CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 mars 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .sB817FEEB { margin-top:0pt; margin-bottom:12pt; text-indent:21.3pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s45423C9C { margin-top:0pt; margin-bottom:0pt; text-indent:42.55pt; text-align:justify } .sA9D90387 { width:76.3%; margin-left:43.45pt; border-collapse:collapse } .sBE1D6212 { width:10.18%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s2065977B { width:33.12%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s1A958C03 { width:35.72%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sD8C0DB99 { width:20.98%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s80759B57 { width:10.18%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s47FA7D77 { width:33.12%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sD7FD71F0 { width:35.72%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s3671B59B { width:20.98%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } Published on 31 March 2025   FIFTH SECTION Application no. 26289/23 Astghik KHARATYAN and Others against Armenia lodged on 19 October 2023 communicated on 10 March 2025 SUBJECT MATTER OF THE CASE The application concerns the applicants’ premature dismissal from the post of judge. At the material time, the first applicant was a judge of the Civil Court of Appeal, while the second and third applicants were judges of the Civil and Administrative Chamber of the Court of Cassation. They were entitled under the law to serve until their retirement at the age of 65. The Court delivered a judgment in the case of Scholz AG v. Armenia ([CTE], no. 16528/10, §§ 60-67, 24 January 2019) finding a violation of Article 6 § 1 of the Convention (right of access to court). The applicants sat on the adjudicating panels of the Court of Appeal and Court of Cassation, respectively, in the examination of a civil claim brought by Scholz AG. In 2020 the Constitutional Act on the Judicial Code (“the Judicial Code”) was amended and supplemented with section 146(1)(4), which provided for a possibility to bring disciplinary proceedings against a judge upon detection of an act containing prima facie elements of a disciplinary violation, following examination of a judgment rendered by an international tribunal (including the Court). According to a transitional provision, such disciplinary proceedings could be initiated against a judge with regard to a judicial act of an international court delivered after the entry into force of the amendment in question (that is, section 146(1)(4)). However, this was amended in 2022, and, under section 144(1)(1), it became possible to initiate disciplinary proceedings against a judge with regard to the Court’s judgments delivered before the entry into force of section 146(1)(4) unless fifteen years had elapsed since the Court’s judgment’s entry into force. Disciplinary proceedings initiated under section 146(1)(4) with regard to Court’s judgments pre-dating the new amendments could lead to a dismissal of a judge (for having committed a gross disciplinary violation) if the breach was clearly related to matters concerning the independence and impartiality of the judiciary, maintaining the high authority of the judiciary, public confidence in the independence and impartiality of the judiciary, and the public interest in ensuring the rule of law [1] . In 2022 K.A. – who previously held the post of Minister of Justice – was elected as a non-judicial member of the Supreme Judicial Council (“the SJC”; an authority with exclusive competence to decide on disciplinary measures against judges) for a five-year term, while his deputy G.M. took up the post of Minister of Justice. Shortly thereafter K.A. became the Chair of the SJC. On 27 March 2023 the then Minister of Justice G.M., relying on section   146(1)(4) of the Judicial Code and the findings of the Court in the above-noted Scholz AG judgment, decided to initiate disciplinary proceedings against the applicants and Judge T. who dismissed the civil claim of Scholz   AG in the first instance. According to G.M.’s decision, the applicants and Judge T. breached the relevant domestic and Convention provisions by refusing to examine the merits of the case and thus limited the right of access to a court of Scholz AG. On 24 May 2023 G.M.’s deputy applied to the SJC to determine the applicants’ and Judge T.’s disciplinary liability. The applicants sought the recusal of Chair K.A. relying on his commercial (K.A.’s wife and G.M. were shareholders in a local law firm), personal (K.A. and G.M. were friends and allegedly political allies), and professional ties with G.M. (they were former colleagues). The applicants also referred to ex   parte communication (at a restaurant) between K.A., G.M. and another member of the SJC panel, namely H.G., while their recusal request against K.A. was pending before the SJC. On 3 July 2023 the SJC allowed G.M.’s application and decided to terminate the applicants’ term of office on account of a fundamental disciplinary violation. One of the SJC members dissented. At the same time, the SJC terminated the disciplinary proceedings in respect of Judge T. as he had resigned prior to the decision of the SJC. In addition, the SJC dismissed the applicants’ applications seeking the withdrawal of K.A. In particular, the SJC referred to its previous decision in another case in which it had found that the existence of commercial ties between K.A.’s wife and G.M. alone had not been sufficient to conclude that K.A. was biased (see, for a description of those events, Suren Antonyan v. Armenia , no. 20140/23, § 18, 23   January 2025 [not yet final]). The SJC emphasised that the power to initiate disciplinary proceedings was conferred on the Minister of Justice by law and was aimed at serving the public interest. It concluded that there could be no conflict of interest because of the personal ties between the Minster and K.A. as they were simply discharging their official duties. As to the ex parte meeting, the SJC held that in order to ensure the normal operation of the SJC, Chair K.A and “a member of the SJC” (without specifying who) could take part in discussions, otherwise the