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Armenia’s Ministry of Justice claims to subject Suren Antonyan, a judge of the Court of Cassation, to disciplinary liability based on the ECHR judgment in the case Amirkhanyan v. Armenia. This is already the third proceedings examined in the Supreme Judicial Council initiated on the basis of the ECHR judgment. In all three cases, the representatives of the judges raise institutional issues. Pastinfo spoke on the institution of subjecting a judge to disciplinary liability based on the ECHR judgment with international law specialist Ara Ghazaryan.

Pastinfo: Mr. Ghazaryan, disciplinary proceedings have been initiated against the judge of the Court of Cassation, Suren Antonyan, based on the judgment of the ECHR. What is your general attitude on the institution of imposing disciplinary liability on a judge based on the ECHR judgment?

Ara Ghazaryan: Judges can only be subjected to disciplinary liability for violation of ethical principles or rules of conduct, and if a judge is held liable for a decision, it affects the independence of the judiciary. It is a principle. The Venice Commission made a small exception, saying that if the violation has been manifested in apparent arbitrariness, which may already include conduct, then disciplinary action may also be taken, however such formulation brings the issue closer to the criminal law, that is, when the court makes an illegal decision intentionally with interest. This provision shall not be abused as well. I remember a case where a judge was dismissed from office for violating ethical principles, but most of our disciplinary proceedings are primarily for decisions.

When I go to the court for my cases, I feel the inhibition of judges in general, because a judge shall be free in his decisions, even if it is strange for one party, after all, there is an appeal system, years later, retroactively to subject a judge for disciplinary liability for ECHR judgment ... Well, in such a case, do not subject only that judge, subject as well the judge of the Court of First Instance, the judge of the Court of Appeal, the entire composition of the Court of Cassation, it will already be 9-10 judges, is this a normal approach? If the case has reached the Court of Cassation, why are you holding liable only the judge of the Court of First Instance? In the given case, maybe one judge of the Court of Cassation is involved, but did he make the decision solely? There are questions that arise.

Disciplinary liability can only be imposed for ethics, as in the case of public servants and prosecutors, and if it is related to a decision held by a judge, then it is a subject of criminal prosecution, that is, he held a decision for interest, which is illegal and a criminal liability for it is envisaged. Thus, an additional institution for disciplinary liability, which the Ministry of Justice mainly uses, then there is a high probability that this is harassment of judges by the executive authorities, which is unacceptable.

Pastinfo: The case on subjecting Suren Antonyan to disciplinary liability examined at the Supreme Judicial Council, is the third disciplinary proceedings initiated on the basis of ECHR judgment.

Ara Ghazaryan: I know. More judges have been subjected to disciplinary liability based on the cases I won, I have a question, what were you doing all these years that you were not subjecting to disciplinary liability, or did it have to be a ECHR judgment for them to understand that the principle of res judicata has been violated. Ex post facto law in general is always problematic.

Pastinfo: Mr. Ghazaryan, do you see a problem with constitutionality? In all three cases, the judges raise the issue of conflict of these articles of the Judicial Code with the RA Constitution, but the SJC bypasses the discussion of that issue. In particular, the issue of ex post facto law is raised, which you also noted.

Ara Ghazaryan: Well, they say that we do not give retroactive effect to the law, we initiate the proceedings after the adoption of the law, in that sense, no retroactive effect is given, but the whole problem is that the newly initiated proceedings refers to the past, moreover it is a court case which has already received a legal evaluation in the RA judicial system. Finally, we should not forget that the ECHR is not a fourth instance court. It is deemed to be a complementary system, not a superior one. Yes, ECHR judgments are binding and should be implemented, but for example by reopening the case, and not looking back on the work done by the judge, because the judge's decision, no matter how strange it is, does not mean that it is ethical. Let us not forget that the ECHR is not an appellate body, based on the decision of which RA judicial acts shall be overturned. Thus, in all cases, yes, it's problematic, give a retroactive effect with a negative result, to the extent that it might even affect the dismissal of a judge, is problematic.

Pastinfo: Suren Antonyan's lawyer asserts that the negative content of the ECHR judgment is due to the unsuccessful actions of the representative of the RA government, because the latter did not even inform the European Court that the article forming the basis of the violation of Article 6 of the Convention has already been rendered unconstitutional and invalid, therefore the judge could not bear its negative consequences. Thus, it turns out that the government does not present the facts, but the judge is held liable. Should the judge be held liable in such a case?

Ara Ghazaryan: I don't know about the facts of the given case, it's hard to imagine what exactly was considered an error by Suren Antonyan, but yes, it often happens that the party does not present an argument in the ECHR and the ECHR holds a decision without it, to answer the question more concretely, one should get familiar with the case materials.

There have been cases regarding the violation of the principle of res judicata in the ECHR, Karen Poghosyan’s cases, such a principle, when the Court of Cassation held two contradictory decisions within three months. There were similar judgments against Armenia, but I don't remember that disciplinary proceedings have been initiated, and if the law goes back for 15 years, yes, they are also within 15 years. Check and see if there was any disciplinary action.

Pastinfo: Hence, do you think that the proceedings against Mr. Antonyan were targeted?

Ara Ghazaryan: The Ministry exercises discretion. Therefore, the application of the newly adopted law retroactively, that is, applying it to the past, is problematic.

Pastinfo: Mr. Ghazaryan, considering the raised issues, will subjecting judges to disciplinary liability create problems for the Republic of Armenia in international courts?

Ara Ghazaryan: So far, in the last judgment held in the case of Samvel Mnatsakanyan, it was clearly established that the judge shall have the right to appeal that decision to the court. If, as of today, we have a decision that cannot be appealed to the court or by the new procedure created –to the SJC, it is definitely a violation of the European principle. It is not excluded that even if the SJC creates a second chamber and there is a possibility of appeal within it, the ECHR may record a violation with regard to the proceedings implemented within the SJC. This is another topic of conversation related to the recent decision of the Venice Commission, the issue has not been fully resolved yet, because the possibility of appealing the decision of the SJC remains closed, and now they are creating an appellate chamber within the SJC, as in the ECHR. In that sense, there is the decision of the Venice Commission, which brings it as close as possible to the standards, but it does not definitively express the standards of the Venice Commission, that is, the judge shall be able to appeal the SJC decision to the court, the judges are aimed at it.

Interview by Pastinfo reporter Izabel Sahakyan