Establishment of a non-renewable term for judges of the Constitutional Court of Armenia. The ECtHR refuses to issue interim measures.

JUDGMENT REGARDING INTERIM MEASURES

Gyulumyan and others v. Armenia 08.07.2020 (no.  25240/20)

SUMMARY 

Non-renewable term in the constitutional court and the need to take interim measures due to impending irreparable damage to judges. In 2015, the Constitution of Armenia was revised, introducing a 12-year non-renewable term for the judges of the Constitutional Court and establishing a six-year non-renewable term for the President. However, under a transitional arrangement, judges appointed before the entry into force of these amendments would continue to serve under the old provisions, according to which they would remain judges of the Constitutional Court until their retirement. Similarly, the President of the Constitutional Court could remain in office until retirement.

Recently, it was decided to revise the Constitution in such a way that all judges of the Constitutional Court would have an indefinite 12-year term, regardless of the date of their appointment. The President’s six-year non-renewable term also had to be implemented. Following the failure of a scheduled referendum due to the health crisis, these amendments were approved by Parliament and entered into force in June 2020, ending the term of the first three applicants in the case, the judges of the Constitutional Court and the term of the fourth of the President of the Constitutional Court.

The four applicants specifically asked the European Court of Justice to recommend to the Armenian Government the postponement of the constitutional amendments and to maintain their positions.

The Court decided to reject the claim, as it was outside the scope of Article 39 (interim measures) of the Rules of Court, as there was no risk of serious and irreparable damage to the basic right under the ECHR.

PROVISION

Rule  39 of the Rules of the Court

PRINCIPAL FACTS

The applicants are Alvina Gyulumyan, Hrant Nazaryan, Feliks Tokhyan and Hrayr Tovmasyan, who
were born in 1956, 1959, 1956 and 1970 and live in Yerevan. All the applicants were judges of the CC
at the time of the constitutional reform. The first applicant is also a former judge of the European
Court of Human Rights.

On 26 June 2020 the applicants made a request to the Court under Rule 39 of its Rules of Court for
an interim measure to indicate to the Armenian Government to: freeze the enforcement of the
constitutional amendments adopted by the National Assembly and, in particular, preserve the
offices of the applicants; abstain from appointment of new judges at the Constitutional Court;
abstain from institution of any proceedings against the judges and or/suspend the ongoing
proceedings; and “ensure the physical safety, mental and moral integrity of judges by abstaining
from manipulation of public perceptions through administrative resources”.

In the context of their request, the applicants complain that the adoption of the constitutional
amendment affecting their term of office was carried out in violation of the national law and was
arbitrary. They also allege that the constitutional amendments were the result of a long process of
harassment of judges of the CC, which started after the change of Government in 2018 and
intensified after the CC accepted an application lodged by the former President of Armenia, Robert
Kocharyan, concerning the constitutionality of criminal proceedings against him. They rely on
Articles 6 (right to a fair trial), 8 (right to respect for private and family life), 14 (prohibition of
discrimination) and 18 (limitation on use of restrictions on rights) of the European Convention on
Human Rights, and Article 1 of Protocol No. 1 (protection of property) and Article 1 of Protocol No.
12 (general prohibition of discrimination) to the Convention.

THE DECISION OF THE COURT…

The European Court decided to reject the request as out of scope. According to the Court’s wellestablished practice, requests fall outside the scope  of application of Rule 39 of the Rules of Court when they do not involve a risk of serious and irreparable harm of a core right under the
Convention.

Although the applicants’ request for an interim measure has been found to be out of scope, it is still
open to them to lodge an application and to pursue their complaints before the Court. When
required, the Court may decide to give priority to certain applications.

The refusal of the interim measure was decided by a Chamber of the Court which was constituted by
drawing of lots of judges who joined the Court after 31 October 2014, that is the date when former
Judge Gyulumyan’s mandate ended. The national judge withdrew from the case under Rule 28 of the
Rules of Court.

 


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