EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
Draft second INTERIM
Opinion
on CONSTITUTIONAL
REFORMS
in the republic of armenia
On the basis of comments by
Mr Aivars ENDZIŅŠ (Member, Latvia)
Mr Kaarlo TUORI (Member, Finland)
I.
Introduction
1. Upon the request of the
Armenian authorities, in October 2004 the Venice Commission prepared an opinion
(Interim Opinion on constitutional reforms in the Republic of Armenia,
CDL-AD(2004)044) on three draft proposals of amendments to the
Constitution of Armenia (CDL(2004)100, CDL(2004)101, and CDL(2004)107).
2. On 10 May 2005, the National
Assembly of Armeniaadopted in the first reading the first draft proposal of amendments to the
Constitution of Armenia,as revised (CDL(2005)042). By a letter of 17 May, Mr T. Torossian, vice-speaker
of the Armenian National Assembly,
requested the Venice Commission to carry out an expert
assessment of this text.
3.
Messrs Kaarlo Tuori and Aivars
Endzins, members of the Working Group on constitutional reforms in
Armenia, carried out such assessment.
4. The
present opinion, which was drawn up on the basis of their comments, was adopted
by the Venice Commission at its Plenary Session (Venice, 2005).
II.
Analysis of
the constitutional amendments adopted in the first reading
5.
In its interim opinion on constitutional reforms in Armenia, adopted in December
2004 (hereinafter “the first interim opinion”), the Venice Commission called
for “more significant amendments”, in particular with respect to the key issues
of the balance of powers between the state organs, the independence of the
judiciary and local self-government. It considered that the broad powers of the
President, not balanced by the necessary strengthening of the role of the
National Assembly, and combined with a general clause on presidential immunity
were dangerous for the democratic life
of the state, and were not in conformity with the Council of Europe standards.
6.
In the same spirit, at their 912th meeting in January 2005,
the Ministers’ Deputies of the Council of Europe “…requested the authorities
to speed up democratic reform by strengthening the separation of powers and to
continue to make progress towards compliance with the commitments which have
not yet been fulfilled…”, and “..stressed, in particular, the importance of
introducing constitutional reform within the time-limits agreed with the VeniceCommission…”.
7. The Commission notes and regrets that the text
which the Armenian National Assembly has chosen, amongst three draft texts of
constitutional amendments submitted to it, as the basis for the constitutional
amendments contains only few substantial improvements and, in all, does
not take into account the comments made by the Commission in its first interim
opinion (seeCDL-AD(2004)044, paras. 10 to 71).
- Amendments
with respect to protection of human
rights and freedoms
8.
The constitutional amendments adopted on 10 May 2005 (hereinafter: “new draft Constitution”)
brought about a number of positive changes in the Chapter on protection of
human rights and freedoms.
9.
The revised Article 15 explicitly abolishes the death penalty in Armenia.The new Article 16. § 1, 1 to 6, now provides an exhaustive list of situations
where a person can be deprived of his or her freedom, thus conforming to
Article 5 ECHR. The right to an effective remedy for alleged violations of guaranteedrights and freedoms is now clearly established (revised Article 18.1), and the revised
Article 29 has removed the distinction between different categories of
assemblies, which is to be welcomed.
10. New paragraphs 5 and 6 of Article 27 are also useful
and welcomed, as they may contribute to guaranteeing
pluralism of the media and independence and transparency of the regulatory
authorities.
11.
Nevertheless, the second
part of Article 27, paragraph 1 providing that “No one shall be forced
to recede or change his/her opinion” has no place in the constitutional text
and should be removed. Furthermore, Article 27 § 3 still gives cause for
concern, in that it still contains the previously criticized provision whereby “the
activities and liabilities for mass media shall be defined by law”, thus leaving
open the possibility of not clearly defined restrictions on the freedom of the
media.
12.
The Commission expresses concern over the revised Article 22 § 7 of the
new draft constitution, allowing for a person to be sentenced twice for one and
the same act “when thus prescribed by the law”, which departs from the European
standards and is contrary to Article 4 of the Protocol 7 to the ECHR.
13.
In addition, the Commission considers that, in order to ensure an
effective protection of guaranteed humanrights and freedoms, this constitutional Chapter should also include an
explicit definition of the Human Rights Defender’s powers.
- Amendments
with respect to relations between President, National Assembly and
Government
14.
The Commission regrets that the main points of criticism raised in its first
interim opinion, which related to the power of the President to nominate and
dismiss the Prime Minister and, on the latter’s recommendation, the members of
the Government; the right of the President to convene and chair a sitting of
the Government; a general clause on presidential immunity as well as the power
of the President to dissolve the National Assembly (which was strengthened even
further)
have not been taken into account.
15. It is true that some improvements
have been made, and that provision has been made, for example, for a duty of the
President to “consult the factions of the National Assembly” before appointment
and dismissal of the Prime Minister and the members of the Government (revised
Article 55.4), for a more significant role of the National Assembly in the
procedure for declaring martial law and the state of emergency (revised Article
55, paras.13 – 14), and for the right of Deputies and groups of Deputies to
address written and oral questions to the Government (Article 80). The presidential
right of legislative initiative (revised Article 75) and the right of the Prime
Minister to put forward a motion on confidence with respect to the adoption of
a draft law proposed by a Deputy (revised Article 75 § 4) have been removed.
