Published on 28 August 2023

FOURTH SECTION

Application no. 20140/23 Suren ANTONYAN against Armenia lodged on 16 May 2023 communicated on 13 July 2023

STATEMENT OF FACTS

The applicant, Mr Suren Antonyan, is an Armenian national who was born in 1969 and lives in Yerevan. He is represented before the Court by Mr A. Zrvandyan, a lawyer practising in Yerevan.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

At the material time, the applicant was a judge of the Court of Cassation until his retirement at the age of 65.

On 3 December 2015 the Court found a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention in the case of Amirkhanyan v. Armenia (no. 22343/08, §§ 40 and 48, 3 December 2015). In particular, the Court found that by admitting another appeal lodged by the same party and subsequently granting it the Court of Cassation had overturned a final judgment issued in the applicant’s favour in a property dispute and had thereby breached the principle of res judicata and the applicant’s right to peaceful enjoyment of his possessions (ibid., §§ 39-40 and 46-48).

On 26 December 2022 the Minister of Justice G.M. decided to initiate disciplinary proceedings against the applicant under section 146(1)(4) of the Constitutional Act on the Judicial Code (“the Judicial Code”) and asked the Supreme Judicial Council (“the SJC”) to impose disciplinary liability on the applicant. Notably, referring to the case of Amirkhanyan (cited above), he submitted that the Court of Cassation – the applicant had sat in the panel of that court – had breached the relevant domestic and Convention provisions by admitting another appeal lodged by the same party and then overturning a final judicial act.

The SJC was composed of four judicial and four lay members, including Chairman K.A. and E.T. Prior to his appointment to the post of Chairman, K.A. held the position of Minister of Justice and G.M. was his deputy. According to the applicant, prior to her appointment to the post of lay member, E.T. was also K.A.’s deputy.

On 3 January 2023 the applicant relying on, inter alia , section 71(2)(1) and (5) of the Judicial Code sought withdrawal of K.A. from the panel of the SJC – he did not make any withdrawal application with regard to E.T. In support of his application, he submitted, in particular, that on 27 January 2022 during an interview following the Government session, K.A. had stated that “G.M. is indeed my friend and we were also [business] partners. Since the post of the Deputy Minister of Justice, like that of other ministerial deputies, is a political post, [this] attests to the fact and is indeed the ground that you choose [as your deputy] not only a good but also a trustworthy specialist, who shares your ideas. In this sense, Mr G.M. meets [these] requirements. As far as his previous political views are concerned, I can only confirm that his political views and ideas, my own and those of others coincide”. The applicant stated that it was obvious from K.A.’s above statement that he was biased given his relationship with G.M. He also argued that it was common knowledge that G.M. and K.A.’s wife held sixty and forty percent respectively of the shares in a local law firm. Thus, K.A. had also economic links with G.M.

On 26 January 2023 the SJC allowed G.M.’s application and decided to terminate the applicant’s term of office on account of a fundamental disciplinary violation under section 142(6)(1) of the Judicial Code. As regards the applicant’s application seeking withdrawal of K.A., the SJC noted that G.M. had transferred his shares to fiduciary management and thus, having no control over the property at issue, could in no way influence K.A. in the exercise of his duties as Chairman of the SJC. The SJC held that the aforementioned fact was therefore not sufficient in itself to conclude that K.A. could be biased. It also referred to the case of Rustavi 2 Broadcasting Company Ltd and Others v. Georgia (no. 16812/17, § 363, 18 July 2019), where there was a dispute as to the impartiality of the president of a bench of nine judges that had reached a unanimous decision, and the Court found no violation. Besides, it referred to the Court’s case-law [1] to the effect that, when determining the impartiality of a judge, regard must be had to, among other things, the number of judges involved as well as their role in the judicial panel, whereas considering the secrecy of deliberations it was impossible to ascertain the influence of the judge(s) concerned. The SJC concluded that, regard being had to the above-mentioned considerations, the applicant’s application had to be rejected.

The decision of the SJC entered into force from the moment of its pronouncement and was final. No appeal lay against this decision before the ordinary courts.

RELEVANT LEGAL FRAMEWORK AND COUNCIL OF EUROPE MATERIAL

Article 61 § 1 provides that everyone has the right to effective judicial protection of his or her rights and freedoms.

Article 63 § 1 provides that everyone has the right to a fair and public hearing of his or her case, within a reasonable time, by an independent and impartial court.

