CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 janvier 2025

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text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s9D025815 { width:20.21pt; display:inline-block } .s915ECF9D { width:130.43pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FIFTH SECTION CASE OF SUREN ANTONYAN v. ARMENIA (Application no. 20140/23)   JUDGMENT   Art 6 § 1 (civil) • Independent tribunal • Dismissal of judge following disciplinary proceedings before the Supreme Judicial Council (“SJC”) established after constitutional amendments • SJC satisfied Art 6 § 1 “tribunal” requirements • Manner of appointment of the SJC’s non-judicial members in case-circumstances did not compromise its independence • Institutional and operational arrangements provided safeguards against undue influence or unfettered discretion of the legislature • No evidence safeguards were theoretical and did not operate in practice • Appointment process was merit-based and transparent • Mere fact two non-judicial members previously held high-level posts in the executive insufficient to conclude lack of independence • No evidence appointment of non-judicial members sitting in applicant’s case were tainted by political influence • Not demonstrated that non-judicial members had any material, hierarchical and administrative dependence on either executive or legislature endangering their independence and impartiality • No   issue in respect of parity between the SJC’s judicial and non-judicial members Art   6 § 1 (civil) • Access to court • SJC qualified as a “court” to which the applicant had access • No issue due to lack of further review of the SJC’s decisions before the ordinary courts Art 6 § 1 (civil) • Impartial tribunal • Applicant’s doubts as to the impartiality of the SJC’s Chair, stemming from the Chair’s close relationship with the Minister of Justice who had brought the disciplinary proceedings against him, objectively justified • Relationship, which had some financial and political implications, transcended mere friendship as former colleagues and was capable of raising legitimate fears as to the Chair’s impartiality • SJC’s failure to dispel the applicant’s fears • Lack of sufficient procedural safeguards   Prepared by the Registry. Does not bind the Court.   STRASBOURG 23 January 2025   FINAL   23/04/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Suren Antonyan v. Armenia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mattias Guyomar , President ,   Armen Harutyunyan,   Stéphanie Mourou-Vikström,   Gilberto Felici,   Andreas Zünd,   Kateřina Šimáčková,   Mykola Gnatovskyy, judges , and Victor Soloveytchik, Section Registrar, Having regard to: the application (no. 20140/23) against the Republic of Armenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Armenian national, Mr Suren Antonyan (“the applicant”), on 16 May 2023; the decision to give notice to the Armenian Government (“the Government”) of the complaints under Article 6 of the Convention concerning the alleged denial of the applicant’s right of access to an independent and impartial tribunal to contest his premature dismissal from the post of judge, and to declare inadmissible the remainder of the application; the decision to grant priority to the case under Rule 41 of the Rules of Court; the parties’ observations; Having deliberated in private on 17 December 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the alleged denial to the applicant of access to an independent and impartial tribunal within the meaning of Article 6 of the Convention regarding his premature dismissal from the post of judge. THE FACTS 2.     The applicant was born in 1969 and lives in Yerevan. He was represented by Mr A. Zrvandyan, a lawyer practising in Yerevan. 3.     The Government were represented by their Agent, Mr Y. Kirakosyan, Representative of the Republic of Armenia on International Legal Matters. 4.     The facts of the case may be summarised as follows. ESTABLISHMENT OF THE SUPREME JUDICIAL COUNCIL and its composition 5.     Following constitutional amendments in 2015, significant changes were made to the provisions on the judicial career of judges. Notably, in 2018 a sui generis body, namely the Supreme Judicial Council ( Բարձրագույն դատական խորհուրդ – “the SJC”) was set up with exclusive competence to decide on disciplinary measures against judges including dismissal. Under the Constitution, the SJC is composed of five judicial and five non-judicial members, appointed for a five-year non-renewable term. The judicial members are elected by the General Assembly of Judges, that is by their peers, while non-judicial members are nominated by political groups and elected by the National Assembly by a qualified majority of votes (see Articles 173-175 of the Constitution quoted in paragraph 20 below; see also paragraph 54 below). 6 .     