Court and several judges.
The Justice Ministry had earlier requested the opinion of the Venice Commission, which in a document made public on Monday recommended introducing a new transitional period which would allow for a gradual change in the composition of the Court.
Currently, among the nine judges of the Constitutional Court, two judges have been elected after the parliamentary elections of December 2018 and according to the 2015 provisions, while the remaining seven judges were elected prior to April 2018, according to the 1995 and 2005 provisions. In early February 2020, the ruling majority proposed constitutional amendments to transitional Article 213, according to which the office of the Chairperson and judges of the Constitutional Court who were appointed prior to the entry into force of Chapter 7 of the 2015 Constitution shall cease (seven judges including the Chairperson). Under the amendments of 2015, judges of the Constitutional Court are elected by the National Assembly for a term of twelve years and only once, while the Chairperson is elected for a term of six years, without the right to be reelected.
The Commission says the current request by the authorities suggests a different and less intrusive approach than the one they submitted earlier, which sought changes to the retirement age or term of office of judges.
By an amendment to transitional Article 213, the new terms of office introduced in 2015 (twelve years) could take effect for all judges, including the judges appointed before the entry into force of 2015 amendments. This would mean that judges having already served 12 years would be dismissed, while judges who had been appointed before 9 April 2018 but who had served less than 12 years would stay in office until they had served a total of 12 years. Two sitting judges are already in office for more than twelve years, one judge is serving a second term, but this second term has not yet reached the twelve years limit.
A possible solution, the Commission says, may be to amend the current Article 213 and provide for the renewal of the Constitutional Court while envisaging a transitional period, which would allow for a gradual change in the composition of the Court in order to avoid any abrupt and immediate change encroaching on the independence of this institution.
The explanations in the request for the opinion suggest that the mandate of current Chairperson Hrayr Tovmasyan, who was elected on 21 March 2018 under the provisions of the 2005 version of the Constitution and whose term of office as judge and as chair ends normally in 2035 should cease and the new Chairperson should be elected by his peers for a 6-years single term according to the procedure prescribed by the Constitution currently in force.
The Commission says shortening the term of the President does not have the same impact on the independence of a court as shortening the term of all judges and the international standards appear to provide more leeway concerning his position.
“Changes in the term of office of the chairman of the Constitutional Court appear to be possible but require a cautious approach. It would therefore be advisable to envisage a transitional period instead of immediately terminating the mandate of the current chairperson of the court upon the entry into force of a possible amendment to Article 213,” the Commission says.
The Commission said it “regrets” that a proposal for constitutional amendments was introduced in the Armenian Parliament on the day of the adoption by the Venice Commission of the opinion, as the proposal “is not in line” with the recommendations in the opinion.