Strasbourg , 21 July 2005 Opinion no. 313/ 2004	CDL(2005) 054 Engl. only

                                                             

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

( VENICE COMMISSION)

draft FINAL opinion

on the constitutional reform

in the republic of armenia

on the constitutional reform

in the republic of armenia

On the basis of comments by

Mr Vlad CONSTANTINESCO ( Expert , France )

Mr Aivar ENDZINS ( Member , Latvia )

Mr Kaarlo TUORI ( Member , Finland )

I.                    Introduction

1 . In June 2005, the Commission adopted its second interim opinion on constitutional reforms in Armenia (CDL-AD(2005)016). It concluded that the proposed constitutional amendments, as adopted in their first reading, required important amendments in the areas of the separation of powers, the independence of the judiciary and the manner of appointment of the Mayor of Yerevan .

2 .  As previously agreed, on 17 June 2005 the Armenian authorities submitted revised constitutional amendments  to the Commission’s working group.

3 .  On 23-24 June 2005, a meeting was held in Strasbourg, at which representatives of the Armenian authorities and of the civil society and the Commission working group, composed of Messers Enzins, Tuori and Vlad Costantinesco, discussed these revised amendments with a view to improving them. As a result of this meeting, certain principles which were to guide the further constitutional works were agreed upon (CDL(2005)052).

4 .  On 7 July 2005 , the Armenian authorities submitted a further revised version of the constitutional amendments (CDL(2005)058).

5 .  The present opinion, prepared by the working group and setting out an assessment of this latest version of the constitutional amendments, was sent to the Armenian authorities on 21 July 2005 . It was subsequently endorsed by the Commission at its … plenary Session (…).

II.                Analysis of the revised draft constitutional amendments adopted in the first reading

A.                 Preliminary remarks

6 .  The present comments only relate to the aspects which were specifically discussed at the meeting of 23-24 June 2005, and which were summarised in document CDL(2005)052.   In elaborating them, the working group has aimed at achieving solutions allowing for the workability of the democratic institutions of Armenia . 

7 .  Other aspects of the Constitution, which have not been addressed by the Commission in this opinion but in previous ones[1] , may well deserve discussion among the Armenian authorities, the opposition forces and the civil society. Indeed, the Commission thinks that it is crucial that the discussion of the final text be publicly pursued in an open and transparent manner in Armenia .

B.                 Human Rights

Ombudsperson

8 .  The constitutional foundation of the institution of the Ombudsperson represents an important step towards ensuring an effective protection of human rights and freedoms in Armenia .

9 .  It is now expressly foreseen that the ombudsperson shall be elected by a majority of 3/5 of the deputies, as currently provided in the Law of the Republic of Armenia on the Human Rights Defender. The principle of irrevocability of the Ombudsperson has also been explicitly stated.

Freedom, independence and plurality of the media

10 .  The proposed Constitution (Article 83.2) now sets out the manner of appointment of the members of “the independent body”.

11 .  The members of the National Commission on Radio and TV are no more appointed by the President under the general clause of Article 55.5, but are appointed, for 6 years, as follows:

- ½ by the National Assembly with the exclusion of members of political parties, and

- ½ by the President.

12 .  The Commission welcomes this solution, which constitutes an undoubted step forward towards the independence of the NCRT.  The Commission recalls the need, for both the National Assembly and the President, to follow a transparent and merit-based procedure of selection of candidates. 

13 .  The Commission also wishes to refer to the need for the members of the boards of management of public service broadcasting organisations to be appointed so as to avoid the risk of “any political or other interference”.[2] In this respect, the appointment by the President of the Republic of all the members of the Council of the Public TV and Radio has been seen as problematic, and the need for the appointment process, if this power of the President is to be retained, to be open and transparent and not open to political abuse, has been underlined[3] .

14 .  The Commission underlines the importance of regulating this matter in accordance with the applicable European standards. It recommends therefore that the relevant legislation be brought   in compliance thereof with the assistance of the Council of Europe.

C.                 Separation of powers

Presidential immunity

15 .  With respect to the presidential immunity, the Commission notes with approval that the revised Article 56.1 § 2 fully reflects both the principle of the President’s non-liability in respect of the acts arising from his or her presidential duties during and after the mandate, and the immunity from prosecution, during the mandate, for acts not arising from his or her presidential duties.

Extraordinary sittings and sessions of the NA

16 .  The Commission notes with approval that the revised Article 70 on extraordinary sessions and sittings now clearly stipulates that it is the Chairman of the National Assembly who will convene a parliamentary session or sitting upon the initiative of the President of the Republic, or of at least 1/3 of the deputies or of the Government.

Formation of government.

17 .  The Commission welcomes the revised provisions on the formation of government, which now provide guarantees for the indispensable balance in the relations between the main constitutional organs in Armenia .