Non-judicial members V.K., K.A., E.T. and H.K. of the SJC were nominated by political groups predominantly composed of deputies (“MPs”) from the ruling party, and elected by the National Assembly where that party held a constitutional majority. In their election by the National Assembly, non-judicial members V.K. and H.K. also received votes from MPs belonging to opposition parties, while those parties did not take part in the nomination and election of K.A. and E.T. 7 .     Between 3 August 2021 and 5 October 2022, that is prior to his appointment to the SJC on 6 October 2022, K.A. held the post of Minister of Justice. During that time, G.M. was K.A.’s deputy. Following K.A.’s appointment to the SJC, G.M. was Acting Minister of Justice and on 26   December 2022 he was appointed to the post of Minister of Justice. Prior to her appointment as non-judicial member, E.T. was also K.A.’s deputy at the Ministry of Justice. Between July and September 2022 K.A. was a member of the ruling political party. 8 .     According to the Government, prior to her appointment to the SJC, the Commission for the Prevention of Corruption (“CPC”) carried out a good character check in respect of E.T. and found, among other things, that the fact of her previously being a deputy Minister could not cast doubt on her integrity if elected as a non-judicial member of the SJC. 9.     On 7 October 2022 the SJC elected K.A. as Chair of the SJC for a period of two years and six months. 10.     In 2024 both G.M. and K.A. resigned from their respective posts. Disciplinary proceedings againSt the applicant 11.     From 2009 the applicant was a judge of the Civil and Administrative Chamber of the Court of Cassation and was entitled under the law to serve until his retirement at the age of 65 (see Article 166 § 8 of the Constitution quoted in paragraph 20, as well as paragraph 22 below). 12 .     On 3 December 2015 the Court found a violation of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention in the case of Amirkhanyan v.   Armenia (no. 22343/08, §§ 40 and 48, 3 December 2015). In particular, the Court held that by admitting another appeal lodged by the same party and subsequently granting it, the Court of Cassation (the applicant had sat on the adjudicating panel of that court) had overturned a final judgment issued in Mr   Amirkhanyan’s favour in a property dispute and had thereby breached the principle of res judicata and had unlawfully deprived Mr Amirkhanyan of his possessions (§§ 39-40 and 46-48 thereof). 13 .     On 8 September 2022 the Ministry of Justice requested that the Judicial Department transfer the case file pertaining to Mr Amirkhanyan’s case (see paragraph 12 above) to it for examination; the Judicial Department did so on 23 September 2022. On 30 November 2022 the then Acting Minister of Justice, G.M., following a report submitted by the Head of the Supervision Division of the Ministry from 28 November 2022, decided to initiate disciplinary proceedings against the applicant under section 146(1)(4) of the Constitutional Act on the Judicial Code (“the Judicial Code”; see paragraph   42 below). Then, on 26 December 2022 he applied to the SJC to determine the applicant’s disciplinary liability. Notably, referring to the Court’s judgment in Amirkhanyan (cited above), G.M. submitted that the Court of Cassation had breached the relevant domestic and Convention provisions by overturning a final judicial decision. 14 .     On 18 January 2023 the applicant, relying on, inter alia , section   71(2)(1) and (5) of the Judicial Code (see paragraph 24 below), sought the withdrawal of K.A. from the panel of the SJC. In support of his application, he submitted, in particular, that following a government session of 27 January 2022, K.A. had given an interview to journalists, during which he had stated that “G.M. is indeed my friend and we were also business partners. Since the post of Deputy Minister of Justice, like that of other ministerial deputies, is a political post, [this] attests to the fact and is indeed the ground on which you choose [as your deputy] not only a good but also a trustworthy specialist, who shares your ideas. In this sense, Mr G.M. meets [these] requirements. As far as his previous political views are concerned, I can only confirm that his political views and ideas, my own and those of others coincide”. 15.     The applicant claimed that it was obvious from K.A.’s statement that he was biased given his relationship with G.M. He also argued that it was common knowledge that G.M. and K.A.’s wife held respectively sixty and forty percent of the shares in a local law firm. Thus, K.A. or his wife also had economic links with G.M. within the meaning of section 71(2)(5) of the Code. 16 .     When deciding on the applicant’s case the panel of the SJC was composed of eight members – four professional judges and four non-judicial members, namely V.K., E.T. and H.G. and Chair K.A. who was also the rapporteur in the case. 17 .     