IN THE NAME OF THE REPUBLIC OF ARMENIA

ON THE CASE REGARDING THE CONFORMITY OF PARAGRAPH 1 SUBPARAGRAPH 3, SECOND SENTENCE, PARAGRAPH 4 OF ARTICLE 35, PARAGRAPH 1 OF ARTICLE 36 OF THE ELECTORAL CODE OF THE REPUBLIC OF ARMENIA WITH THE CONSTITUTION OF THE REPUBLIC OF ARMENIA BASED ON THE APPLICATION LODGED WITH THE ONE FIFTH OF THE DEPUTIES OF THE RA NATIONAL ASSEMBLY

The Constitutional Court of the Republic of Armenia with its panel of judges G. Haroutyunyan (presiding judge), K. Balayan, H. Danielyan, F. Tokhyan (rapporteur), V. Hovhanisyan, Z. Ghukasyan, H. Nazaryan, R. Papayan, V. Pogosyan,
with the participation of
representatives of the applicant party, Sh. Kocharyan and H. Tovmasyan,
the respondent, A. Khachatryan, Head of the Department of Legislative Analysis of the NA, representative of the RA National Assembly,
pursuant to paragraph 1 of Article 100 and paragraph 3 of Article 100 of the Constitution and Articles 25 and 68 of the RA Law on the Constitutional Court,
examined in a public hearing the case regarding the consistency of the provisions in the second sentence of sub-paragraph 3 of paragraph 1 of Article 35, paragraph 4, paragraph 1 of Article 36 of the Electoral Code of the Republic of Armenia with the RA Constitution based on the application filed with the one fifth of the Deputies of the RA National Assembly.
The case was triggered through the application submitted by 27 deputies of the National Assembly to the Constitutional Court.
Having heard the statements put forward by the rapporteur on the present case, the arguments of the parties, having examined the RA Electoral Code and other available documents, the Constitutional Court of the Republic of Armenia FOUND:

1. The RA Electoral Code was adopted on February 5, 1999 by the National Assembly of the RA. It was signed by the President of the RA on February 17, 1999 and entered into force on February 28, 1999. The impugned provisions are affirmed in the Electoral Code due to the RA Law on "Making amendments and additions to the Electoral Code of the RA", which was adopted on May 19, 2005 and entered into force on June 1, 2005 (in accordance with the Article 87 of the given law).
The Article 35 of the RA Electoral Code reads:
"1. The Central Electoral Commission is composed of …
3) a member appointed by the decision of a parliamentary group announced at the first session of the current National Assembly. After the Parliamentary elections, followed by the adoption of this law, as well as in the cases of the dissolution of the operating parliamentary group prescribed under this sub-paragraph, the authority to appoint a member for the Central Electoral Commission shall be passed on to the Council of the Chairmen of the RA Courts composed of the judges from the courts of general jurisdiction
4) one judge from the Court of Cassation appointed by the Court of Cassation".
The first paragraph of the Article 36 of the RA Electoral Code defines:
"1. The members of the Precinct Electoral Commission are appointed by the members of the Central Electoral Commission in accordance with the principle one member of the Central Electoral Commission, one member of the Regional Electoral Commission from the persons who participated in the professional trainings and acquired relevant qualifications, except for the representatives appointed in the Central Electoral Commission by the RA Court of Cassation and the Council of the Chairmen of the RA Courts, which appoint members in the Precinct Electoral Commission from the judges of the courts of general jurisdiction".
II. The applicant party arguing the provisions set out in the second sentence of the third sub-paragraph of the paragraph 1 of Article 35 of the RA Electoral Code, sub-paragraph 4, paragraph 1 of Article 36, sought that these provisions are inconsistent with the first paragraph of Article 5, the first paragraph of Article 19 and the first paragraph of Article 98 of the Constitution of RA.
In accordance with Article 5 of the RA Constitution "The state power shall be exercised in accordance with the Constitution and the laws based on the principle of the separation of the legislative, executive and judicial powers.
State and local self-government bodies and public officials are entitled to implement only such acts as authorized by legislation".
According to the first paragraph of Article 19 of the RA Constitution "Everyone shall have a right to restore his/her violated rights, and to reveal the grounds of the charge against him/her in a fair public hearing under the equal protection of the law and fulfilling all the demands of justice by an independent and impartial court within a reasonable time".

In accordance with the first paragraph of Article 98 of the Constitution "Judges and members of the Constitutional Court may not be engaged in entrepreneurial activities nor may they hold an office in state and local self-government bodies or in commercial organizations not connected with their duties, as well as be engaged in any other paid occupation, except for scientific, tutorial and creative work".