Article 164 § 9 provides that in the case of a breach of the conditions of incompatibility, engaging in political activities, the inability to hold office for health reasons, or committing a fundamental disciplinary violation, the powers of a judge of the Constitutional Court shall be terminated by a decision of the Constitutional Court, whereas the powers of a judge shall be terminated by a decision of the Supreme Judicial Council.

Article 173 provides that the Supreme Judicial Council is an independent state body that guarantees the independence of ordinary courts and the judges of those courts.

Article 174 §§ 1, 2, 3 and 4 provide that the Supreme Judicial Council has ten members appointed for a non-renewable term of five years: five members appointed by the General Assembly of Judges, from among judges having at least ten years of experience as a judge; and five members appointed by the National Assembly, by at least three fifths of votes of the total number of deputies from among legal scholars and other prominent lawyers, who have only Armenian citizenship, with the right to vote, high professional qualities and at least fifteen years of relevant professional experience. Article 174 § 7 provides that the Chairman of the Supreme Judicial Council is elected by his or her peers, successively from among the members appointed by the General Assembly of Judges and those appointed by the National Assembly.

Article 175 § 1 provides that the Supreme Judicial Council decides, inter alia , on the matter of (7) subjecting a judge to disciplinary liability, and (8) terminating the terms of office of judges.

Sections 4(1), 5(1) and 83(1) of the Judicial Code lay down similar incompatibility requirements for judges and lay members of the Supreme Judicial Council. In particular, they may not engage in political activities, hold any position in State or local self-governing bodies (and in case of a judge, any position in State or local self-governing bodies not related to his or her status), any position in commercial organisations, or engage in entrepreneurial activities or perform other paid work, except for scientific, educational and creative work.

Sections 79 and 80 contain provisions similar to Articles 173 and 174 of the Constitution.

Section 71(1) provides that the judge must withdraw if he or she is aware of such circumstances which from the standpoint of an objective observer could cast reasonable doubt on his or her impartiality in the case. Section 71(2) lays down the grounds for withdrawal which, inter alia , include situations where (1) the judge is biased against the party to the case, his or her representative, attorney, or other participants in the proceedings, or (5) the judge knows or ought reasonably to have known that he or she or his or her next of kin has economic interest related the nature of the dispute or with one of the parties.

Section 90(2) provides that, when deciding on the matter of, inter alia , subjecting a judge to disciplinary liability or terminating his or her term of office, the Supreme Judicial Council acts as a court.

Section 92(2) provides that, when acting as a court, a session of the Supreme Judicial Council shall have a quorum if more than half of the total number of its members are present at the session.

Section 93(1) members of the Supreme Judicial Council shall participate in its sessions.

Section 94(6) provides that the decisions of the Supreme Judicial Council concerning the issue of, inter alia , subjecting a judge to disciplinary liability or terminating his or her term of office, shall be taken in a deliberation room by an open ballot by the majority of the votes of the members present at the session if at least half of the members of the Supreme Judicial Council voted for the decision.

Section 142(1) provides that a judge may be subjected to disciplinary liability for (1) a violation of provisions of substantive or procedural law while administering justice or carrying out other duties as court, committed with intent or gross negligence, and (2) gross violation by the judge of the rules of judicial conduct prescribed by this Code, committed with intent or gross negligence, except for the rule prescribed by section 69(1)(11) of the Code. Section 142(6) defines a fundamental disciplinary violation as, inter alia , (1) the violation specified under section 142(1)(1) which has resulted in a fundamental breach of human rights and (or) freedoms enshrined in the Constitution or international treaties ratified by Armenia or dishonoured the judiciary.

Section 146(1) provides that reasons for initiating disciplinary proceedings against a judge include, inter alia , (4) detection by the competent body of an act containing prima facie elements of a disciplinary violation following examination of a judgment rendered by the European Court of Human Rights.

Section 149(1) the Supreme Judicial Council, having examined the matter of subjecting a judge to disciplinary liability, may impose one of the following disciplinary measures: (1) a warning; (2) a reprimand; (3) a strict reprimand; (3.1) ban on inclusion in the list of promotions for a period of one year; (3.2) dismissal from the post of chairman of the court or chairman of a chamber of the Court of Cassation; or (4) termination of his or her term of office on account of a fundamental disciplinary violation.