During the hearing of his case, the applicant requested the SJC to decide whether section 146(1)(4) of the Judicial Code was applicable to his case. K.A. asked his colleagues “[C]ould we decide on this [application] on the spot, or if there are any concerns, we could go to the deliberation room?” It appears from the video recording that the other members of the SJC did not object to K.A.’s proposal. The latter then concluded “[G]reat, so we have discussed [the application] on the spot and, our colleagues also agreed, [the other members nodding] that the application should be dismissed. We will address it in the final decision.” Turning to his colleagues, K.A. asked “[I] understood it correctly, didn’t I?” The other members nodded in reply. The applicant then stated that if the SJC was rejecting his request, then he would wish to supplement his earlier application in which he had asked the SJC to stay the proceedings and apply to the Constitutional Court in order to determine the constitutionality of the relevant provision. K.A. asked his colleagues “[S]hould we decide this on the spot or does anyone wish to discuss it separately? Are there any doubts that this application should be dismissed [so] that we could proceed to the next stage?” None of the members expressed a wish to go to the deliberation room. K.A. then added that “If there are no doubts, having discussed [the application] on the spot, the [SJC] decided to dismiss [it] as well. And now we move to the closing arguments.” The applicant’s lawyer then submitted that if his motion seeking to supplement his earlier application was rejected, then he would like the SJC to examine that very application (to apply to the Constitutional Court). K.A. replied that it was being rejected too, and the applicant would see the reasoning for the refusal in the decision. It appears that the SJC had previously examined a similar application and therefore there was no need to discuss the applicant’s application in the deliberation room. 18 .     On 26 January 2023 the SJC allowed G.M.’s application and decided, by a unanimous vote, to terminate the applicant’s term of office on account of a fundamental disciplinary violation under section 142(6)(1) of the Judicial Code (see paragraph 39 below). As regards the applicant’s application seeking the withdrawal of K.A., the SJC noted that section 71(2)(5) of the Judicial Code aimed to rule out situations where, during decision-making, a judge was constrained by actions or inactions of one of the parties which could cause for him or her financial consequences. The presence of an economic interest thus implied a situation where, in his or her private capacity, a judge or his or her relative had such an interest which could influence the proper discharge of a judge’s duties. Thus in terms of section   71(2)(5) an economic interest could be present only when one of the parties had a substantial leverage directly impacting upon the judge’s, or his or her close relative’s, financial interests. The SJC observed that G.M. had transferred his shares to fiduciary management and thus, having no control over the property at issue under section 31(11.2) of the Public Service Act (see paragraph 56 below), could in no way influence K.A. in the exercise of his duties as Chair of the SJC. The SJC held that the well-known facts pinpointed by the applicant were therefore not sufficient of themselves to conclude that K.A. could be biased. The SJC concluded that the applicant’s application for K.A.’s withdrawal had to be rejected quoting the Court’s case ‑ law (specifically, Rustavi 2 Broadcasting Company Ltd and Others v.   Georgia , no. 16812/17, § 363, 18 July 2019; Fazlı Aslaner v. Turkey , no.   36073/04, § 36, 4 March 2014; Stoimenovikj and Miloshevikj v. North Macedonia , no. 59842/14, §§ 39-41, 25 March 2021; and Karrar v. Belgium , no. 61344/16, § 36, 31 August 2021). 19 .     The decision of the SJC entered into force from the moment of its pronouncement and was final. No appeal lay against this decision before the ordinary courts. RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic Law and Practice The Constitution of the Republic of Armenia (following the amendments introduced on 6 December 2015) 20 .     The relevant provisions of the Armenian Constitution read as follows: Article 61 § 1 “Everyone has the right to effective judicial protection of his or her rights and freedoms.” Article 63 § 1 “Everyone has the right to a fair and public hearing of his or her case, within a reasonable time, by an independent and impartial court.” Article 164 “... 8. The powers of a judge shall cease upon the expiry of the term of those powers, in the case of the loss of citizenship of the Republic of Armenia or the acquisition of citizenship of another State, when a criminal conviction takes effect against him or her, when a criminal prosecution against him or her is discontinued on grounds for non ‑ acquittal, when a civil judgment takes effect declaring him or her to have no active legal capacity, or to be missing or dead, or in the case of his or her resignation or death. 