a) Armenia / b) Constitutional Court / c) Plenary / d) 07-11-2006 / e) DCC-664 / f) On the compliance of Article 35.1.3, second sentence, Article 35.1.4, and Article 36.1 of the Armenian Electoral Code with the Armenian Constitution / g) to be published in Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
General Principles - Separation of powers.
Institutions - Judicial bodies - Organisation - Members - Status - Incompatibilities.
Institutions - Elections and instruments of direct democracy - Competent body for the organisation and control of voting.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Independence.
Fundamental Rights - Civil and political rights - Procedural safeguards, rights of the defence and fair trial - Impartiality.
Keywords of the alphabetical index:
A judge's duties are not compatible with a job which has no bearing on the role of a judge. For example, a judge's right to administer justice is incompatible with the function of organising and holding elections. It is therefore not appropriate to include judges in electoral commissions as the Constitution suggests. This would conflict with the administration of justice and the independence of the judiciary. It could also result in conflicts of interest between judges, and make it difficult for judges and courts to remain impartial when resolving electoral disputes.
I. A group of deputies to the Armenian National Assembly sought a ruling from the Constitutional Court, as to the compliance with the Constitution of provisions in the second sentence of Article 35.1.3 and 35.1.4 and Article 36.1 of the Electoral Code.
The provisions stated that, after parliamentary elections, authority to appoint members of the Central Electoral Commission would be vested in the Council of the Chairmen of the Armenian Courts. The Council consists of judges from the courts of general jurisdiction, and one judge from the Court of Cassation appointed by the Court of Cassation. The applicants argued that the provisions were in conflict with Articles 5.1, 19.1 and 98.1 of the Constitution.
They emphasised that the doctrine of separation of powers means that competences belonging to one branch of power cannot be implemented by another. They went on to say that if a citizen challenges decisions by Central or Precinct Electoral Commissions, then the state body whose representatives issued the legislation in point will be reviewing the complaint. Nevertheless, a court can be unbiased and independent, if it is separate from the body that has adopted the decision and if it played no part in the decision-making. They also argued that when a judge carries out his or her official duties, this is a professional occupation, and incompatible with an occupation not related to such duties.
The respondent argued that the provisions of the Electoral Code are not in conflict with Article 5.1 of the Constitution. The electoral commissions, as independent bodies, are not included within any branch of state power and do not, in practice, exercise functions exclusively attributable either to the executive, legislative or judicial powers.
In the respondent's view, there is no inconsistency between the provisions of the Electoral Code and Article 19.1 of the Constitution. That would only be the case where a judge who is a member of the electoral commission presided over the resolution of the dispute. The point was also made that recent alterations to the Constitution have resulted in changes to the language of Article 98.1. On that basis, the articles in question now contradict Article 98.1 of the Constitution.
II. The Constitutional Court noted the stipulation within Article 32.1 of the Electoral Code, to the effect that "The electoral commissions ensure the realisation and protection of citizens' electoral rights. While exercising their functions electoral commissions are independent from the state and from the local government."
The function of the electoral commissions is to make sure that institutions of democracy are formed by means of the exercise and protection of citizens' electoral rights. A direct comparison cannot be drawn between this function and that of other state bodies. In this respect, the involvement of all government branches in the formation of the electoral commissions is justified, as there are robust safeguards in place, to guarantee the independence of the commissions. State bodies must not be allowed to develop powers which would jeopardise the effective and impartial exercise of their own powers or which could endanger the constitutional system of checks and balances.
The Constitutional Court also pointed out that although Article 33 of the Electoral Code prescribes that judges from courts of general jurisdiction work on a voluntary basis, the nature of their work means that they hold a state position in a state agency. Furthermore, according to Article 33.3, "The Chairman, Deputy Chairman and Secretary of the Central Electoral Commission work on a permanent basis and may not carry out other paid work, apart from scientific, tutorial and creative work." These requirements help to define the particular nature of membership of the Electoral Commission, and are significant in terms of guaranteeing the equal status of commission members.
The Court emphasised that Article 98.1 of the Constitution forbids judges and members of the Constitutional Court from being engaged in entrepreneur activities, holding public office in central government or local government, which is irrelevant to their duties, positions within commercial organizations or any other paid work. The only exceptions are scientific, tutorial and creative work.
The rationale behind the provisions is to make sure that those administering justice devote their whole attention to this task, and perform it impartially. Their aim is also to avoid conflicts of interest and any undue influence on judges. The fact that the legislation precludes judges and members of the Constitutional Court from holding public office in central or local government which is not relevant to their duties is significant. It implies that the Constitution has defined the framework of a judge's term of office so that he will keep to his official duties. Any amendments to legislation pertaining to the status and powers of a judge would have to be made with due regard to this limitation, which has been imposed by the Constitution.
