VENICE, Italy – The Venice Commission has published on its website the full text of the opinion on the draft Judicial Code of Armenia.
This opinion, which was requested by the Minister of Justice of Armenia Arpine Hovhannisyan, was adopted by the Venice Commission at its 112th Plenary Session in Venice from October 6-7.
In order to prepare this opinion, a delegation of the Commission visited Yerevan, met with Parliamentarians, executive authorities, judges, and other local stakeholders and representatives of civil society.
The prepared Draft Code has implemented positive changes brought by the constitutional reforms.
“Legal mechanisms proposed by the Draft Code are, in general, compatible with the European standards and best practices, they enhance the independence of judges and potentially may strengthen the public trust in the judiciary,” read a part of the report.
The report added that at the meetings in Yerevan, the rapporteurs were told that new procedural codes are being developed in parallel with the Draft Judicial Code.
“Some of the principles set in the Draft Code (for example, regarding the role of the Court of Cassation in ensuring the uniform interpretation of the law, setting out a procedure of selection of cases for examination by the Court of Cassation, setting the rules regarding reopening of cases of resolving jurisdictional disputes, etc.) may be regulated in those other codes,” said the report.
The following is the conclusion of the report:
“The Draft Judicial Code implements positive changes brought by the constitutional reform (in particular, as regards the Supreme Judicial Council and other collective bodies of the judiciary) and is generally compatible with European standards and the European best practices (with few exceptions discussed in the present opinion). At the same time, it is an extremely long, detailed and complex document that would certainly benefit from simplification. Furthermore, it has a number of lacunas and inconsistencies, which need to be addressed. The most important recommendations of the Venice Commission in this respect are the following:
- It is recommended to provide for a common sitting of all chambers of the Court of Cassation, in order to harmonize the case-law of different chambers and settle possible jurisdictional disputes.
- Lower courts may be allowed to derogate from the established case law, but only if there are “strong arguments” justifying such departure and under control of the Court of Cassation. Incremental development of the case law by the courts should not be assimilated with the law-making, which is the prerogative of Parliament.
- The Draft Code should define how the results of the written qualification exam are accounted in the process of recruitment of candidates.
- Rules of conduct and duties of the judge should be formulated more precisely, preferably with reference to specific types of behavior. The multitude of vague and overlapping formulas now contained in Articles 60 – 62 should be removed or merged into one general formula, which should be interpreted narrowly.
- Liability for inappropriate political engagement of the judges should be imposed within the framework of disciplinary proceedings and should be governed by the principle of proportionality.
- The Draft Code should provide for a possibility of appeal against decisions in disciplinary matters.
- The Judicial Department may remain the central body performing administrative support functions vis-à-vis the courts, provided that its head is appointed by the Supreme Judicial Council and is answerable to it.”
The Venice Commission is an advisory body of the Council of Europe, composed of independent experts in the field of constitutional law. The Commission’s official name is the European Commission for Democracy through Law, but due to its meeting place in Venice, Italy, where sessions take part four times a year, it is usually referred to as the Venice Commission.