9. Where a judge breaches the conditions of incompatibility, engages in political activities, is unable to hold office for health reasons, or commits a fundamental disciplinary violation, his or her powers shall be terminated, in the case of Constitutional Court judges by a decision of the Constitutional Court, and in the case of other judges by a decision of the Supreme Judicial Council.” Article 166 § 8 “A judge shall hold office until the age of sixty-five...” Article 173 “The Supreme Judicial Council is an independent State body that guarantees the independence of the courts and the judges of those courts.” Article 174 “1. The Supreme Judicial Council shall be composed of ten members. 2. Five members of the Supreme Judicial Council shall be elected by the General Assembly of Judges, from among judges having at least ten years of experience as a judge. Judges from all levels of court must be included in the Supreme Judicial Council. A member elected by the General Assembly of Judges may not act as chairperson of a court or chairperson of a chamber of the Court of Cassation. 3. Five members of the Supreme Judicial Council shall be elected by the National Assembly, by at least three fifths of votes of the total number of Deputies, from among legal scholars and other distinguished lawyers holding citizenship of only the Republic of Armenia, having the right of suffrage, with high professional qualities and at least fifteen years of professional work experience. The member elected by the National Assembly may not be a judge. 4. Members of the Supreme Judicial Council shall be elected for a term of five years, without the right to be re-elected. ... 7. The Supreme Judicial Council shall, within the time limits and under the procedure prescribed by the Judicial Code, elect a Chairperson of the Council, successively from among the members elected by the General Assembly of Judges and the National Assembly. 8. Detailed provisions on the composition of the Supreme Judicial Council shall be laid down in the Judicial Code.” Article 175 “The Supreme Judicial Council shall: (1) draw up and approve the lists of candidates for judges’ posts, including candidates subject to promotion; (2) propose to the President of the Republic the candidates for judges’ posts subject to appointment, including those subject to appointment by way of promotion; (3) propose to the President of the Republic the candidates for chairpersons of courts and the candidates for chairpersons of chambers of the Court of Cassation, subject to appointment; (4) propose to the National Assembly the candidates for judges’ posts and for Chairperson of the Court of Cassation; (5) decide on the issue of secondment of judges to another court; (6) decide on giving consent for initiating criminal prosecution against a judge or depriving him or her of liberty with respect to the exercise of his or her powers; (7) decide on the issue of determining a judge’s disciplinary liability; (8) decide on the issue of terminating the powers of judges; (9) approve its estimate of expenditures as well as those of the courts, and submit them to the government, in order to include them in the Draft State Budget as prescribed by law; (10) constitute its staff in accordance with law. 2. Where it examines the issue of determining a judge’s disciplinary liability, as well as in other cases prescribed by the Judicial Code, the Supreme Judicial Council shall act as a court.” Constitutional Act on the Judicial Code (“the Judicial Code”) (2018; as in force at the material time) 21 .     Sections 4(1), 5(1) and 83(1) of the Judicial Code lay down similar incompatibility requirements for judges and non-judicial members of the Supreme Judicial Council. In particular, they may not engage in political activities, hold any position in State or local self-governing bodies (and in the case of a judge, any position in State or local self-governing bodies not related to his or her status), any position in commercial organisations, or engage in entrepreneurial activities or perform other paid work, except for scientific, educational and creative work. 22 .     Section 56, headed “Irremovability of a judge”, provides that a judge holds office until the age of sixty-five. 23 .     Section 66(2) provides that the rules of conduct for judges are mandatory for, inter alios , the members of the SJC elected by the National Assembly. 24 .     Section 71(1) provides that a judge must withdraw if he or she is aware of such circumstances which, from the standpoint of an objective observer, could cast reasonable doubt on his or her impartiality in the case. Section   71(2) lays down the grounds for withdrawal which, inter alia , include situations where (1) the judge is biased against the party to the case, his or her representative, attorney, or other participants in the proceedings, or (5)   the judge knows or ought reasonably to have known that he or she or his or her next of kin has an economic interest related to the nature of the dispute or with one of the parties. Section 71(5) provides that a judge is not obliged to submit a self-recusal application or accept a recusal request if no other tribunal could be constituted to deliver a judicial act. 25 .     