Politically motivated call for judiciary official’s resignation 'unrelated' to country governed by rule of law – Hrayr Tovmasyan

In an interview with Tert.am, President of the Constitutional Court Hrayr Tovmasyan commented upon the ongoing developments around the top judiciary body, addressing also the criminal case against former high-ranking government officials, etc.

Mr. Tovmasyan, the political – and probably also legal – processes in Armenia seem to be evolving around one single judicial proceeding, i.e. – the [criminal] case against [former President] Robert Kocharyan and others. You and the Constitutional Court have now willy-nilly found yourselves at the center of those developments. Would you elaborate on the current stage of the criminal case and the decision to suspend the proceeding to apply to the European Court of Human Rights and the Venice Commission?

To be frank, I haven’t closely followed the political developments over the recent period to share your opinion that the entire political life is evolving around one single trial. Yet, the fact itself is not absolutely good for any country - given that political phenomena should evolve around nationwide elections or other equivalent developments. We cannot deny, anyway, the existing great public interest - by both the political circles and the legal community - as this is not a standard case for the Constitutional Court. It is not absolutely because of the public interest but rather due to the fact that the contested norm essentially and substantially differs from the other articles – in both structure and nature. Particularly, it contains a reference to another legal act, which is more generalized with the degree of its abstact content. Secondly and most importantly, we have never had such a practice – to our glory and honor – to apply the kind of norm. For me, however, it is admittedly an ordinary case - regardless of the political and legal interest. It is a just routine case for both myself and other members of the Constitutional Court. Calls are jokingly voiced at times for removing names and surnames, because it is not for us to decide, after all, the burden of guilt and complicity to determine the measure of punishemnt for a specific individual. All we decide is the constitutionality of the article that serves as grounds for leveling criminal charges. Now about the second part of your question; while in other cases the Constitutional Court has a permissibitliy threshold for errors in a very low percentage - 0.0001%, in this particular case, no errors are allowed. This is why, I think, the Constitutional Court cannot afford the luxury of a failure to use available resources, which the European Court and the Venice Commission can virtually offer us. That doesn’t mean, certainly, that the Court does not have the necessary resource to study and resolve the case. Yet, the collected resource in the international organizations we are members of need to apply to this case to meet our objectives. Also notably, both the European Court of Human Rights and the Venice Commission do not issue ‘final verdicts’ in any case and do not even decide the conformity of the given article to the [European] Convention [on Human Rights]. Moreover, they are not decision-makers in matters relating to constitutionality. But their analysis, experience, the study of other European countries’ practice and the summary of their practical experience, the standards in other European countries, particularly in the frameworks of criminal law, will be of help. They will assist us in the decision-making, which we are going to prioritize. Yet repeating myself, I have to state again that the Constitutional Court itself is to pass the final act regarding this particular case. Those are advisory opinions or friendly recommendations if translated literally. That, I should say, is a new institution for us, which went into effect as early as last August. Hence, it would be wrong to insist now that a vast number of applications have been filed with the European Court ever since. Their number, to the best of my knowledge, is around ten. So we need to wait and see. I am confident that we will return to that, considering also the fact that we are going to receive those opinions within the shortest possible timeframes to resume the proceeding.

Although you mentioned that you treat all the cases in a similar way, there are, nonetheless, reports about pressures upon the Constitutional Court. Those pressures seem to have increased in number after the Constitutional Court moved to take Robert Kocharyan’s appeals under proceeding. Do you see any connection between the two?

I would recommend journalists to be cautious a little bit about using the wording. Pressure upon the judiciary amounts, after all, to a criminal offence. That’s my response. And the hazards stemming from such pressure are tantamount to those stemming from the public perception that they really exist. If you, as a journalist, raise the issue, pointing out to the available reports, then such a connection is visible also in the public perceptions. The phenomenon exists, which is equally dangerous. What poses hazard is also the fact that the overall confidence in the judiciary will essentially decrease, diminishing the value of the decisions. So I would recommend everybody to refrain from not only similar pressures - which implies criminal accountability - but also steps that can shape the public perceptions that those pressures do really exist.

The power transition in Armenia is now an accomplished fact. Do you think that in countries which faced a government change, the replacement of the judiciary is a must?

