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Institution of integrity testing of judges to be introduced; drafts approved by Government

21/11/2019

The drafts of the laws "On making amendments and supplements to the Constitutional Law "Judicial Code" and the Constitutional Law "On the Constitutional Court"" and of related laws were approved during today’s sitting of the Government of the Republic of Armenia.

According to Minister of Justice Rustam Badasyan, the main purpose of those drafts is to ensure effective and complex legal grounds for assessment of the integrity of judges in the following directions: property status (checking of lawfulness of property), professionalism and respect for human rights, impartiality (making a decision free from certain ties, influences). The solutions proposed in the related package will also extend to the processes of integrity testing of other declarant persons.

The following are the principles adopted in the mechanism that is being proposed for assessment of the integrity of judges:

 

(a)    integrity must not be assessed through an ad hoc toolkit and must not be temporary. Instead, the process will be ongoing, and judges will permanently undergo this assessment upon adoption of the package of the drafts.

(b)    a new, ad hoc body will not be established to assess the integrity of judges; a body endowed with the constitutional mission to ensure independence of the judicial system — the Supreme Judicial Council — will be responsible for solving the issue.

 

The following are the main reforms proposed in the package:

1.     1.     The rules of conduct of judges and the grounds for subjecting a judge to disciplinary liability have been specified.

a.     In particular, rules of conduct have been added, the violation of which questions the independence, impartiality and incorruptness of a judge, i.e. the Draft envisages setting the submission of a complete declaration of property, income and interests as a rule of conduct of a judge, as well as, in case of change of property, submission of proper materials in the cases and as provided for by the Law "On the Commission for the Prevention of Corruption", which will substantiate the fact that the change of property is substantiated by legitimate incomes;

b.     all points emphasised that disciplinary violation may be considered as a ground for liability only if it has been committed intentionally or by gross negligence;

c.     the institution of gross disciplinary violation, which gives rise to confusion, has been removed, and the scopes of essential disciplinary violation have been specified;

d.     the detection of an act that contains elements of prima facie disciplinary violation following examination of an act rendered by an international court to which the Republic of Armenia is a party or by another international institution that records a violation of international obligations, in relation to which the Supreme Judicial Council will, once again, render the final decision, has been added to the list of reasons (not grounds) for instituting disciplinary proceedings.

 

2.     The types of disciplinary penalties have been extended. In particular, moderate disciplinary penalty have been added to the types of disciplinary penalties enshrined by the existing Code in order to introduce proper and proportionate liability tools. In particular, the new types of penalty are the following: ban on being included in the subsequent promotion list of judge candidates during regular completion of the list and dismissal from the position of chairperson of a court or Chairperson of the Court of Cassation.

 

3.     The procedure for subjecting a judge to disciplinary liability has been improved.

 

Thus:

(a)    the Commission for the Prevention of Corruption has been included among the bodies with the power to institute disciplinary proceedings in case of detecting problems in the declarations of property, income and interests;

(b)    it is envisaged to replace the Disciplinary Commission —for a 5-year term and composed only of judges — with the Ethics and Disciplinary Commission, which is elected for a term of 2 years and the members of which are not only judges, but also lawyer-scholars nominated by non-governmental organisations, and it is also envisaged to engage representatives of non-governmental organisations in the Educational Commission;

(c)    the terms for instituting disciplinary proceedings have been extended, as the existing terms objectively do not provide the bodies instituting proceedings with the opportunity to give an adequate response to disciplinary violations;

(d)    the Supreme Judicial Council has been provided with additional tools for effective examination of the issue of subjecting a judge to disciplinary liability. In particular, according to the Draft, the Council may, on its own initiative, invite witnesses, assign an expert examination and request evidence, something that, under the current regulation, can only be done with the motion of a judge;

(e)    a mechanism for appealing the decision on subjecting to disciplinary liability has been envisaged, but there are constitutional impediments to make it complete.

 

4.     The regulations for checking the qualification of contenders for judge candidates have been improved; a mechanism for appealing the results of the written exam, as well as the system for psychological test developed for checking the qualities required particularly for a judge before the interview stage, have been introduced. In addition, an open voting has been prescribed for selecting the candidates; this will increase transparency of the process.

 

1.     5. It is also important to lower the age limit of the contenders for judge candidates from twenty-eight to twenty-five, as well as to review the conditions for including contenders for judge candidates and lawyer-scholars in the list of judges for promotion. This change will allow for engaging in the judicial system young persons not having suspected or discrediting links, not dependent from or linked to other representatives of the system. It is necessary to emphasise that the Venice Commission, examining the issue related to the minimum age limit for judge candidates, has stressed that the European standards concern selection based on merits and rules out discrimination and do not envisage a universal standard for age.

 

 

2.     6. Performance evaluation of judges has been thoroughly regulated, a special commission for implementation of that function has been envisaged.

 

3.     7. Adequate amendments have also been made to the Constitutional Law "On the Constitutional Court". In particular, the Law has been brought in line with the Judicial Code, with respect to the part relevant to rules of conduct, including proper submission of declarations and provision of necessary materials to the Commission for the Prevention of Corruption. Besides, the model of bringing by the Commission for the Prevention of Corruption of a motion to the National Assembly has been proposed as an option for initiating disciplinary proceedings against a judge of the Constitutional Court as a result of checking of the property status; the National Assembly can apply to the Constitutional Court to terminate the powers of a judge of the Constitutional Court on the ground of a essential disciplinary violation.

 

4.     8. For the purpose of achieving the goals adopted under the package of drafts, it is also necessary to make reforms in the laws on the fight against corruption that will have a positive impact on the assessment of integrity of not only judges and judge candidates, but also other declarant public servants. The following is proposed in this context:

1.     From the perspective of effectiveness of the process of analysis of declarations, importance is attached to enlargement of the family of a declarant official; at the same time, it is also proposed to envisage liability for submitting a situational declaration for the persons affiliated to the official, prescribing also liability for failure to fulfil this obligation. At the same time, the possibility of the Commission for the Prevention of Corruption to appeal the decision on submitting a situational declaration has been prescribed by the draft as a guarantee for ensuring protection of the rights of the person.

2.     2. It is proposed to provide the Commission for the Prevention of Corruption with the opportunity to request and obtain information about bank, commercial and insurance secrets.

1.     The powers of the Commission for the Prevention of Corruption regarding the integrity of judges and judge candidates and their involvement in corruption transactions are being specified.

2.     It is proposed to return to the competition procedure for formation of the Commission for the Prevention of Corruption in order to ensure compliance with international standards and transparency of the process.

3.     It is also proposed to establish an exhaustive list of corruption-related crimes under an annex to the Criminal Code of the Republic of Armenia, in accordance with the recommendations of the Organisation for Economic Co-operation and Development (OECD).

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