The National Assembly fully adopted the package of judicial reforms developed by the Government in the second reading. Iravaban.net spoke with Lawyer/Anti-Corruption Expert Syuzanna Soghomonyan, Board Member of the Armenian Lawyers’ Association, about the envisaged changes and the role it will have on fulfilling the functions of the Corruption Prevention Commission.
– What does the judicial reform package mean?
– Although the judicial reform package envisages a number of changes in this area, I would like to note two important directions in the context of judicial reform. The first is the mechanisms for ensuring the independence of a judge, and the second is the implementation of judicial vetting.
In relation with the first, it is noteworthy that certain guarantees for the independence of judges were provided to the General Assembly of Judges. In particular, the General Assembly will form committees on ethics and disciplinary issues, evaluation of judges’ activities and education issues. In other words, the judges will be appointed by the General Assembly of Judges. In the case of two commissions, which are the Ethics and Disciplinary Committee and the Education Committee, two lawyers, who will represent non-governmental organizations, will be involved as members, and their selection will also be made by the General Assembly.
And this is really important from two points of view. Ensuring institutional independence of the Judicial System with permissible tools at this stage and ensuring public control for transparent organization of judicial vetting.
By the way, the Armenian Lawyers’ Association has been raising this issue for a long time, presenting relevant proposals at the stage of elaboration and discussion of drafts of Judicial and Legal Reforms Strategies for 2019-2023 and the Implementation Action Plans Issuing from it. In fact, these conceptual proposals that we provided have found their place in the draft on judicial reform.
– Will the process, which will be carried out, be considered a vetting or not?
– In order to answer the question and give a legal assessment to the package in that sense, we must first understand what vetting is. Last year, when my colleagues and I spent about four months researching transitional justice (we studied the experiences of about 35 countries from different continents where transitional justice tools were used), one of the goals was to present to the public, including all stakeholders, the main nature of transitional justice, the scope of application and the tools. Vetting is a tool of transitional justice. It is an instrument of institutional reform that includes, among other things, the introduction of regular mechanisms of security clearance for employment, appointment or promotion, especially when those positions relate to sensitive areas.
As for judicial vetting, based on international experience, it is usually carried out by the highest judicial system, and includes:
- Asset assessment,
- Background assessment,
- Proficiency assessment.
Now let’s understand what morality is.
Integrity is a set of the following four principles: transparency and accountability, professionalism (competence), ethics and, at the end, the result of all this is anti-corruption behavior.
The RA Constitutional Law on “Making Amendments and Addenda to the Constitutional Law of the Republic of Armenia” adopted by the National Assembly a few days ago, provides for such regulations; and saying that there will be no vetting of the current judges, or the study of property income and interest declarations is not a vetting, is not as surprising to me as it is painful, when this unprofessional position is expressed by a representative of the Anti-Corruption Commission, whose powers include the conduct of certain elements of judicial vetting, including the examination of the integrity of candidates for judges, the study of property income and interest declarations, as well as initiating disciplinary proceedings against judges if the judges have violated the requirements of the Law on Public Service to submit a declaration of property, income and interests.
In other words, in fact, the study of judges’ property and income is a test of one of the principles of judges’ integrity: transparency and accountability. Moreover, this inspection is carried out through a detailed analysis of the declarations and a comparison of the data, including the declarations submitted after 1 July, 2017. As a reminder, this is the date when the norm providing for criminalization of illegal enrichment came into force in Armenia. In case of detection of violations as a result of the analysis of the declarations, the Commission shall take the necessary measures in accordance with the procedure established by law, including informing the law enforcement agencies about the alleged criminal offense.
Returning to the principles of integrity, I would add that if the above is added to the examination of the declared interests of judges, it turns out that we are dealing with the other principle of integrity – the ethics, because ethics includes the conflict of interests as well. It turns out that the package of judicial reforms includes judicial vetting, which involves the verification of integrity of judges and candidates for judges, which is carried out by checking assets and the rules of ethics and conduct.
I also noticed the formulation of the representative of the Corruption Prevention Commission that the conclusions on ethics by the Commission are of an advisory nature and may not be accepted by the SJC. It’s really amazing to be endowed with such an extended toolkit, and to say that our conclusions are advisory, they don’t really matter to the SJC, and they may not be accepted. This is nothing but a retreat from the proper exercise of the powers vested in the Commission by law. Yes, the conclusions of the Commission should be of an advisory nature, and not necessarily affect the decisions made in the judiciary. But like any norm and legal regulation, this is not an end in itself. If the legislature has given such authority to the Commission, it means that the conclusions of the Commission, if objective and well-founded, should be of a guiding-advisory nature and should be taken into account by the SJC in initiating appropriate disciplinary proceedings. And, in the case when the SJC still bypasses the mentioned conclusions, we are already moving to another level, and there will be a need for additional discussion of the SJC’s activity.
– Will there be no verification of the integrity rules during the vetting process? Are they different processes?
– As I have already mentioned above, the examination of integrity is a tool for the implementation of judicial vetting.
– What additional opportunities does the Corruption Prevention Commission have with the adopted draft?
– At this stage, the Corruption Prevention Commission has been provided with a very comprehensive toolkit for the purpose of preventing corruption. It includes checking the integrity of judges and candidates for judges, which in turn involves checking the declaration of property, income and interests, conducting an integrity test among candidates. At the same time, a rather important innovation has been made, and again, based on our proposal, the institute of situational declarations has been introduced, which allows the Commission, in case of reasonable doubt, to request a declaration from non-declarant persons who are in any way related to the declarant official. I would like to mention once again that the Commission also has the right to initiate disciplinary proceedings against judges.
Another important tool for proper analysis of declarations under Article 25 (2) of the Corruption Prevention Commission is that it is authorized to request and receive information and documents on the declarant official and his/her family members, from the state and local self-government bodies, the Central Depository, from other persons entitled to hold a register of securities owners, from the credit bureaus: except, of course, for the cases provided for by the RA Law on Banking Secrecy.
These are a part of the tools I mentioned. They are more comprehensive, and in order to succeed here, this toolkit, the competence of the bodies and the will are important.