The Court also observed that the Constitution allows the Constitutional Court to preside over disputes arising from the outcome of Presidential and Parliamentary elections. Courts of general jurisdiction may preside over disputes which have arisen during the preparation and organization of the elections, and infringements of provisions of the Electoral Code. During local government elections, the judicial protection of electoral rights lies with courts of general jurisdiction. In this case, a judge's right to administer justice is incompatible with the function of organizing and holding elections. This will particularly be the case when judges are elected as chairpersons, deputy chairpersons or secretaries of electoral commissions, something which is not ruled out by the Electoral Code.
The Court drew attention to a document entitled "Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report" adopted by the European Commission for Democracy through Law (Venice Commission) on 18-19 October 2002, which stresses the need for an independent and impartial electoral system. According to Paragraph 3.1.d of the second part of the document, the Central Electoral Commission should include at least one member from the judiciary. Paragraphs 68-85 of the mentioned document set out the way electoral commissions should be organised, so as to ensure their impartial and independent functioning. According to the commentary to paragraph 75 of the Code: as a rule, the composition of the electoral commission, together with other members, should include "a judge or a law officer: where a judicial body is responsible for administering the elections, its independence must be ensured through transparent proceedings. Judicial appointees should not come under the authority of those standing for office."
In view of the points raised above, the Constitutional Court held that the presence of "a judge or law officer" member is clearly to ensure the impartiality and independence of commissions. The provision pertains to independent, impartial lawyers and to judges. The legislation of several member states of the Council of Europe provides for the inclusion of judges in electoral commissions.
Nonetheless, due to several provisions of the Electoral Code, as well as the Law on the Judiciary, over half of the total number of judges from the courts of general jurisdiction may become members of the electoral commissions, whereas less than half may challenge the decisions adopted by their colleagues. This affects the entire system of justice. According to the Law on Judiciary, the Armenian legal system has 101 justices from courts of the first instance of general jurisdiction and 17 chairmen of those courts, 24 justices from the appeal courts and two chairmen, the chairman of the Court of Cassation, two chairmen of the chambers and 10 justices. There is also a specialist economic court, consisting of a chairman and 21 justices. Altogether, there are 179 persons (157 persons not including the justices of the economic court). 84 of them can simultaneously become members of the electoral commission.
Article 40.14 of the Electoral Code provides that "Judges appointed to electoral commissions under the procedure set out in the Electoral Code, cannot resolve disputes arising from the activities (or inactivity) of the respective electoral commissions". This does not change the situation substantially. In addition, Articles 35 and 36, read in conjunction with paragraphs 1 and 2 of part 3.1 of Article 38 of the Electoral Code, set out the procedure for filling vacancies in the central and regional electoral commissions from the judiciary. Situations could arise, as a result, where the number of judges who could hold office in the electoral commission could exceed the total amount of the judges from the courts of general jurisdiction.
Taking into account the limited number of judges in Armenia, the balance between judges who are and who are not included in the electoral commissions, the way electoral disputes are resolved and various time limitations, there is evidently a conflict between the interests of establishing independent electoral commissions and of administering efficient and impartial justice. It may, therefore, be impossible to guarantee the rights enshrined within Article 19 of the Constitution.
The Court emphasised that the role of impartial and independent electoral commissions is vital, but that in "transitional countries" impartial judicial power is also of pivotal importance. This is why Article 98 of the Constitution prevents judges from holding any office which is not relevant to his official duties. Including judges in electoral commissions, as prescribed by the Electoral Code, is at odds with the administration of justice, with the independence of the judiciary, increases the possibility of conflicts of interest, and undermines the impartiality of judges and courts when resolving electoral disputes.
The Constitutional Court held that:
1. Articles 35.1.3, 35.1.4 and 36.1 of the Electoral Code, which allow for judges to be appointed to serve as members of central or regional electoral commissions, are in conflict with Articles 19.1 and 98.1 of the Constitution and null and void.
2. Those parts of Articles 35.2, 22.214.171.124 and 126.96.36.199 of the Electoral Code which set out the procedure for filling vacancies on central and regional electoral commissions from the ranks of the judiciary are in conflict with Articles 19.1 and 98.1 of the Constitution. They are null and void.
3. Other legislation which ensured the implementation of the void provisions is repealed upon the entry into force of the Constitutional Court's decision.