EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
draft
FINAL opinion
on
the constitutional reform
in
the republic of armenia
On the basis
of comments by
Mr Vlad CONSTANTINESCO
(Expert, France)
Mr Aivars
ENDZINS (Member, Latvia)
Mr Kaarlo
TUORI (Member, Finland)
I.
Introduction
1. In June 2005, the Commission adopted its
second interim opinion on constitutional reforms in Armenia (CDL-AD(2005)016). It concluded that the
proposed constitutional amendments, as adopted in their first reading, required
important amendments in the areas of the separation of powers, the independence
of the judiciary and the manner of appointment of the Mayor of Yerevan.
2. As previously
agreed, on 17 June 2005 the Armenian authorities submitted revised
constitutional amendments to the
Commission’s working group.
3. On
23-24 June 2005, a meeting was held in Strasbourg, at which representatives of
the Armenian authorities and of the civil society and the Commission working
group, composed of Messers Endzins, Tuori and Vlad Constantinesco, discussed
these revised amendments with a view to improving them. As a result of this
meeting, certain principles which were to guide the further constitutional
works were agreed upon (CDL(2005)052).
4. On 7 July
2005, theArmenian authorities submitted a further revised version of the constitutional
amendments (CDL(2005)058).
5. The
Commission’s working group prepared an assessment of this version of the
constitutional amendments and sent it to the Armenian authorities on 21
July 2005.
6. On 1
September 2005,these amendments passed their second reading in the National Assembly. They
were submitted to the Commission in their final version on 9
September 2005.
7. The
present opinion relating to the constitutional amendments as adopted in second
reading was prepared by the working group and submitted to the Armenian
authorities on 19 September 2005. It was subsequently endorsed by the
Commission at its … plenary Session (…).
II.
Analysis of the revised draft constitutional
amendments adopted in the first reading
A.
Preliminary remarks
8.
The present comments only relate to the aspects which were specifically
discussed at the meeting of 23-24 June 2005, and which were summarised in document
CDL(2005)052. In elaborating them, the
working group has aimed at achieving solutions allowing for the workability of
the democratic institutions of Armenia.
9.
Other aspects of the Constitution, which have not been addressed by the
Commission in this opinion but in previous ones,
may well deserve discussion among the Armenian authorities, the opposition
forces and the civil society.
B.
Human Rights
Ombudsperson
10.
The constitutional foundation of the institution of the Ombudsperson
represents an important step towards ensuring an effective protection of human
rights and freedoms in Armenia.
11.
It is now expressly foreseen in Article 83.1 § 1 that the ombudsperson shall
be elected by a majority of 3/5 of the deputies, as currently provided in the
Law of the Republic of Armenia on the Human Rights Defender. The principle of irrevocability
of the Ombudsperson has also been explicitly stated in paragraph 3 of the same Article.
Freedom, independence and plurality of the media
12.
Article 83.2 of the proposed Constitution now sets out the manner of appointment
of the members of National Commission on Radio and TV.
13.
The members of the National Commission on Radio and TV are no more appointed by the President under the general clause of
Article 55.5, but are appointed, for 6 years, as follows:
- ½ by the National
Assembly, and
- ½ by the
President.
14.
The Commission welcomes this solution, which constitutes an undoubted
step forward towards the independence of the NCRT. The Commission recalls the need, for both the
National Assembly and the President, to follow a transparent and merit-based
procedure of selection of candidates. It
points out in particular that members if the NCRT should not be active members
of political parties.
15.
The Commission also wishes to refer to the need for the members of
the boards of management of public service broadcasting organisations to be
appointed so as to avoid the risk of “any political or other interference”. In
this respect, the appointment by the President of the Republic of all the
members of the Council of the
Public TV and Radio has been seen as problematic, and the need for
the appointment process, if this power of the President is to be retained, to be
open and transparent and not open to political abuse, has been underlined. The Commission notes in this respect that the
CPTR is, according to the information submitted by the Armenian authorities, a
joint stock company. It follows that the members of its managing board are not
“state officers” and need not be appointed by the President of the Republic
under Article 55 § 5 of the Constitution. Other options could indeed be
preferable, such as, for instance, the appointment by civil society and
professional bodies.
