On September 14,2020 the RA National Assemblywill discuss the issue of electing Yervand Khundkaryan, Edgar Shatiryan and Arthur Vagharshyan, candidates for the three vacant positions of judges of the RA Constitutional Courtin an extraordinary session.
The Armenian National Platform of the Eastern Partnership Civil Society Forum has been following the developments around the Constitutional Court over the past two years and occasionally expressed concerns about them.
Two years after the2018 revolution, the government finally expressed its will to resolve the crisis of the Constitutional Courtby amending Article 213 of the RA Constitution. Although the amendmentscame into force on June 26, 2020, to dateno candidates possessing adequate experience,professional and moral qualities had been nominated as candidates for judges to the RA Constitutional Court that would be capable ofrestoring the democratic legitimacy of the Court, enhancing the reputation of the Court and fighting for the solution of the problems facing the State and the Court.
It is important to note that the process of nominating candidates by the Government was shadowy, did not meet the requirements of equality, justice and transparency. As a result, one of the nominated candidates was severely criticized by the civil society and refused to push his candidacy. Such a shadowy process raises suspicions of corruption, damages the reputation of both the nominating body and the high Court.
We express concerns over Edgar Shatiryan’s candidacy, conditioned by his 2015-2019 activities in the Commission on Ethics of High-Ranking Officialsand his resignation after being elected a member of the Corruption Prevention Commission by the National Assembly of this convocation on the grounds that he had not been elected President of that Commission.
Arthur Vagharshyan’s candidacy was rejected by the National Assembly of this convocation a year ago after a detailed discussion at the plenary session of the National Assembly.Therefore, a year later, the approval of his candidacy will need a serious clarification, and will raise obvious doubts in terms of shadowy and corrupt processes.
We express our concernsespecially about Yervand Khundkaryan’s candidacy. We state that in the person of that candidate, we are dealing with someone who for a considerable period of timehas been actively involved in the regress of human rights and democracy in Armenia.
In 2001-2008 Yervand Khundkaryan worked as a judge of the RA Economic Court, in 2008-2010 – Judge of the Civil and Administrative Chamber of the RA Court of Cassation, in 2010-2018 – Chairman of the Civil and Administrative Chamber of the RA Court of Cassation, from 2018 to present – Chairman of the RA Court of Cassation. During his tenure as President of the Civil and Administrative Chamber of the Court of Cassation, Khundkaryan participated in numerous cases, on some of which the ECHR has ruled against the Republic of Armenia, recognizing violations of the applicants’ rights and in some cases setting compensations above 300,000 Euro.
In terms of the previous authorities’ activities against democracy and freedom of speech in Armenia, the well-known case of “Meltex” LLC (“A1+ TV company”) examined by Yervand Khundkaryan is extremely important. A1+ TVcompany, as an independent media, criticized the government of the time in the person of President Robert Kocharyan, hence, due to political motives aimed at suppressing the TV company, it was not granted a broadcasting license. In this case there is not only a decision of the ECHR against the Republic of Armenia, but also a resolution adopted by the Parliamentary Assembly of the Council of Europe (PACE) (see PACE Resolution 1361 (2004)), which expressed strong concerns about the backsliding of democracy and freedom of speech in the Republic of Armenia.
As a result of the decisions adoptedwith the participation of Yervand Khundkaryan, today there are already judgments of the ECHR, which recognizeviolations of fair trial of people and property rights by the RA. Among them are the cases of deprivation of property of Teghut residents, which are about 200, but few have been able to apply to the ECHR, cases of the sale of the property on the Main Avenue and violations of property rights, other cases of fair trial and violation of property rights. These judgmentsindicate the fact that the government of the Republic of Armenia violated democratic values, fundamental human rights, and the judiciary demonstrated neutrality and great tolerance in connection with these violations. Moreover, these are not all the cases on which ECHR decisions are still going to be made.
The decisions/judgments made by Yervand Khundkaryan and with his participation should be evaluated both in terms of pecuniaryand non-pecuniarydamage caused to the Republic of Armenia, both from the point of view of quantity and content. It is these decisions that among other things characterize the judiciary, which has violated human rights, it is these decisions that created distrust towards the judiciary and destroyed belief in justice. These very decisions created a more favorable ground for the strengthening of anti-democratic, totalitarian rule. These decisions were the pillar of systemic corruption and damaged the international reputation of the Republic of Armenia.
In addition to the above, we consider it essential that the Corruption Prevention Commission gave a negative conclusion on Yervand Khundkaryan’s candidacy for a judge of the Constitutional Court.
The commitment of the political force that came to power as a result of the2018 revolution, and in particular of Prime Minister Nikol Pashinyan to democratic values, respect for and protection of human rights, as well as intolerance towards violations of these values should be the driving force of thelegal policy of the State. And if today, due to some circumstances, the process of releasing the courts from the persons who are a stigma of justice is delayed, the Constitutional Court can surely not be supplemented with them.
Such an election will overshadow not only the reputation of the Constitutional Court, but also that of the National Assembly.
Taking into account the above-mentioned, the Armenian National Platform of the EaP Civil Society Forum demands to reject the candidacy of Yervand Khundkaryan, Edgar Shatiryan and Arthur Vagharshyan for the post of a judge of the Constitutional Court of the Republic of Armenia.
Note: The Armenian National Platform of the EU Eastern Partnership (EaP) Civil Society Forum (CSF) is a voluntary association of more than 230 Armenian civil society organizations, whose members make utmost efforts for the realization of the CSF mission in Armenia as well as in the entire EaP region. The ANP is consistent in implementing EaP projects, harmonizing the solutions of the country’s domestic problems with the EU standards, ensuring participation and awareness of all segments of general public and carrying out democratic reforms consistently.
Osmanyan and Amiraghyan /http://hudoc.echr.coe.int/eng?i=001-186669/, Alikhanyan /http://hudoc.echr.coe.int/eng?i=001-189793/, Mashinyan and Ramazyan / http://hudoc.echr.coe.int/eng?i=001-189795/, Vardanyan and Hakhverdyan /http://hudoc.echr.coe.int/eng?i=001-189794/, Parsadanyan/http://hudoc.echr.coe.int/eng?i=001-189792/, Levon Amirkhanyan /http://hudoc.echr.coe.int/eng?i=001-189790/, Ramazyan / http://hudoc.echr.coe.int/eng?i=001-189789/, Alikhanyan and Meliksetyan/http://hudoc.echr.coe.int/eng?i=001-191547/, Tamrazyan /http://hudoc.echr.coe.int/eng?i=001-201738/Violations of the rights to fair trial and property
Tadevosyan/http://hudoc.echr.coe.int/eng?i=001-192982/, Khachaturyan /http://hudoc.echr.coe.int/eng?i=001-201737/ – Violation of property right – illegal deprivation of property for state and public needs