On what issue did the ECHR reject the judges of the Constitutional Court?

The decision of the ECHR to reject the claim of the former judges of the Constitutional Court refers only to the application of an interim measure, i.e. the examination of the case by a special procedure, whereas the main decision in the case of Gyulumyan and Others v. Armenia has not been made yet.

In the evening of July 8, 2020, the European Court of Human Rights issued a statement noting that an interim measure will not be allied in the case of Gyulumyan and Others v. Armenia.

The decision of the court was interpreted differently by several MPs and other politicians. The deputy of the “My Step” faction of the National Assembly Ruben Rubinyan, responding to the topic on his Facebook page, announced: “The ECHR rejected the appeal of three former judges of the Constitutional Court and former President of the Constitutional Court Hrayr Tovmasyan against Armenia, in which the applicants, among other things, demanded to suspend the implementation of the constitutional amendments as an interim measure.” Other MPs of the same faction have also made similar comments.

Narek Malyan, the head of the “VETO” movement and former assistant to the Chief of Police, in his turn, responded to the topic, stating that “according to his information, Larisa Minasyan, the head of the office of oligarch Soros, personally interfered in the process of obtaining a decision in favor of Nikol Pashinyan.”

The Fact Investigation Platform examined the decision of the ECHR to find out what decision the institution actually made.

What appeal have the members of the Constitutional Court and the President filed?

On June 22, 2020, the National Assembly adopted the draft on constitutional amendments, according to which the powers of members of the Constitutional Court Feliks Tokhyan, Hrant Nazaryan, Alvina Gyulumyan, and president of the court Hrayr Tovmasyan were terminated. A few days later, the dismissed judges appealed to the European Court of Human Rights (ECHR).

In the context of the case Gyulumyan and Others v. Armenia concerning the legality of the constitutional amendments being implemented through the National Assembly, the former members of the Constitutional Court demanded that the ECHR Rule 39, the interim measure, be applied.

As a justification, the judges note that the constitutional amendments were made in violation of Armenian legislation. They claim that the process took place in the context of the persecution of judges, which began in 2018, after the change of government, and intensified after the second president Robert Kocharyan applied to the Constitutional Court.

The judges of the Constitutional Court requested that, as an interim measure, the ECHR demand that the Armenian government, inter alia, suspend the implementation of the constitutional amendments, retain the positions of the mentioned judges, not appoint new judges and “ensure the physical security, as well as psychological and moral integrity of judges by refraining from using administrative resources to manipulate public opinion.”

What did the ECHR decide?

The European Court of Human Rights decided not to use the interim measure.

The ECHR statement notes that according to the Constitution amended in 2015, the term of office of judges of the Constitutional Court is 12 years, and that of the President of the Constitutional Court – 6 years.

However, pursuing a transitional arrangement, judges who had been appointed before the entry into force of these amendments were to continue serving under the old rules, and the president of the CC was to keep his mandate until retirement:

Meanwhile, as it was mentioned in the ECHR decision, recently, it was decided to amend the Constitution in a manner that all judges of the CC would have a 12-year term of office, regardless of their date of appointment. The six-year non-renewable mandate of the head of the Constitutional Court was also to be applied.        Due to the pandemic, these changes were approved by the parliament and came into force in June 2020, as a result of which the three judges and the term of office of the president was terminated. The ECHR decided to reject the appeal of four applicants as it is outside the scope of Rule 39 (interim measure): it does not involve a serious irreversible risk to fundamental rights under the European Convention on Human Rights.

However, the court stressed that it is ready to consider the lawsuit, and if necessary, this case will be considered a priority.

What does Rule 39 imply?

The same document states what Rule 39 of the European Court of Human Rights generally implies.

Thus, the interim measure applies only in exceptional cases where the applicants are exposed to a real risk of irreversible damage (mainly if there is a real threat to the applicant’s life or health).

It is used mainly in cases of deportations and extraditions, when the respondent is required to postpone the decision.

However, interim measures do not predetermine the rationale for future decisions in the case, ie even if the measure is applied, it does not mean that a favorable decision will be made in the future for the applicant or vice versa. It is a temporary procedure.

Thus, the decision of the ECHR to reject the appeal of the former judges of the Constitutional Court refers only to the application of an interim measure – the examination of the case by a special procedure, whereas the main decision in the case of Gyulumyan and Others v. Armenia has not been made yet.

At the same time, it should be noted that the rejection of the applicants’ request for an interim measure is logical and expected, as there is no real threat to the life or health of the former judges and the President of the Constitutional Court.

Lusine Voskanyan