16.
Nevertheless, having in mind the other powers of the President which
were analysed in detail in the Commission’s first interim opinion, the new
draft Constitution does not provide guaranteeseither for an effective independence of the Government vis-à-vis the President,
or for a strong National Assembly.
17.
With respect to Article 85 §2 of the new draft Constitution and the
Government’s power to “implement” domestic and foreign policy, the Commission considers
that it is yet another sign of the dominant role of the President in respect of
the other State organs.
18.
Overall, this section of the new draft constitution still contains
provisions that conflict with European standards, and fails to provide guaranteesfor the indispensable balance in the relations between the main constitutional
organs in Armenia.
- Amendments
with respect to judiciary
19.
The changes in the constitutional provisions on judicial system brought
by the new draft constitution are also rather limited. It is still the
President who appoints and dismisses the Prosecutor General and, upon the latter’s
recommendation, his or her deputies and appoints the Chairman of the Council of
Justice, the chairmen of courts and the judges. The legal effects of the
nomination of candidates for judges made by the Council of Justice, and of the
latter’s “recommendation” for their dismissal, appear to be merely advisory.
20.
The removal of the right of the President to chair the Council of
Justice, and the right of the National Assembly to appoint two non-judge
members of the Council of Justice (revised Article 94.1), the role of the
Council of Justice in the procedure of dismissal of judges (revised Article 95
§ 4) as well as the introduction of the right of the individualcomplaint before the Constitutional Court (new Article 101§ 1, 6) are, instead,
useful and welcomed.
21.
The Commission thus reiterates the comments and recommendations made in
its first interim opinion with respect to the necessary independence of the
Prosecutor and the judiciary from the executive.
- Amendments
with respect to local self-government
22.
Although significant, the changes brought about by the new draft
constitution relating to provisions on local self-government do not touch upon
the main problem raised in this respect by the Commission in its first interim opinion.
In contradiction with Article 107 of the same draft constitution, which
provides for a direct election of the Heads of Community, Article 88.1 has maintained
the previously criticised system of appointment and removal of the Yerevan
Mayor by the President.
23.
The power of the Yerevan Council to remove the Mayor in the cases
prescribed by law is a step in the right direction, but is till not sufficient
to fully comply with the European Charter of Local Self-Government, which
implies directly or indirectly elected Mayors (heads of local executives).
24.
On the other hand, paragraph 3 of the revised Article 88.1 appears to have been
substantially modified compared to the previous version of these draft
amendments that were submitted to and evaluated by the Venice Commission in its first interim opinion. In fact, the
current text of Article 88.1 no longer presents the Yerevan Mayor as an
official in charge of territorial (State) administration, alongside regional
governors. Combined with Article 108, where the Yerevan Mayor is defined as a
“head of community”, these provisions allow for clear separation the State and
local government administrations in Yerevan, which is to be welcomed.
25. Finally, the balancing of the power
of the Government to discharge the Head of community (the revised Article 109
of the new draft constitution) with the need for a previous “court judgment” on
the issue is to be welcomed; however, this provision should explicitly state
that it is a Constitutional court judgment.
III.
CONCLUSION
26.
The Venice Commission and the Council of Europe have long worked
together with the Armenian authorities on constitutional reform. This co-operation
started in 2000, when the Commission got involved in the process of drafting
constitutional amendments that resulted in the proposed draft constitution in
July 2001 and the related report (CDL-INF (2004) 17). Regrettably, before being
submitted to the popular referendum in May 2003, the 2001 draft constitution
was again revised by the Armenian authorities to include some of the previously
criticised provisions.
27.
Following the failure of the May 2003 referendum, in early 2004, the
Commission, in co-operation with the National Assembly of Armenia, organised a
conference on constitutional reforms in Yerevanaiming at resuming the process of reforms involving all political forces and
civil society, and arriving at true improvement of the current
semi-presidential regime.
28.
In spite of all the above-mentioned, the text which was approved in the
first reading does not, in every respect, conform to European standards and
does not reflect the suggestions made by the Venice Commission and the Council
of Europe.
29.
In this respect, the Commission wishes to express its deep disappointment
with the lack of progress in the co-operation with the Armenian authorities. The
Commission also regrets the difficult political atmosphere in which the
constitutional amendments were adopted in the first reading.
30.
The Commission cannot but stress once again that in order to achieve a
truly democratic constitutional text, the constitutional amendments should first
of all retain the comments made by the Commission and the Council of Europe; in
addition, constitutional changes should only be made after open and free public
discussions and should be based on a large consensus among the political forces
and within the civil society.
31.
The Commission considers that the text of the constitutional amendments
should be substantially revised before the second reading, and should be made
to reflect fully the previous opinions given by the Commission on this matter.
