The ECHR Grand Chamber has recently published an important decision regarding a few issues of subjecting the judges to disciplinary sanctioning.
Today, Hasmik Harutyunyan, Legal Expert of the Protection of Rights without Borders NGO is the interviewer of armdaily.am.
- Hasmik, please speak about the decision published by the ECHR Grand Chamber today.
- On November 6 of 2016, the Grand Chamber of the European Court of Human Rights made an important decision against Portugal regarding the issues of subjecting the judges to disciplinary sanctioning. By the decision, the Court recognized a violation under the Article 6.1 that is the right to fair trial. The violation is conditioned by the fact, that there had not been sufficient measures, as well as public hearings to make the decision a matter of review.
- Generally, what kind of decisions have been made by the ECHR regarding the disciplinary sanctioning of the judges?
- In this regard, we have an important case Saghatelyan v. Armenia. Within the mentioned case, the applicant had been removed from the position as a judge of Court of Gegharkunik region and then applied to the court reasoning that he had illegally been dismissed by his position. But his appeal was rejected. According to the decision made by ECHR, the right of the applicant to the fair trial was violated. By that decision, a reference to the issue of the Justice Council being an independent and impartial body was made. According to the Court, it was essential, that previously, when the applicant’s case had been examined by the Justice Council and the later had been chaired by the representative of the executive branch, the Justice Council by its composition could not be considered as an independent and impartial court, which could ensure satisfaction of the justice demand prescribed by Article 6 of the Convention. Therefore, the Applicant, by the recommendation of the Justice Council, should have additional supervision on the decision made by the President, which is in a line with the Article 6 requirements. It was adopted by the decision also, that the Applicant could not appeal the decision to dismiss him from his position adopted on the grounds of the recommendation by the Justice Council, which is unacceptable. The incident of the given case took place in 2004 and the decision was made in 2015. At this moment, there is one more case against Armenia at ECHR, Mnatsakanyan v. Armenia, by which the lack of possibility by the applicant to appeal the decision made in regard to the dismissal a judge from his/her position in judicial order is discussed. The Court once again raised a question in regard to the issue whether the lack of access by the applicant to apply to the court, as well as the lack of appealing the decision about the dismissal of a judge does not violate the right to fair trail prescribed by the Convention. In regard to this case, a decision has not yet been made.
- What influence did that decision have in our country?
- After the decision of Saghatelyan v. Armenia, a number of changes were made in the legislation, particularly in the Criminal Procedure Code. The problems recorded in the decision, should have also be put on the grounds of the amendments of the RA Criminal Code, since the problems regarding the Justice Council are still actual in regard to the Supreme Judicial Council as a new independent body, since the current legislative regulation does not allow to appeal the decision on subjecting the judge to disciplinary sanctioning in a judicial order. The only possible wat, which is prescribed by Judicial Code, is applying to Constitutional Court, which has been considered unacceptable by the Venice Commission.
- What will the decision made recently change in practice?
- Any decision made by the European Court of Human Rights and the position prescribed by the decision should be a ground for the respective changes and contribute to the effective protection of the rights prescribed by the Convention. In all cases, any decision is followed by the general and individual implementation of actions. The individual action supposes for example reopening of the case, recovery of work etc. The general measures are also of different nature and suppose legislative and practical changes. By any case, the later depends on the circumstances and recognized violation of a concrete case.
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