Helsinki Citizens' Assembly-Vanadzor

Joint statement on the stage process of integrity testing of judges

August 20, 2020

Joint | Announcements

One of the essential expectations formed as a result of the 2018 revolution is the formation of a new state government system with new content and quality, which inevitably requires revision and rethinking of the standards presented to a public servant.

 

This is a current issue in the context of the formation and improvement of the judicial authority, since public trust in the aforementioned authority was very low in the pre-revolution period and remains very low now. The corruption of courts, serving the interests of the political elite and the aspiration not to damage criminal oligarchic groups are no longer acceptable in post-revolutionary Armenia. Now, it is on the agenda to enshrine the policy of refining and filtering the judicial system and securing legal and factual guarantees of its independence. 

 

Integrity testing of the judges plays the most important role in the process of solving the issues discovered in the judicial system. This function is performed by the Corruption Prevention Commission (hereinafter referred to as CPC) according to regulations of the RA Law “On the Corruption Prevention Commission”, RA Constitutional Law “Judicial Code” (hereinafter referred to as Judicial Code) and other legal acts. The envisaged frame of the integrity testing includes the examination and research of the corrupt lifestyle and behaviour of the candidates by using the legal toolkit given to the CPC.

 

In the process of choosing candidates for judges, it is extremely important to establish the right stage sequence of filtering, in compliance with professional and integrity requirements, of the nominees of judge candidates that are most in line with efficient use of the state resources, the title of a judge and administration of justice.  This issue is particularly obvious against the background of heated discussions among the public on the nomination of judge candidates for the RA Constitutional Court. 

 

It should be recorded that different countries have different stage sequences of testing the candidate nominees, which can be connected with the issues of the judicial systems of those countries, the society’s trust in the image of the judge, the state’s material resources and other conditions. 

 

In Armenia, the legal process of appointing judges is enshrined in Chapter 7 of the RA Constitution, the Judicial Code and RA Constitutional Law “On the Constitutional Court”. Except for the judges of the RA Constitutional Court and members of the Supreme Judicial Council (hereinafter referred to as SJC), the process of appointing other judges is implemented in the following stages according to Article 96 of the Judicial Code: 

 

—submission and verification of the application,

—written examination,

—conduction of an interview.

 

In the first stage, according to Article 98 of the Judicial Code, the person willing to be included in the list of the judge candidates submits to the SJC an application and enclosed documents, among which, also a consent, in a manner prescribed by the SJC, that the state bodies and officials can get his/her personal data, including medical secrets and other data, in the limits of checking his/her compliance with the requirements set for the nominees, as well as a questionnaire on integrity. According to Article 99 of the Judicial Code, the Judicial Department verifies the completeness and compliance of the application and the enclosed documents, except the integrity questionnaire, with the established requirements, including through written inquiries. 

 

In the second stage, it is envisaged to test the professional knowledge of nominees of judge candidates through the organization and conduction of a written examination by the Judicial Department and the SJC.

 

In the third stage, according to Article 107 part 1 clause 1.1 of the Judicial Code, the Judicial Department presents to the SJC the unified list of the candidates for judges who have passed the stage of the written examination, in order to prepare and conduct the interview. At the same time, the Judicial Department presents to the CPC the filled integrity questionnaire of the nominees included in the list of the candidates who have passed the stage of the written examination, in order to get a consultative conclusion within one month.  

 

As it can be seen from the legislative regulations, integrity testing of the nominees of judge candidates is implemented in the last stage of the selection process for the candidates who have successfully passed the written examination. Factually, in case of the General Jurisdiction and specialized courts, the state spends huge resources to check the candidates’ professional knowledge by a written examination, whereas, later it can turn out that the candidate has integrity issues.

 

Though the selection process is different, in case of the candidates for the RA Constitutional Court judges and the SJC members, their integrity testing is envisaged in later stages, too. In particular, According to Article 174 and Article 213 of the RA Constitution, and Article 81 of the Judicial Code, the selection of the RA Constitutional Court judges and 5 members of the SJC who are not judges is implemented by the National Assembly, and the candidates are nominated by the RA President, the Government, the National Assembly. These candidates do not pass the stage of the written examination and their integrity testing is done by the CPC after their official nomination before the selection process by the National Assembly. SJC members, who are judges, are selected by the General Meeting of Judges from the list of judges made by the Judicial Department, who represent first instance, appeal and cassation courts and meet the requirements set for the SJC members. Their integrity is tested by the CPC before the session of the General Meeting of Judges. In this case, too, it should be recorded that it is more purposeful for the Judicial Department to make the lists of judges who are candidates to become a member of the SJC after the integrity testing by the CPC, in case of which the candidates’ integrity will be checked in advance, then the matters raised by the CPC conclusion will be discussed, after which the general meeting of judges will start the selection process. The variant proposed now is especially important, because the integrity testing of  judges who are candidates to become a member of the SJC means testing the integrity of the acting judges. 

 

In addition to the above-mentioned conditions, it should be noted that during the process of integrity testing, the legislation does not give the CPC an opportunity to get clarifications from the candidates through face-to-face or written communication, as a result of which, the completeness and objectivity of the CPC conclusion is not secured comprehensively. We find that it is a very serious gap, especially in the case of judges, because the integrity factor and its perception are the main reasons for the low level of public trust in the judicial authority. 

 

In order to overcome the above-mentioned issues, we recommend:

 

📌To conduct the integrity testing of  nominees for judge candidates after the stage of checking the documents, as a factor of compliance with the established requirements. Article 98 of the Judicial Code mentions about the check of the documents enclosed to the application and  in parallel, it is necessary to send the integrity questionnaire envisaged under clause 13.1 to the CPC for a consultative conclusion. It is necessary to envisage the integrity testing process with specified guiding criteria in the first stage of the requirements set for the candidates, and in case the requirements are not met, to exclude the participation of the relevant candidate nominees in the further process.

📌In case of the RA Constitutional Court and the SJC, to envisage a mechanism, according to which, before the nomination, the nominating structures get a conclusion given by the CPC on the integrity of the candidates. It is preferable that all the processes of nominating be competitive in order to guarantee the discovery of a bigger number of competent candidates and the consideration of their candidacy, and in case the CPC gives a negative conclusion, to guarantee the list of replacing candidates. 

📌To make an addendum to clause 26.1 of the Law on the CPC, according to which, in the process of testing the integrity of candidates for the SJC, candidates for the Constitutional Court judges and nominees of judge candidates,  the CPC will have the right to get clarifications from them.

📌To make more transparent the process of the selection of  all the judge candidates of the RA judicial system and the SJC members by publishing the lists of the candidates via sources that ensure greater public involvement and by doing live broadcasts of the process of written examinations and interviews.

 

To ensure the viability of the process of integrity testing of judges and other public servants, it is necessary to correct the shortcomings and ommissions of the legal regulations of the sphere by introducing an effective legal toolkit and continuous development. In the future, based on the study and research on the aforementioned, recommendations will be presented on legislative amendments, as well as specification and introduction of the criteria.

 

It is also necessary to accelerate the process of recruitment in the CPC staff in order to ensure the proper implementation of the voluminous powers placed on it by the relevant structure.

 

Transparency International Anti-Corruption Center

Helsinki Citizens’ Assembly-Vanadzor

Journalists’ Club “Asparez”

Open Society Foundations-Armenia

Law Development and Protection Foundation

Protection of Rights without Borders NGO

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