16.
The Commission underlines the importance of regulating this matter in
accordance with the applicable European standards. It recommends therefore that
the relevant legislation be brought in
compliance thereof with the assistance of the Council of Europe.
C.
Separation of powers
Presidential immunity
17.
With respect to the presidential immunity, the Commission notes with
approval that the revised Article 56.1 § 2 fully reflects both the principle of
the President’s non-liability in respect of the acts arising from his or her
presidential duties during and after the mandate, and the immunity from
prosecution, during the mandate, for acts not arising from his or her
presidential duties.
Extraordinary sittings and sessions of the NA
18.
The Commission notes with approval that the revised Article 70 on
extraordinary sessions and sittings now clearly stipulates that it is the
Chairman of the National Assembly who will convene a parliamentary session or
sitting upon the initiative of the President of the Republic, or of at least 1/3
of the deputies or of the Government.
Formation of government.
19.
The Commission welcomes the revised provisions on the formation of
government, which now provide guarantees for the indispensable balance in the
relations between the main constitutional organs in Armenia.
20.
Pursuant to the new Article 55 § 4, the President of the Republic will appoint
as Prime Minister the person who enjoys the confidence of the majority of the
deputies. The meaning of the following expression in the second part of the
first sentence “if it is not possible, the person who enjoys the
confidence of relative majority” is unclear and the exact procedure to
be followed should be spelled out.
21.
The Prime Ministers can now only be dismissed by the National Assembly
through a vote of non-confidence. On the other hand, as a compromise solution,
the President has the right to present to the National Assembly a motion of
non-confidence in the Government (new Article 84 §2).
22.
At the meeting of 23-24 June, the possibility of introducing a
constructive vote of non-confidence was discussed. The members of the Commission’s
working group considered that such mechanism generally contributes to the
stability of the government and that, as such, it might be useful.
23.
With regard to the President’s power to dissolve the National Assembly
for “technical” reasons, the revised Article 74.1 § 2 now rightly provides for
the involvement of the Chairman of the National Assembly or the Prime Minister.
24.
As regards the composition of the government, the Commission notes with
approval that it is now to be fixed by law.
Foreign policy
25.
The new Article 85 now correctly stipulates that the Government shall
“determine and implement” the foreign policy of Armenia jointly with the President of the Republic. In
fact, Article 55 on the competences of the President of the Republic should
more accurately provide that the President “determines and implements the
foreign policy jointly with the Government” rather than “executes the general
guidance” of it.
Sittings of the government
26.
The Commission notes with satisfaction that the new Article 86 § 2
expressly states that the President may convene and chair sittings of the
government in connection with foreign policy, defence and state security
issues only.
D.
Independence of
the Judiciary
Prosecutor General
27.
In accordance with the revised Article 55 § 9, the appointment and
dismissal of the deputies of the Prosecutor General will be done upon the
recommendation by the Prosecutor General.
Appointment and dismissal of judges/ Composition of the Justice Council
28. Recommendation No. R (94)12 of the Committee
of Ministers of the Council of Europe on the independence, efficiency and the
role of judges provides as follows:
“The
authority taking the decision on selection and career of judges should be
independent of the government and administration. In order to safeguard its
independence, rules should ensure that, for instance, its members are selected
by the judiciary and that the authority decides itself on its procedural rules.
However, where the constitutional or legal provisions and traditions allows
judges to be appointed by the government, there should be guarantees to ensure
that the procedures to appoint judges are transparent and independent in
practice and that the decisions will not be influenced by any reasons other
than those related to the objective criteria mentioned above ”.
29. The European Charter on the Statute for
judges provides as follows:
“In respect
of every decision affecting the selection, recruitment, appointment, career
progress or termination of office of a judge, the statute envisages the
intervention of an authority independent of the executive and legislative
powers within which at least one half of those who sit are judges elected by
their peers following methods guaranteeing the widest representation of the
judiciary”.
30. According to the Explanatory Memorandum of
the European Charter, the term “intervention” of an independent authority means
an opinion, recommendation or proposal as well as an actual decision.