functioning of the SJC would be paralysed. The impugned decision was final and not amenable to appeal before the ordinary courts. Following the second and third applicants’ dismissal, vacancies were opened for the post of judge at the Court of Cassation. Two members of the SJC sitting on the applicants’ case, namely N.H. and V.K. applied for the vacant posts and were appointed as judges of the Court of Cassation. Following his resignation, former Judge T. applied to and was included in the lists of promotion (for the Court of Appeal). On the recommendation of the SJC, he was re-appointed to the Insolvency Court. On 18 November 2024 Chair K.A. resigned. On 22 November 2024 the Prime Minister of Armenia gave an interview, during which he admitted that he had requested that K.A. resign. It could be understood from the P.M.’s interview that the reason for his request was the society’s perception that judiciary lacked independence and that the ruling political force bore responsibility for that fact. In an interview, K.A. admitted to having received an SMS from the P.M. to step down. The applicants complain that the SJC lacked independence since its non ‑ judicial members are appointed by the National Assembly where the ruling political party holds absolute majority. The applicants argue that K.A.’s resignation came to prove their claim that the SJC in general and K.A. in particular lacked independence from the executive branch. They also complain that they did not have a fair hearing, as required under 6 § 1 of the Convention, because the SJC panel sitting on their case was not impartial given (i) the commercial, personal and professional ties between K.A. and G.M and their ex parte meeting, together with H.G., while the applicants’ case was pending before the SJC, (ii) the failure of the SJC to properly address their recusal applications, as well as the fact that K.A. allegedly participated in the examination of those applications, and (iii) the alleged lack of impartiality in respect of N.H. and V.K., who voted in favour of dismissing the applicants and later applied and were appointed to the second and third applicants’ former posts at the Court of Cassation. The applicants further complain that they had no access to a court satisfying the requirements of Article 6 § 1 to contest their dismissal. Relying on Articles 6 § 1 and 7 of the Convention, the applicants complain that the very long limitation period under section 144(1)(1) of the Judicial Code, which allowed to bring disciplinary proceedings against them with respect to acts committed in the distant past, was in breach of legal certainty and thus fairness of the proceedings. Invoking the same Articles, the applicants essentially complain about the lawfulness and necessity of their dismissal under Article 8. Specifically, the applicants argue (a) that neither in 2009, when the domestic proceedings in the case of Scholz AG were completed, nor in 2019 when the Court delivered its judgment in the case of Scholz AG, it could have been foreseeable to them that they would be subject to a disciplinary liability for a finding of a violation by the Court; (b) that section 146(1)(4) was applied to them retroactively and to their detriment despite the prohibition of retroactive application of law under the Constitution (Article 73 thereof); (c) that they were essentially punished for decisions they took as a judge (however, under section 142(9) of the Judicial Code, a judge could not be held liable solely for their assessment of facts and evidence or interpretation of law); and (d) that the SJC failed to provide proper reasons for its decision to dismiss them, including to determine the applicants’ individual liability for a collegial decision. The applicants further complain that (e) the alleged lack of procedural fairness during the proceedings before the SJC and (f) the alleged failure of the SJC to substantiate the proportionality of their dismissal in relation to the imputed disciplinary violation, were in breach of their right to respect for private life under Article 8. Lastly, the applicants complain that they fell victim to a discriminatory treatment in breach of Article 14 in conjunction with Article 8 of the Convention. Specifically, even though the applicants and Judge T. committed the same disciplinary violation, which resulted in the applicants’ dismissal, Judge T., was later re-admitted to his judicial post upon the recommendation of the SJC. QUESTIONS TO THE PARTIES 1. Did the applicants   have access to a court satisfying the requirements of Article 6 § 1?   2. In the light of the applicants’ complaints concerning lack of impartiality of the SJC in general and of the panel sitting on their case, has there been a breach of Article 6 § 1 of the Convention?   3.     Has there been a violation of Article 6 § 1 of the Convention in that the SJC decided, allegedly arbitrarily, to subject the applicants to disciplinary liability by retroactive application of the law (see, for instance, Oleksandr   Volkov v. Ukraine , no. 21722/11, §§ 137-40, ECHR 2013) and failed to give adequate reasons?   4.     Has there been a violation of the applicants’ right to respect for their private life, contrary to Article 8 of the Convention as a result of their dismissal (see the applicants’ complaints under Article 8 summarised in points (a) to (f) above)? In particular, was the applicants’ dismissal prescribed by law? Was it necessary and proportionate to the legitimate aim pursued?   5. Have the applicants suffered discrimination in the enjoyment of their Convention rights under Article 8, contrary to Article 14 of the Convention? In particular, have the applicants been subjected to a difference in treatment in comparison to Judge T.? If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?       APPENDIX Application no. 26289/23 No. Applicant’s Name Year of birth/registration Place of residence 1. Astghik KHARATYAN 1967 Yerevan 2. Artak BARSEGHYAN 1967 Vedi 3. Tigran PETROSYAN 1964 Yerevan   [1] The European Commission for Democracy Through Law (Venice Commission) and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe issued a joint opinion, relevant for these amendments (CDL-AD(2022)002).