Published on 19 December 2022

FOURTH SECTION

Application no. 19022/22 Gagik KHANDANYAN against Armenia lodged on 25 March 2022 communicated on 30 November 2022

SUBJECT MATTER OF THE CASE

On 4 October 2021 the Supreme Judicial Council (“the SJC”), having examined the conclusion of the Commission for the Prevention of Corruption, found that the applicant, who was a judge of the Civil Court of Appeal at the material time, had breached the conditions of incompatibility with the performance of judge’s duties and dismissed him from his post. In particular, the SJC concluded that, following the purchase of 100% shares of a limited liability company and prior to state registration of his ownership, the applicant had been engaged in carrying out managerial functions – he had participated in the general meeting of the company as its sole shareholder and had taken decisions regarding, inter alia , the amendment of its charter and the appointment of an executive director which, according to the SJC, amounted to holding a position at a commercial organisation and was thus in breach of the conditions of incompatibility set out in section 31(6)(4) of the Public Service Act.

When deciding on the applicant’s case, the SJC was composed of eight members – three professional judges and five non-judicial members, including G.J., the then Acting President of the SJC.

The applicant complains, under Article 6 of the Convention, that the appointment of G.J. as member of the SCJ was not in accordance with the law since he had been elected in disregard of the statutory age limit; that the SJC was not an independent tribunal because the ruling political party had a considerable influence in the selection and appointment procedure of its non-judicial members, which was neither transparent nor competitive and did not follow any pre-defined criteria; and that there had been no judicial review of his dismissal, in breach of his right of access to a court.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention applicable to the proceedings in the present case ( Grzęda v. Poland [GC], no. 43572/18, §§ 257-64, 15 March 2022)?

2. Assuming that Article 6 § 1 of the Convention was applicable, did the applicant have access to a court satisfying all the requirements of this provision? In particular:

(a) Can the Supreme Judicial Council be considered to be a “tribunal established by law”, within the meaning of Article 6 § 1 of the Convention ( Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, §§ 244-51, 1 December 2020)? In particular, was the appointment of G.J. to the SJC in compliance with the domestic law?

(b) Was the SJC “independent”, within the meaning of Article 6 § 1 of the Convention ( Oleksandr Volkov v. Ukraine , no. 21722/11, §§ 103-09, ECHR 2013; Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 144, 6 November 2018; and Guðmundur Andri Ástráðsson , cited above, § 234)?

3. If the answer to the second question is negative, was the restriction of the applicant’s access to the ordinary courts to contest his premature dismissal from the post of judge compatible with the requirements of Article 6 § 1 of the Convention (see Grzęda , cited above, §§ 342-43)?