18 .  Pursuant to the new Article 55 § 4, the President of the Republic will appoint as Prime Minister the person who enjoys the confidence of the majority of the deputies. He or she can now only be dismissed by the National Assembly through a vote of non-confidence. On the other hand, as a compromise solution, the President has the right to present to the National Assembly a motion of non-confidence in the Government (new Article 84 §2).

19 .  At the meeting of 23-24 June, the possibility of introducing a constructive vote of non-confidence was discussed. The members of the Commission’s working group considered that such mechanism generally contributes to the stability of the government and that, as such, it might be useful.

20 .  With regard to the President’s power to dissolve the National Assembly for “technical” reasons, the revised Article 74.1 § 2 now rightly provides for the involvement of the Chairman of the National Assembly or the Prime Minister.

21 .  As regards the composition of the government, in the Commission’s opinion it should be fixed by law.

Foreign policy

22 .  The new Article 85 now correctly stipulates that the Government shall “determine and implement” the foreign policy of Armenia jointly with the President of the Republic. In fact, Article 55 on the competences of the President of the Republic should more accurately provide that the President “determines and implements the foreign policy jointly with the Government” rather than “executes the general guidance” of it.

Sittings of the government

23 .  The Commission notes with satisfaction that the new Article 86 § 2 expressly states that the President may convene and chair sittings of the government in connection with foreign policy, defence and state security issues only.

D.                Independence of the Judiciary

Prosecutor General

24 .  In accordance with the revised Article 55 § 9, the appointment and dismissal of the deputies of the Prosecutor General will be done upon the recommendation by the Prosecutor General.

Appointment and dismissal of judges

25 .  At the meeting of 23-24 June, it had been agreed that the President of the Republic can only appoint or dismiss someone upon a recommendation or conclusion of the Judicial Council to this effect. This important principle needs to be clearly reflected in Article 55 § 11.

26 .  It should be clearly stipulated, in an additional point of paragraph 11, that the President shall, upon the recommendation or conclusion of the Council of Justice, “ promote judges who are candidates for professional advancement”.

27 .  The Commission underlines the importance of regulating this matter in accordance with the applicable European standards. It recommends therefore that the relevant law be prepared with the assistance of the Council of Europe.

Judicial Council

28 .  The Commission notes with approval that the new Article 94.1 § 3 expressly states that the   sittings of the Judicial Council will be chaired by the Chairman of the

Cassation Court

without a right to vote.

E.                 Local self-government

29 .  The changes made in Chapter 7 on Local self-government meet the recommendations made by the Commission in its previous opinions. Thus, the principle that Yerevan is a community, hence a local self-government unit, is expressly stated. The new Article 108 affirms the principle that the Yerevan Mayor must be elected; though the law may provide for an indirect election , which is legitimate under the European Charter on Local Self-Government. Detailed provisions on the formation of the local self-government bodies and their functioning in the City of Yerevan will be specified by law.

F.                  Amendments to the Constitution

30 .  Pursuant to the revised Article 113, in order  for the referendum on the constitutional reform to be considered valid, ¼ (instead of previously 1/3) of registered voters must effectively express their vote. In the Commission’s view, this simplification is to be welcomed.

G.                Transitional provisions

31 .  The Commission notes with approval that most provisions of the Constitution will enter into force immediately or as soon as possible.

III.             Conclusions

32 .  The revised draft constitutional amendments represent an undoubted improvement as compared to earlier drafts commented upon by the Venice Commission. In the opinion of the Commission, their adoption in the second reading and subsequently a successful constitutional referendum on the basis of this text would constitute a good basis for ensuring the compliance of the Armenian Constitution with the European standards in the fields of respect for human rights, democracy and the rule of law, and would pave the way to further European integration. The Commission acknowledges the efforts and the good will of the Armenian authorities.

33 .  It is certainly important that the discussions of the final text be pursued in an open and transparent manner with the opposition forces and the civil society in Armenia . The broadest political consensus must be found.

34 .  The next main challenge will be to organise an appropriate referendum campaign leading to the adoption of the new Constitution for Armenia . The Commission encourages the Armenian authorities to do their utmost to ensure the success of the constitutional reform in November 2005. The reform must be presented in due time and form to the Armenian people. To this end, it is crucial that the referendum campaign be fairly, adequately and extensively broadcast by the media.

35 .  The Commission wishes to underline that the success of this process of constitutional reforms depends on and is the mirror of the maturity of the Armenian political class. Not only the majority, but also the opposition must prove their capability of compromising in order to achieve a workable political environment, which only can lead to democracy in Armenia .

36 .  Indeed, a good Constitution is certainly the first crucial step towards democracy. It is not sufficient though. The Armenian authorities will have to build a political and social context allowing for an effective realisation of the newly established system of government. The Commission stands ready to assist them in this crucial task.