The applicants, in particular, stress that impugned provisions are incompatible with the fist paragraph of Article 5 of the Constitution of RA for the following reason: first of all, the principle of the separation of powers implies implementation of the state powers through legislative, executive and judicial bodies. Essentially, the theory of separation of powers excludes the implementation of competences belonging to one of the branches of the powers by other branch or its representatives. Under the impugned provisions the judicial bodies acquire authorities not typical to them, that is to say to participate in organization of the elections by exercising powers attributable to the executive body.
Analyzing the argument that the disputed norms are incompatible with paragraph 1 of Article 19 of the RA Constitution, the applicants consider that Article 19 guarantees the citizens' right to a fair trial. Concluding that in accordance with paragraph 1 of Article 32 of the RA Electoral Code the Electoral Commissions ensure the implementation and protection of the citizens' electoral right and the fact that the disputes arising out of the implementation of the electoral right are also subject to the litigation, the applicants spell out that in the outcome if a citizen challenges the acts of the Central or Precinct Electoral Commissions, then the complaint is to be subjected to the examination by the state body the representatives of which have issued the challenged act. Nevertheless, the court can be unbiased and independent, if it is outside the body that has adopted the decision and it did not take part in the decision-making.
Based on the fact that the challenged norms are inconsistent with the fist paragraph of the Article 98 of the RA Constitution, applicants particularly underline that it derives from the Article 98 of the RA Constitution that the judge carries out his/her official duties based on the principle of professionalism as a fundamental job which is incompatible with the occupation not related to the official duties of a judge. Such requirements of incompatibility for the office of judges aim at ensuring the utilization of judges' entire abilities for the implementation of judges' powers, guaranteeing judges independence and impartiality, as well as at securing and safeguarding high reputation of the judicial power.
III. The respondent finds that the contested norms of the Electoral Code are not incompatible with paragraph 1 of Article 5 of the Constitution of RA, since the electoral commissions, as independent bodies, are not included within any branch of the government, from the perspective of institutional building they are not inside of any branch of state power. In terms of structural functioning the electoral commission does not exercise functions exclusively attributable either to the executive, legislative or judicial powers. In terms of the criterion of individual formation, electoral commissions, as collegial bodies, are formed by various bodies, but they are not accountable to any branch of state power upon their formation.
The respondent finds that there is no inconsistency between the challenged norms of the Electoral Code of RA and the first paragraph of Article 19 of the Constitution assuming that a reasoning of that kind would have been legal exclusively in a case when the dispute is resolved by a judge who is a member of the electoral commission.
Meanwhile, the respondent finds that due to the amendments made to the Constitution the language of the first paragraph of the Article 98 of the RA Constitution has been changed and on that basis the articles concerned have become contradictory to the first paragraph of Article 98 of the RA Constitution.
The respondent has also pointed out that in accordance with Article 117 of the Constitution of RA 'From the moment the constitutional amendments enter into force
1. The National Assembly within two years harmonizes the effective laws with the Constitutional amendments.' Upon this basis, there is a need to make necessary amendments to the Electoral Code, including amendments with regard to such controversial issues as for example the inconsistency between the norms defining the legal status of electoral commission.

IV. According to paragraph 1 of Article 31 of the RA Electoral Code three-stage Electoral Commission is formed for the organization and implementation of the elections in the Republic: Central Electoral Commission, Regional and Precinct Electoral Commissions. The first paragraph of Article 32 defines that 'The electoral commissions ensure the realization and protection of citizens' electoral rights. While exercising their functions electoral commissions are independent from the state and from the local self-government bodies'. These norms clarify the objective of the establishment of the electoral commissions and separate them from all state and local self-government bodies for independent exercise of certain functions. The latter's function is to ensure the formation of representative democracy institutions by means of the exercise and protection of citizens' electoral rights. Accordingly, this function, can not be directly ranked with the functions of other state bodies. In this respect, the involvement of all governmental branches in the formation of the electoral commissions is justified as the guarantees of those commissions' independence can be quite robust. Nevertheless, it does not mean that state bodies one by one may possess such powers, which would jeopardize the effective and impartial exercise of their powers or will endanger the constitutional system of checks and balances.

V. The Constitutional Court also points out that by their state status the electoral commissions are evidently state bodies, which ensure the implementation of state obligations, prescribed by the constitution and international treaties, to guarantee citizens' electoral rights and organization of the elections by the means of an independent and impartial body. Particularly, in accordance with Article 41 of the RA Electoral Code 'The Central Electoral Commission is a body, responsible for organization and control over the legality of elections and it functions on a permanent basis, according to its adopted rules of procedure. Article 42 of the Code stipulates that 'the Regional Electoral Commission functions on a permanent basis and in accordance with the rules of procedure adopted by the Central Electoral Commission'. Irrespective of the fact that Article 33 of the Electoral Code prescribes that the judges from courts of general jurisdiction function on a voluntary basis, nevertheless due to the nature of their functions they hold a state position in a state agency. By the way, paragraph 3 of the same Article defines that 'The Chairman of the Central Electoral Commission, the Deputy Chairman and the Secretary work on a permanent basis and have no right to do another paid work, except for scientific, tutorial and creative work'. Such requirements not only emphasize the particular nature of the given position, but are also important in terms of guaranteeing the equal status of commission members.