Sections 79 and 80 contain provisions similar to Articles 173 and 174 of the Constitution. 26 .     Section 80(6) specifies that professional work experience in respect of non-judicial members refers to professional activity in the field of law. Section 80(7) provides that a candidate for a non-judicial member’s post is entitled to submit material to show that he or she is a distinguished lawyer. 27 .     Section 81(2) provides that the National Assembly elects non-judicial members of the SJC pursuant to Article 174 § 3 of the Constitution and in the manner prescribed by the Constitutional Act on “Rules of Procedure of the National Assembly”. 28 .     Section 83(2) provides that the salary of a member of the SJC is prescribed by law and cannot be less than that of a judge of a Court of Cassation. Section 83(5) provides that sections 51 (immunity of the judge), 53 (informing the SJC about investigatory actions with the participation of a judge who is not the subject of criminal prosecution), 54 (exemption of a judge from drafting and military training), 55 (maintenance of guarantees of judicial immunity during martial law or emergency), 57 (judge’s salary and social guarantees), 58 (judge’s leave), 59 (right of the judge to participate in training), 60 (judge’s personal file), 62 (service certificate of the judge), 63   (judge’s security and personal protection means), 64 (expenses related to judge’s business trips and out-of-court hearings) and the rules of Chapter 21 (Examination by the SJC of the issue of allowing a judge to face criminal prosecution in connection with the discharge of his/her duties or to be deprived of his/her liberty) of the Code shall apply (“ mutatis mutandis ”) to members of the SJC elected by the National Assembly to the extent applicable and unless otherwise specified in the Code. 29 .     Section 84(9) provides that the chair of the SJC is elected for a period of two years and six months, but no longer than until the end of his or her term of office at the SJC, without a right of re-election. Section 84(11) provides that the chair of the SJC, inter alia , convenes and leads the sessions of the SJC, signs the decisions thereof, represents the SJC in relations with other bodies, and discharges other tasks related to the proper functioning of the SJC. 30.     Section 85(1) provides that the SJC must determine the disciplinary liability of one of its members for breaching rules of conduct laid down in the Code in respect of judges except for the rule prescribed by section 69(1)(11) of the Code (the judge shall observe restrictions prescribed by the Code on accepting a gift). Section 85(2) provides that the issue of the disciplinary liability of a member of the SJC must be examined upon the application of at least three members of the SJC. In cases prescribed by the Code, the CPC brings disciplinary proceedings against the member of the SJC by applying to the SJC to have its member’s disciplinary liability determined. 31 .     Section 86(1) lists cases where the powers of an SJC member cease, in particular (1) upon expiry of his or her term of office; (2) in the case of the loss of Armenian citizenship or acquisition of citizenship of another country; (3) upon entry into force of a guilty verdict or the termination of criminal prosecution against him or her owing to grounds for non-acquittal; or (4)   taking of effect of a court judgment declaring him/her lacking in legal capacity or having limited legal capacity, a missing person or dead, or (5) in the event of his/her resignation or (6) death; (7) for judicial members, also the termination or cessation of their term of office. Section 86(3) provides that the powers of an SJC member are terminated if he or she (1) breaches incompatibility requirements; (2) engages in political activities; (3) is unable to perform his or her official duties owing to temporary incapacity lasting over four subsequent months, or over six months in a calendar year, except for the reasons of maternity/paternity leave, or child adoption leave, or where after being elected he or she acquires a physical impediment, or an illness, hindering his or her appointment to the position; (4) has committed a fundamental disciplinary violation; (5) has not, without a good reason, participated in the sessions of the SJC at least twice within a year; (6) has refused to vote or abstained from voting at least once, except where, as provided for by the Code, his or her participation in the vote is excluded; (7)   fails, at least once, to notify any circumstances excluding his or her participation in the session of the SJC. 32.     Section 87(2) provides that a failure by the chair of the SJC to discharge his or her duties will constitute grounds on which to terminate his or her powers by means of a decision passed by a two-thirds majority of votes of SJC members. 