In the frame of the RA Judicial and Legal System Reforms, on 14 December 2021, the RA Ministry of Justice put for discussion draft laws on making amendments to the “RA Judicial Code” and the constitutional law on “The Constitutional Court”, whereby it is proposed to establish that a deliberate violation of a fundamental human right as recorded by the European Court of Human Rights is a non-compliance requirement for the activity of a judge. Moreover, it was envisaged to give a retroactive effect to the drafts.
On 21 March 2022, the Venice Commission published an advisory opinion and recorded a number of issues. Though the draft was amended after that, it should still be mentioned that not all observations of the Venice Commission were taken into account. In particular, the Venice Commission expressed a negative opinion about giving a retroactive effect to the Draft and noted that it could entail challenges for the Republic of Armenia in the European Court of Human Rights.
In terms of assuring protection of public interest, retroactive effect of a law aggravating a person’s legal status can also apply to proceedings of administrative and civil cases, whereas the RA Constitution envisages a general prohibition of retroactive effect; therefore, this approach shall be considered as contradictory to the Constitution unless constitutional changes are made.
Matters of giving a retroactive effect to a law should be considered in the frame of constitutional reforms by envisaging it as an exclusion which is based on the best practice, pursues a legal aim and stems from public interest.
It should be mentioned that the Venice Commission noted that the Drafts do not establish a threshold determining the level of a violation and a form of graduated sanctions. Nonetheless, the amended draft also does not establish criteria of certainty and predictability: the level of punishment is not established in line with the gravity of consequences of the violation. It is also envisaged to review ECHR judgements against the Republic of Armenia, however, no terms are set for the review and application to the Supreme Judicial Council.
Click here (in Armenian) to read HCA Vanadzor position regarding the aforementioned and other issues along with the relevant recommendations.
The position was shared with the RA Ministry of Justice.