VI. It has been already pointed out that the first paragraph of Article 98 of the Constitution of RA stipulates that 'Judges and members of the Constitutional Court neither can be engaged in entrepreneur activities, hold any public office in state or local self-government bodies irrelative to their duties, a position in a commercial organizations, nor in another paid work, except for scientific, tutorial and creative work'. The said provisions aim at creation of guarantees for directing the potential of the subjects administering justice towards serving the interests of the justice impartially, completely and independently, excluding collisions between various interests and the possibility of pressures on judges. In particular, the provision that proscribes judges and members of the Constitutional Court to hold a pubic office in state or local self-government bodies irrelative to their duties implies that the Constitution has defined the frames of the tenure of a judge thus limiting it within the scope of their official duties.
Any approach or a legislative solution with regard to the status and capabilities of a judge is to be implemented only in due regard to this limitation and the law can not expand beyond the scope of constitutionally prescribed limitation. Similar approach has been adopted by the 1989/60 Protocol of the Economic and Social Council of the United Nations (24.05.1989), which has endorsed the efficient procedures of implementation of main principles of independence of judiciary, according to which it is forbidden to demand any judge to perform functions incompatible with his/her status. In turn, the European Court of Human Rights in a number of its decisions has reaffirmed the legal position according to which Article 6.1 of the Convention requires the Court to be independent from executive bodies, as well as from participants in the proceedings and legislative bodies, i.e. the Parliament. However, the procedure of the appointment of the court members by the Parliament can not raise a concern with respect to the independence and impartiality of the court.
In the Republic of Armenia, unlike other states, the judicial protection of the electoral rights shall be implemented not only by the courts of general jurisdiction, but also by the Constitutional Court. Moreover, if the constitution empowers the Constitutional Court to exercise jurisdiction over the disputes in association with the decisions concerning the results of the Presidential and Parliamentary elections, then the courts of general jurisdiction in the cases prescribed under the Articles 14, 17.1, 18, 20, 25, 26, 40, 75, 79, 102,108 are called to decide over the disputes arising during the preparation and the organization of the elections, as well as over the infringements of the provisions of the Electoral Code prescribed by the Article 139 and pass a final decision in that regard. While during the election of the local self-government bodies the judicial protection of the electoral right belongs solely to the courts of general jurisdiction. In this case a judge's right to administer justice is incompatible with the function to organize and hold elections. This will particularly be the case when judges are elected as the chairpersons of electoral commissions, deputy chairperson or secretaries, a fact, which is not excluded by the Electoral Code at all.