33 .     Section 88(1) provides that a member of the SJC has only one vote, unless otherwise provided by the Code. Section 88(2) provides that a member of the SJC may not participate in the discussion of the issue and decision ‑ making, where there is a ground for self-recusal of a judge with regard to that issue. Section 88(3) provides that a member of the SJC must submit an application for self-recusal to the SJC immediately upon becoming aware of the grounds for self-recusal, specifying the circumstances serving as the grounds for self-recusal. Section 88(4) provides that a member of the SJC and a party to the proceedings may raise the issue of the recusal of a member of the SJC. Section 88(5) and (6) provides that the person presiding over the session of the SJC must initiate a discussion of the issue of self-recusal or recusal, which will be discussed with the participation of the member of the SJC having recused himself or herself or whose recusal is being sought. As a result of the discussion of the issue, the SJC will render a decision. The member of the SJC having recused himself or herself or whose recusal is being sought, as well as the member having sought the recusal, cannot participate in the vote on self-recusal or recusal. Section 88(7) provides that where the self-recusal or recusal is accepted, the member in question cannot participate in the examination of, or any decision-making on, the issue giving rise to a ground for recusal. 34 .     Section 90(2) provides that, when deciding on the matter of, inter alia , determining a judge’s disciplinary liability or terminating his or her term of office, the SJC acts as a court. Section 90(3) provides that the chair convenes the sessions of the SJC of his or her own motion, upon a request of at least three members of the SJC or the president of a court. Section 90(6) provides that, when acting as a court, the sessions of the SJC are public unless the SJC, upon an application of its member or a participant in the proceedings, takes a well-reasoned decision to hold a closed session, in the interests of the right to respect for private life of a participant in the proceedings or of justice, or for the protection of State security, public order or morals. 35 .     Section 92(3) provides that, when acting as a court, a session of the SJC shall have a quorum if more than half of the total number of its members are present. 36.     Section 93(1) provides that the members of the SJC participate in its sessions. Section 93(2) provides that the chair of the SJC or his or her substitute leads the sessions of the SJC. Section 93(3) provides that the member leading the session opens it and puts the approval of the agenda to a vote, then announces what question will be discussed and who will report on the issue, if necessary submitting to a discussion the sequence of the discussion of items on the agenda. Section 93(4) and (5) provides that the session of the SJC starts with the report by the chair or another member of the SJC, upon the chair’s assignment. The members of the SJC have a right to make a speech in respect of each issue discussed at the session, ask questions, or make proposals or objections. 37 .     Section 94(6) provides that the decisions of the SJC concerning the issue of, inter alia , determining a judge’s disciplinary liability or terminating his or her term of office, will be taken in a deliberation room and with an open ballot by a majority of the votes of the members present at the session, provided that at least half of the members of the SJC vote for the decision. If the SJC does not adopt a decision due to the lack of a sufficient number of votes, then the decision to reject the relevant application is considered adopted, and the decision is drawn up and signed by the members of the SJC who voted against the application. Section 94(7) provides that, except for the case provided for in part 6 of this section, the decisions taken by the SJC as a court are signed by all members present at the session. A member of the SJC may issue a separate opinion on the reasoning or final part of a decision of the SJC as a court. If a member of the SJC has a separate opinion, it is noted with his or her signature in the decision of the SJC, and the separate opinion is attached to the decision with his or her signature. 38 .     Section 141(2) provides that disciplinary proceedings are to be conducted on the basis of the principles of lawfulness, non-interference with judicial activities, respect for the independence and reputation of judges and courts, proportionality of the disciplinary penalty imposed on a judge, and prohibition of arbitrariness and discrimination. 39 .     