ABOUT THE OSCE ANNUAL CONFERENCE ON HUMAN RIGHTS IN WARSAW27.09.2019
Within the framework of the working discussion on the Rule of Law and the Judiciary․ Siranush Sahakyan, the co-founder of the “Path of Law” NGO, spoke about the imperative of maintaining the principle of independence of the judiciary in the fight against corruption.
In particular, she referred to the issue of eliminating independence alongside granting new authorization against the judges to the Commission for Prevention of Corruption.
Below, we are presenting Siranush Sahakyan’s full speech:
“I would like to address the importance of respect towards the independence of the judiciary in the context of the anti-corruption policy and efforts of the executive. We believe that the fight against corruption and the independence of the judiciary do not exclude each other.
Nevertheless, there is a tendency for the executive to subject the judiciary through the abuse of power of anti-corruption institutions and procedures. Although the new anti-corruption regulations are presented to the Armenian public as being democratic and for the sake of the public interest, they are covert attacks against the”disobedient” judges.
About a month ago, the Ministry of Justice published the Draft Law on Amendments and Additions to the RA Law on Prevention of Corruption (hereinafter: Draft). According to the draft, the Commission for Prevention of Corruption has two additional powers. These are:
1․ Power to submit confidential reports on possible corruption of judges without any clarification of the Commission’s powers, as well as procedures and safeguards against abuse.
2․ Power to institute disciplinary proceedings in case of violation in declaration of the property and income.
By expanding the powers of the Commission for Prevention of Corruption, this draft significantly weakens the level of judicial independence. Thus:
1․ Although the RA Law on the Commision for Prevention of Corruption to avoid political influence (current) establishes a public and competitive nomination procedure for the candidates, the Government ‘is maintaining’ these advanced provisions for further nominations and appointments, now relying on ‘direct and supervised’ appointments. The draft proposes that the first staff of the Commission should consist of candidates nominated by the Cabinet, factions and the Supreme Judicial Council for a term of 6, 4 and 3 years respectively. At the same time, the candidates are presented to the National Assembly, which shall elect the members of the Committee by a majority of votes. In this political structure of the National Assembly, the voice of the opposition is not decisive.
On the other hand, the ruling political faction does not depend on the opposition to get the necessary majority of votes. It should also be noted that after the mass resignations in the Supreme Judicial Council and the new appointments by parliament, the SJC is under the influence of the ruling political force.
2․ The draft mitigates the requirements for the members of the Commision for the Prevention of Corruption Prevention; particularly the requirements for work experience. The aforementioned provision reinforces the current situation, which is appointing
persons with no professional background and experience in important public offices, weakening the professionalism of the whole Commission, making it more vulnerable to political pressure.
3․ The authority of the Commission for Prevention of Corruption to institute disciplinary proceedings against judges is devoid of any legitimacy and logic. The Commission institutes disciplinary and administrative proceedings against judges on the basis of allegedly the same violation. This is applicable only to judges and not to other public officials and servants who have equal responsibilities with judges over declarations.
The obligation to declare the property and income declaration is universal and derives from the general responsibilities of public officials / servants (and not the professional activities of judges) and therefore cannot be related to the disciplinary proceedings of judges.
Such a regulation has discrimination against judges (considering that if the minister fails to comply with his / her declaration, only an administrative penalty will be imposed while in the case of a judge it will also lead to disciplinary proceedings). It is noteworthy that any breach of declarations is considered a serious disciplinary breach (which is the sole basis for termination of a judge’s powers), whereas, according to the Code of Administrative Offenses, late or improper filing, as well as filing of declarations containing false or inaccurate information only leads to premeditation or minimum penalties.
We call on all parties to condemn the abuse of anti-corruption institutions and the fight against corruption, in order to enslave judges, politicians.
We call on the OSCE Office for Democratic Institutions and Human Rights to closely monitor the developments and to consider the draft, taking into account Armenia’s commitments to the OSCE, in particular the OSCE-ODIHR Kyiv Recommendation on Judicial Independence”.