Section 153(1) provides that in disciplinary proceedings, a judge shall have the right to: 1) acquaint himself/herself with the case material, make extracts and receive copies thereof; 2) put questions to the speaker, file objections, give explanations and file applications; 3) submit evidence and participate in the examination thereof; 4) participate in the hearing acting in person, or through a representative; and 5) receive reimbursement for legal costs if he or she has not been subjected to disciplinary liability. Section 153(2) provides that when examining the matter of imposing disciplinary measures on a judge by the Supreme Judicial Council, the judge shall enjoy the guarantees enshrined under Articles 61 and 63 of the Constitution.

Section 155(7) provides that a decision to subject a judge to disciplinary liability shall take effect from the moment of its pronouncement.

Section 156.1(1) provides that the Supreme Judicial Council shall examine, inter alia , an appeal against the decision to subject a judge to disciplinary liability if there is evidence or circumstance which the appealing party did not submit before for objective reasons and which could have reasonably affected the outcome of the proceedings.

Section 144(2) of the Act provides that factions have the right to nominate one candidate each for the post of [lay] member of the Supreme Judicial Council.

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D. The Supreme Judicial Council

31. As proclaimed by Article 175 (2) of the Constitution, in the disciplinary field the SJC “acts as a court”. The JC develops this constitutional provision further: it ensures the adversarial nature of the disciplinary procedures and guarantees procedural rights to the judge concerned (see Chapter 19, in particular Article 151 of the JC). Furthermore, members of the SJC enjoy some basic guarantees of their independence (see the rules on their appointment, tenure, etc. in Chapter 14). Thus, the role of the SJC in the disciplinary matters is generally compatible with Recommendation CM/Rec(2010)12 (p. 9) which indicates that disciplinary proceedings “should be conducted by an independent authority or a court with all the guarantees of a fair trial [...]”, and with CCJE Opinion no. 21, which recommends that “disciplinary proceedings should always be carried out essentially by judicial bodies (such as a disciplinary commission or court, or a branch of the high judicial council)”. One issue remains, however, unresolved – it is the absence of an appeal to a court of law against decisions of the SJC in disciplinary matters.

a. Appeals against the decisions of the Supreme Judicial Council in disciplinary matters

32. The proposed amendments contain a new provision on “appealing” decisions of the SJC (see new Article 156-1). However, this mechanism can hardly be characterised as a proper “appeal”. It rather resembles a re-opening by the same body (the SJC) of a previously decided case on newly discovered circumstances. The very notion of “appeal” implies the control by another body of the legality and merits of the decision based on the same (and not newly discovered) facts and evidence. So, the proposed mechanism cannot replace an appeal in the proper sense of this word.

33. This issue has been already discussed in the October 2017 Opinion. [The authorities argue that the Constitution does not allow such an appeal, which would at any rate be unnecessary because in disciplinary matters the SJC is acting as a court, both from procedural and institutional points of view, and the judge concerned may enjoy all the guarantees of “fair trial” before the SJC itself.

34. In the opinion of the Venice Commission, there are several reasons to seriously consider introducing an appeal against the decisions of the SJC. First, Article 6 of the European Convention on Human Rights (ECHR) guarantees, implicitly, the right of access to court. Assuming that a disciplinary sanction against a judge affects his or her civil rights and obligations, this judge must be given such access. The question is whether the Armenian SJC qualifies as a “court”. In the case of Ramos Nunes de Carvalho e Sá v. Portugal the Grand Chamber of the European Court of Human Rights (ECtHR) concluded that since the Portuguese High Council of the Judiciary was an administrative body, Article 6 would require “subsequent control by a judicial body that has full jurisdiction” (§ 132), i.e. full appeal. In other words, if the ECtHR finds that the SJC does not satisfy the requirements of a judicial body (contrary to what is proclaimed in Article 175 (2) of the Constitution), the necessity to have an appeal to a court of law would stem from the requirements of the European Convention.

35. Secondly, even if no question under Article 6 arises, the need to have an appeal to a court of law in disciplinary matters stems from a number of European documents, such as, for example, Opinion no. 10 by the CCJE. P. 39 of Opinion no. 10 says that “some decisions” of the JC such as “the decisions in relation to [...] discipline and dismissal of judges” should be “subject to the possibility of a judicial review”. The standards of the Committee of Ministers are more flexible: Recommendation CM(2010)12, in p. 69, says that disciplinary proceedings “should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction.” So, the CM Recommendation will be complied with if there is a possibility to challenge the sanction – but it is not specified whether the body hearing an appeal needs to be a court of law. In any event, the CM requires a second degree of jurisdiction in those matters, which is absent in the Armenian system.