VII. Within the subject matter of the case the examination of international practice sets out that the European electoral system is, particularly, based on a number of fundamental principles and approaches, which are also important for the countries pursuing European integration processes. With regard to the organizational issues of the elections, the document "Code of Good Practice in Electoral Matters: Guidelines and Explanatory Report" adopted by the European Commission for Democracy through Law (Venice Commission) on 18-19 October 2002, emphasizes on the necessity of the independent and impartial electoral system. Paragraph 3.1 of the second part of this document is headlined as "Organization of elections by an impartial body". This provision also stipulates "a) The Electoral Law is to be applied by an impartial body. b) The states which do not have a long-standing tradition of an independence of administrative authorities from political authorities, independent and impartial electoral commissions shall be created on all levels from national level to regional electoral level. c) The Central Electoral Commission shall function on a permanent basis". Furthermore, paragraph "d" stresses out that, the Central Electoral Commission together with other members shall also include at least one member from judicial bodies. Paragraph 82 of the same document states that, "Other electoral commissions operating at regional or constituency levels should have similar composition to that of the Central Electoral Commission".
Paragraphs 68-85 specify the provisions for the organization of electoral commission in order to ensure impartial and independent functioning. Paragraph 69 states that "In states where the administrative authorities have a long-standing tradition of independence from the political authorities, the civil service applies electoral law without being subjected to political pressures. It is therefore both normal and acceptable for elections to be organized by administrative authorities, and supervised by the Ministry of the Interior". Paragraph 70 highlights "However, in states with little experience of organizing pluralist elections, there is too great a risk of government's compelling the administrative authorities to do what it wants. This applies both to central and local government - even when the latter is controlled by the national opposition."
On the basis of these considerations, it becomes necessary to have a provision on the inclusion of a representative of the judiciary in the electoral commissions.
The commentary to paragraph 75 of the abovementioned document is interpreted as follows: As a general rule, the composition of the electoral commission together with other members should include "a judge or a law officer: where a judicial body is responsible for administering the elections, its independence must be ensured through transparent proceedings. Judicial appointees should not come under the authority of those standing for office".
It becomes evident that the presence of "a judge or a lawyer "member aims at ensuring the impartiality and independence of a commission. At the same time, it does not merely emphasize the role of a judge, since the existence of a conjunction 'or' implies that the said provision equally concerns both an independent and impartial lawyer and a judge. Based on this principle in several member states of the Council of Europe the inclusion of judges in the composition of the election commissions is provided by the legislation.
Nevertheless, in accordance with paragraphs 3 and 4 of Article 35.1, paragraph 1 of Article 36 and Article 95 of the RA Electoral Code, as well as Articles 14, 15, 18 and 21 of the RA Law on the Judiciary, more than the half of the total number of judges from the courts of general jurisdiction may become members of the electoral commissions, whereas less than the half may challenge the decisions adopted by their colleagues, thus affecting the entire system of justice. According to the Articles 14, 15, 18, 20.1 and 20 of the RA Law on Judiciary, there are 101 justices from courts of the first instance of general jurisdiction and 17 chairmen of those courts, 24 justices from the appeal courts and two chairmen, chairman of the Court of Cassation, two chairmen of the chambers and 10 justices in the Republic of Armenia. Besides, there is also the specialized economic court, which consists of a chairman and 21 justices. Totally, it counts 179 persons, or 157 persons except for the justices of the economic court, 84 of which (or 57, 9 percent except for the chairmen of the courts) simultaneously can become members of the electoral commission. In this regard, paragraph 14 of Article 40 of the RA Electoral Code which stipulates that "Judges appointed as members of the electoral commissions with due process prescribed under the Electoral Code, can not resolve the disputes over the activities (inactions) of the respective electoral commissions" does not change substantially the situation as well. In addition, Articles 35 and 36 jointly examined with paragraphs 1 and 2 of part 3.1 of Article 38 of the RA Electoral Code, which prescribe the procedure of filling vacancies of the central and regional electoral commissions from the number of judges, have not excluded the situations to the extent when the number of judges to hold the positions in the electoral commission may exceed the total amount of the judges from the courts of general jurisdiction.
Taking account the limited number of the judges in the Republic of Armenia, various situations with regard to the balance between the number of the judges included and not included in the electoral commissions prescribed by the Electoral Code, the features of the resolution of election disputes as well as time limitations, it becomes obvious that a conflict seems to be inevitable between the interests of establishing independent electoral commissions on the one hand, and of administering efficient and impartial justice on the other. In this respect, the ensuring of the rights guaranteed under Article 19 of the RA Constitution could also be jeopardized.
Making of a particular importance the role of impartial and independent electoral commissions, it has to be taken into consideration that in transitional countries the realization of the impartial judicial power is rather important.
It is due to these interests that Article 98 of the RA Constitution proscribes judges to hold any office irrelative to his/her official duties. The inclusion of judges in the electoral commissions according to the procedure and the capacity prescribed by the Electoral Code of RA does not come up from the interests of administering justice and ensuring independent judicial power, increases the possibility of collisions between justice and other interests, jeopardizes the impartiality of the judges and courts while resolving electoral disputes.

Having regard the foregoing, as well as pursuant to the first paragraph of Article 100 of the Constitution of RA, Articles 60.1, 63 and 68 of the RA Law on the Constitutional Court of the Republic of Armenia, the Constitutional Court of the Republic of Armenia
FOUND:

1. Sub-paragraphs 3 and 4 of paragraph 1 of Article 35 of the Electoral Code of RA, which envisage that judges can be appointed to serve as members at the central or regional electoral commissions, are repugnant to the paragraph 1 of Article 19 and paragraph 1 of Article 98 of the Constitution of the Republic of Armenia as well as null and void;
2. In accordance with paragraph 9 of Article 68 of the RA Law on the Constitutional Court the provisions of paragraph 2 of Article 35 and sub-paragraphs 1 and 2 of paragraph 3.1 of Article 38 of the Electoral Code of RA which lay down the procedure of filling the vacancies of central and regional electoral commissions from the number of the judges are repugnant to the paragraph 1 of Article 19 and paragraph 1 of the Article 98 of the RA Constitution as well as null and void;
3. According to the paragraph 11 of Article 68 of the RA Law on the Constitutional Court other normative acts which ensured the implementation of the invalid provisions or other relevant provisions are annulled upon entry into force of the decision of the Constitutional Court;
4. In accordance with Article 102 of the RA Constitution, this decision is final and enters into force upon publication.

7 November, 2006
CCD-664