Section 142(1) provides that a judge’s disciplinary liability may be engaged for (1) a violation of provisions of substantive or procedural law while administering justice or discharging other duties as a court, committed with intent or gross negligence, and (2) a gross violation by the judge of the rules of judicial conduct prescribed by this Code, committed with intent or gross negligence, except for the rule prescribed by section 69(1)(11) of the Code (the judge shall observe restrictions prescribed by the Code on accepting a gift). Section 142(6) defines a fundamental disciplinary violation as, inter alia , (1) the violation specified under section 142(1)(1) which has resulted in a fundamental breach of human rights and (or) freedoms enshrined in the Constitution or international treaties ratified by Armenia or has dishonoured the judiciary. 40 .     Section 143(1) and (2) provides that the duty to prove the existence of grounds for disciplinary liability is vested in the body instituting disciplinary proceedings against a judge. The judge concerned is presumed innocent until his or her guilt is determined by the decision of the SJC to establish his or her disciplinary liability in the manner prescribed by the Code. Any doubt as to the commission of a disciplinary offence should benefit the judge. 41.     Section 145(1) specifies the bodies authorised to bring disciplinary proceedings against judges, in particular: (1) the Commission for Ethics and Disciplinary Matters; (2) the competent body [Ministry of Justice]; and (3)   the CPC. 42 .     Section 146(1) provides that reasons for bringing disciplinary proceedings against a judge include, inter alia , (4) detection by the competent body of an act containing prima facie elements of a disciplinary violation following examination of a judgment rendered by the European Court of Human Rights. 43.     Section 147(5) provides that, having examined the matter, the body that brought disciplinary proceedings either takes a decision to terminate the proceedings or submits an application to the SJC to determine the judge’s disciplinary liability. 44.     Under section 149(1) the SJC, having determined a judge’s disciplinary liability, may impose one of the following disciplinary measures: (1) a warning; (2) a reprimand; (3) a strict reprimand; (3.1) ban on inclusion in the list of promotions for a period of one year; (3.2) dismissal from the post of chair of the court or chair of a chamber of the Court of Cassation; or (4)   termination of his or her term of office on account of a fundamental disciplinary violation. 45 .     Section 151(1) provides that the examination of the issue of a judge’s disciplinary liability starts with the reporting by the body which had instituted disciplinary proceedings before the SJC. Section 151(3) provides that after reporting by the above-mentioned body, the SJC hears the judge against whom the disciplinary proceedings have been instituted or his/her representative. The members of the SJC and the representative of the body having instituted the proceedings may address questions to the judge to which the latter may answer or refuse to answer. After hearing the judge or his/her representative, the SJC proceeds with the examination of materials of the case. Section 151(4) provides that, having determined the scope of the facts relevant to the case, the SJC may: (1) upon the motion of the judge, the body having instituted disciplinary proceedings or upon its own initiative, require from the judge, the body having instituted disciplinary proceedings, State and local self-government bodies (their officials), as well as natural persons and legal entities, the submission of evidence relevant for the examination of the issue and falling within the scope of influence of those persons, setting a time ‑ limit for submitting it to the SJC; (2) upon the motion of the judge, the body having instituted disciplinary proceedings or upon its own initiative, summon witnesses; (3) upon the motion of the judge, the body that had instituted disciplinary proceedings or upon its own initiative, order an expert report in order to clarify the issues relevant for the examination of the case before it. Section 151(9) provides that, having examined the materials of the case, the SJC hears the closing arguments of the participants in the session, whereafter the examination of the case is declared closed. At the end of the proceedings, the chair of the session announces the date, place and time of the delivery of the decision. Section 151(10) provides that, at the end of the proceedings, the SJC retires to take a decision. 46 .     Section 153(1) provides that in disciplinary proceedings, a judge has the right to: (1) acquaint himself/herself with the case material, make extracts and receive copies thereof; (2) put questions to the speakers, file objections, give explanations and file applications; (3) submit evidence and participate in the examination thereof; (4) participate in the hearing acting in person, or through a representative; and (5) receive reimbursement for legal costs if his or her disciplinary liability has not been established. Section 153 (2) provides that when examining the matter of imposing disciplinary measures on a judge by the SJC, the judge must be afforded the safeguards enshrined in Articles   61 and 63 of the Constitution. 