36. Finally, the Venice Commission itself on several occasions recommended having an appeal against the decisions of the judicial councils in disciplinary matters, although acknowledging that this appeal may be of a limited scope. Thus, in an opinion on North Macedonia the Venice Commission recommended that “the Appeal Council should be able to annul decisions of the JC only in cases of gross errors in the application of procedural and substantive law”, and in an opinion on the Bosnia and Herzegovina it noted that the appeal to a court of law against the decisions of the HJPC was required “at least for cases where a serious penalty was imposed”. In the October 2017 opinion, the Venice Commission stressed that “in exercising its appellate review the appellate body should act with deference to the [Judicial Council] as regards the establishment of the factual circumstances and interpretation of the relevant rules of conduct”.

37. The possibility of appeals against the decisions of the SJC was omitted from the Constitution, and the Armenian authorities refrained from introducing it at the legislative level. The Venice Commission takes the arguments of the Armenian authorities about the meaning of the constitutional text very seriously, even though, in its opinion, the Constitution may be construed differently. Nevertheless, if a constitutional reform is envisaged, it invites the authorities to consider introducing a possibility of an appeal against decisions of the SJC in disciplinary matters, even if of a limited scope.

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19. Under the Constitution and the law, the SJC in disciplinary matters acts as a court. It ultimately belongs to the ECtHR do decide whether the Armenian SJC qualifies as a “court” within the meaning of Article 6 (see para. 34 of the 2019 Opinion), but for the Venice Commission this question can be answered in the affirmative, since the SJC possesses all main characteristics of a judicial body, both institutional and procedural.

20. In sum, in the opinion of the Venice Commission, the absence of an appeal to a court of law against decisions of the SJC in disciplinary matters does not raise an issue from the ECHR perspective. However, even if the current system is not in conflict with Article 6 of the ECHR, it might still fall short of other Council of Europe standards”.

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COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the SJC lacked independence because its four lay members were nominated and appointed through a non-transparent procedure, which was allegedly politicised. He submits, in particular that no public vacancies are advertised for lay members, but that political factions in the National Assembly, where the ruling party holds a majority, select and nominate candidates on the basis of unclear criteria. He further submits that, two of the lay members, namely Chairman K.A. and E.T., held positions as respectively Minister of Justice and his deputy immediately prior to their appointment to the SJC. The applicant also complains about the lack of a substantial majority of judges in the composition of the SJC. According to the applicant’s submissions, these factors undermined the independence of the SJC.

2. The applicant also complains under Article 6 § 1 that Chairman K.A. lacked impartiality because he had close ties with Minister of Justice G.M., who had initiated the disciplinary proceedings against the applicant.

3. Lastly, the applicant complains under the same Article that the Supreme Judicial Council did not satisfy the requirements of a tribunal and he was deprived of access to the ordinary courts to contest his dismissal.

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 the requirements of this provision?

In particular, was the SJC “independent and impartial”, within the meaning of Article 6 § 1 of the Convention, regard being had to the applicant’s complaints about (a) the procedure for selecting and nominating lay members for a vote by the National Assembly; (b) their independence from the executive and legislative powers; and (c) the composition of the SJC panel hearing his case.

3. In the light of the applicant’s allegation concerning the lack of impartiality on the part of the SJC Chairman K.A., has there been a breach of Article 6 § 1 of the Convention on this account (see Micallef v. Malta [GC], no. 17056/06, §§ 93-99, ECHR 2009; and Denisov v. Ukraine [GC], no. 76639/11, §§ 60-65, 25 September 2018)?

4. If the SJC did not comply with the requirement of an independent and impartial tribunal, was the restriction of the applicant’s access to the ordinary courts to contest his dismissal from the post of judge compatible with the requirements of Article 6 § 1 of the Convention (see Grzęda , cited above, §§ 342-43)?

[1] In particular, Fazlı Aslaner v. Turkey , no. 36073/04, §§ 36-43, 4 March 2014; Stoimenovikj and Miloshevikj v. North Macedonia , no. 59842/14, §§ 39-41, 25 March 2021; and Karrar v. Belgique , no. 61344/16, § 36, 31 August 2021.