31. Article 94.1 of the proposed Constitution
sets out the composition of the Justice Council as follows: nine judges
(it should not say “up to” nine judges, but according to the Armenian
authorities this is a translation inaccuracy) elected by secret ballot
for a period of five years by the General Assembly of Judges of
the Republic of Armenia, two legal scholars appointed by the President
of the Republic and two legal scholars appointed by the National
Assembly.
32.
Under new Article 94.1 § 3, the
sittings of the Judicial Council will be chaired by the Chairman of the Cassation Court without a right to vote.
33. In the Commission’s view, the composition of
the Judicial Council conforms to European standards as highlighted above.
34. At the meeting of 23-24 June, it had been
agreed that the President of the Republic can only appoint or dismiss
someone upon a recommendation or conclusion of the Judicial Council to this
effect. This important principle needs to be more clearly reflected in
Article 55 § 11.
35. The expression “upon the recommendation or
conclusion of the Council of Justice” must unequivocally refer to any
decision concerning the appointment, career progress or termination of
office of a judge. The expression “may
terminate their powers” should be replaced by “shall terminate their powers”. It
should be clearly stipulated, in an additional point of paragraph 11, that the
President shall, upon the recommendation or conclusion of the Council of
Justice, “promote judges who are candidates for professional advancement”.
36.
The Commission underlines the importance of regulating this matter in
accordance with the applicable European standards. It recommends therefore that,
in addition to rephrasing paragraph 11 of Article 55, the Armenian authorities
prepare or revise the relevant law with the assistance of the Council of
Europe.
E.
Local self-government
37.
The changes made in Chapter 7 on Local self-government meet the recommendations
made by the Commission in its previous opinions. Thus, the principle that Yerevan is a community, hence a local
self-government unit, is expressly stated. The new Article 108 affirms the
principle that the Yerevan Mayor must be elected, though the law may provide
for an indirect election, which is legitimate under the European Charter
on Local Self-Government. Detailed provisions on the formation of the local
self-government bodies and their functioning in the City of Yerevan will be specified by law. Should an indirect
election of the Mayor by the Council of Aldermen be already envisaged as
the solution, it would be appropriate to state it in Article 108.
F.
Amendments to the Constitution
38.
Pursuant to the revised Article 113, in order for the referendum on the constitutional
reform to be considered valid, ¼ (instead of previously 1/3) of registered
voters must effectively express their vote. In the Commission’s view, this
simplification is to be welcomed.
G.
Transitional provisions
39.
The Commission considers that the new constitutional provisions should
enter into force as soon as practicable. The provisions concerning the mandates
of the elected bodies (Article 63 § 2 and Article 107 § 1) obviously need to
await the expiry of the mandate of the current ones.
III.
Conclusions
40.
The revised draft constitutional amendments represent an undoubted improvement
as compared to earlier drafts commented upon by the Venice Commission. In the
opinion of the Commission, a successful constitutional referendum on the basis
of this text would constitute a good basis for ensuring the compliance of the Armenian
Constitution with the European standards in the fields of respect for human
rights, democracy and the rule of law, and would pave the way to further
European integration. The Commission acknowledges the efforts and the good will
of the Armenian authorities.
41.
It is certainly important that the discussions of the final text be
pursued in an open and transparent manner with the opposition forces and the
civil society in Armenia.The broadest political consensus must be found.
42.
The next main challenge will be to organise an appropriate referendum
campaign leading to the adoption of the new Constitution for Armenia.The Commission encourages the Armenian authorities to do their utmost to ensure
the success of the constitutional reform in November 2005. The reform must be
presented in due time and form to the Armenian people. To this end, it is
crucial that the referendum campaign be fairly, adequately and extensively
broadcast by the media.
43.
The Commission wishes to underline that the success of this process of
constitutional reforms depends on and is the mirror of the maturity of the
Armenian political class. Not only the majority, but also the opposition must
prove their capability of compromising in order to achieve a workable political
environment, which only can lead to democracy in Armenia.
44.
Indeed, a good Constitution is certainly the first crucial step towards
democracy. It is not sufficient though. The Armenian authorities will have to
build a political and social context allowing for an effective realisation of
the newly established system of government. The Commission stands ready to
assist them in this crucial task.