47 .     Section 155(1) and (4) lays down a set of requirements that a decision of the SJC when acting as a court should satisfy: it should have a preamble, facts and reasoning and an operative part. Section 155(3) provides, in particular, that the facts and reasoning should include: the essential circumstances pertinent to the case; the position of the body that initiated the proceedings; the explanations and position of the judge concerned; the explanation and testimony of individuals summoned by the SJC; the SJC’s conclusions about the disciplinary violation and attributes of the judge’s personality. The decision should also set out the evidence relied upon, arguments regarding the reliability of certain evidence, the legal norms guiding the SJC’s decision, and its reasons regarding the positions of the parties involved. Section 155(7) provides that a decision establishing a judge’s disciplinary liability takes effect from the moment of its pronouncement. 48 .     Section 156.1(1) provides that the SJC examines, inter alia , appeals against a decision to establish a judge’s disciplinary liability if there is evidence or a circumstance which the appealing party did not submit beforehand for objective reasons and which could have reasonably affected the outcome of the proceedings. 49 .     Section 157 provides for a possibility of reopening the proceedings before the SJC in the event of new or newly discovered circumstances. 50 .     Section 157(3)(2) provides that new circumstances are grounds for reconsidering a decision regarding the disciplinary liability of a judge by the SJC, if a judicial act of an international court with the participation of the Republic of Armenia, which has entered into force, has established a violation of the judge’s right ensured by an international treaty. Section 157(4) provides that an application to reopen the proceedings based on, inter alia , new circumstances, may be submitted within three months from the date when the grounds specified in section   157(3)(2) become known, but no later than twenty years after the decision of the SJC entered into force. 51 .     Sections 159(2) and 160(1) contain provisions similar to Article 164 §§ 8 and 9 of the Constitution. Act no. HO-335-N to amend the Constitutional Act on the Judicial Code 52 .     In November 2023 the Judicial Code was amended, introducing a possibility of appeal within the SJC in disciplinary proceedings against judges. In particular, according to the amendments, the SJC was to have a “first-instance” panel, composed of its four members, determining the disciplinary liability of judges and a second-instance panel examining appeals against the decisions rendered by the former. According to the relevant transitional provisions of Act no. HO-335-N, the amendments would become effective upon enactment by the SJC of a secondary legal act establishing the formation of the “first-instance” panel of the SJC, but apparently that act has not been forthcoming to date. The transitional provisions further provided that the regulations in effect prior to the entry into force of the amendments in question would apply to disciplinary proceedings initiated before the entry into force of the amendments, including completed disciplinary proceedings and any decisions made as a result of those proceedings. Constitutional Act on Rules of Procedure of the National Assembly (“the Rules of Procedure”, 2017; as in force at the material time) 53 .       Section 135 provides that issues on election or appointment to a post are debated at a sitting of the National Assembly in accordance with the following general procedure: “... (1) up to ten-minute speeches shall be delivered by persons who have the power to present the candidates – in accordance with the alphabetical sequence of the names of candidates; (2) up to twenty-minute speeches shall be delivered by candidates; (3) the person presenting the candidate and the candidate shall take the floor in sequence; (4) after the speech, the person presenting the candidate and the candidate may be asked questions; (5) exchange of opinions; (6) with concluding speeches up to ten minutes, the candidates shall take the floor in the same sequence. 3. Unless otherwise envisaged by the Rules of Procedure, the issues of election or appointment shall be subject to mandatory debate at the forthcoming regular sittings of the National Assembly or may be debated at extraordinary sessions or sittings of the National Assembly in the following cases: (1) after the expiry of the deadline for the nomination of candidates, if two or more bodies are eligible to nominate a candidate for an appropriate office and at least one candidate has been nominated; (2) after the nomination of a candidate, if one body is eligible to nominate a candidate for an appropriate position. 4. The person elected by the National Assembly in