To countries where a change of the political authorities leads also to changes in the judiciary, terms such as “legal” or “democratic” are not applicable. The main groundwork of the judiciary’s independence is its permanence. If they can change for political reasons, forget about any independence, as the incumbent political authorities themselves will decide who will represent the judiciary power. So the key guarantee of the judiciary’s independence is its longer tenure compared to the bodies (whether the president of the Republic or the National Assembly) that contrubuted to their formation. Hence, the repeated allegations that changes in the judiciary were necessary after the political change have nothing to do with either a state governed by rule of law or a democratic country. Otherwise, it is recommended to be honest enough to state in the Constitution that a change in the political authorities implies a change also in the judiciary. It will be an honest move, yet in conflict with all our international commitments. Notably enough, judiciary authorities are the branch of power enjoying the highest level of independence, but even quasi-indpendent insitutions such as the regulatory commission or the Central Bank do not undergo changes in the wake of such political reforms. Hence, this kind of allegations are unrelated [to the vision of democracy building]. Any problem in the judiciary must be resolved through independent efforts, but a politically motivated call for the resignation of a representative of the judiciary has nothing to do with a rule of law state. If there are problems, and people whose behavior and actions are incompatible with the existing demands, why not then find the necessary mechanism to rapidly get rid of such individuals? As opposed to the political authorities, a non-specific criticism against the judiciary is not acceptable at all. It may be against the parliament, which represents a political team. In a parliamentary government, the burden of responsibility lies upon the entire political team, including the executive. But all that has to be specific when it comes to the judiciary. General criticism, general terms and notions are unacceptable here, as every judge is independent in exercising justice. That person is not to blame for the errors of another judge. In the case of the executive authorities, however, every minister has an equal share of responsibility. Hence, the judiciary, in this sense, is in an inequal condition. The principle of equality of arms does not work whenever the cricitism is voiced by the executive or legislative authorities, because unlike the latter two, the judiciary does not have the political team to respond to all that from different podiums. The arms for the judiciary are its decisions enabling them to enter into a dialogue with the public. That should be the practice, I think, to make the criticism concrete and specific, as well as add a scientific element when it comes to a concrete decision. Is it adequate at all to say that the judiciary does not enjoy confidence, that they are corrupt, etc? Those generalized notions and approaches are not appropriate at all in the case of the judiciary.

Prime Minister Nikol Pashinyan recently gave an interview to Radio Liberty, voicing his evaluation of the activities of the Constitutional Court. How would you comment on that?

I have already had the occasion to state that I am obliged to demonstrate political restraint and neutrality, committed to my oath and the law “On the Constitutional Court".  The temptation to gain access to a political podium to give political answers is really great, but I have to refrain from that given that the questions themselves were political. So I cannot comment on them. I can only say that certain questions were offensive; they sounded almost as degrading statements, especially against a representative of the judiciary.

Mr. Tovmasyan, a little bit more about pressures; those reports are accessibble to the public regardless of your agreement or disagreement. Are there any pressures - direct or indirect - upon you and other judges of the Court? The reports are available in the press; even the law enforcement authorities are said to have been given specific instructions to probe into the biographies of judges to expose other facts.

Those are nothing but reports 'hanging in the air'. Should they ever be confirmed though, the stakes will be high indeed, as everybody will face accontability regardless of status and position.

A topic widely discussed among lawyers today is Article 213 of the Constittution [Holding Office on the Part of the Members and Chairperson of the Constitutional Cour]. Mr. Tovmasyan what would be your approaches today given that you are the author of that provision? Would you interpret and compose it similarly if you were to write it now?  

The question is interesting indeed. I have not written that article as I was not in the republic in the period when those transitional provisions were under elaboration. But even if I had written it myself or were to do it now, I would use the same wording. What we need to understand is the rationale behind Article 213. It proposes the guarantee of the judiciary's independence as the permenance of judges builds the guarantee of a judge's independence. If such kind of proposals are voiced by the legal community to insist that all [the members of the Constitutional Court] will be appointed to serve for equal terms after the entry into force of the Constitution, then I would recommend those people to follow several acts by the European Court of Human Rights and the Luxembourg Court.  

Another question which I would like to address  without even being asked to is whether the Constitutional Court is facing any pressure at all. Pressure at the Constitutional Court would imply either an incomplete staff or inability to exercise the assigned authority for certain reasons. The Constitutional Court has passed 10-15 decisions over the period based on appeals by both the government and judges, individual citizens and the Human Rights Defender. There isn't any constitutional crisis; we are carrying out effective work,  which you are practically eyewitnessing.