Ministry of Justice reaffirms mandatory vetting agenda  

The Ministry of Justice has reaffirmed the government-announced plan to conduct a mandatory vetting of officials. It has elaborated on the proposed legislative reforms in the question-and-answer format provided below:

The government has announced a plan to conduct a vetting of high-ranking officials. What steps have been initiated to that effect, and what agency will exercise responsibility for the function?

The concept of "vetting", which has gained wide usage in our society, is constitutionally reflected in the draft legal package proposing amendments to the Judiciary Code - a constitutional law in essence - and the adjacent by-laws adopted  by the National Assembly and pending the president's signature.

For candidates aspiring to hold certain offices, it is described in an analysis of a good conduct monitoring; as for functionaries currently in office - including judges - it is available in the declaration analysis or, in other words, the property status check mechanism.

The Corruption Prevention Commission is vested with the authority to monitor, and check, the code of good conduct and property status. Under terms and procedures prescribed by the law, the Commission conducts a monitoring of candidates [aspiring to be] members of the Supreme Judicial Council (SJC), judges of the Constitutional Court [CC], and individuals potentially appointed to government officies pursuant to the Republic of Armenia law "On Public Service". Also in other cases prescribed by the law, it conducts studies into the code of good conduct and submits advisory conclusions based on the available results. Though the commission's conclusion is advisory in nature, it may preclude the chances of appointing candidates to a specific post.

Does the monitoring of good conduct apply only to candidates without implying any reference to acting judges?

As much as acting judges, members of the Supreme Judicial Council and judges of the Constitutional Court are concerned, we have a legal package establishing the Commission's authority to check the declarations. And that, by the way, applies also to the declarations submitted in the past couple of years.

That is to say, the Commission will check the subjects' property status through a detailed analysis and data combination. Notably, the expanded set of tools, envisaged under the legislative package, may be applied by the Corruption Prevention Commission in the analysis of the declarations submitted after July 1, 2017. As for the earlier declarations, they are subject to analysis in line with currently effective legal regulations. Upon observing violations in the process of analysis, the Commission is required to undertake the necessary action, reporting, among other things, the law enforcement agencies on the possibility of criminal infringements. The latter action - provided there are reasonable doubts as to a possible criminal infringement - must be carried out at any moment during the declaration analysis (regardless of the date).

It is worth to also mention that after the entry into effect of the draft package of legislative regulations, any essential violation of the declaration provisions by that group of individuals (as opposed to those holding other offices) may entail also disciplinary measures, serving as grounds for terminating their authority.   

Also the procedure of subjecting judges to disciplinary measures has now essentially improved, with the Corruption Prevention Commission having joined the agencies authorized to initiate proceeding upon observing problems in the property, income and interest declarations. Moreover, there are plans to replace this commission, composed only of judges, with an ethics and disciplinary commission to involve also highly professional jurists proposed by NGOs.

Additionally, the evaluation of judges' activity has been thoroughly regulated. Instead of the SJC, that function has been vested in a newly emerging commission which will be composed of judges and jurist scholars. If, in the course of its evaluation activities, the commission observes a disciplinary breach, it may turn to the Ethics and Disciplinary Commission to request a proceeding.  

What are the proposed mechanisms of monitoring candidates' [compliance with the code of] good conduct?

The following mechanism will apply to judges: in addition to other documents, those people will be required to submit a good conduct questionnaire approved by the Corruption Prevention Commission. It will include data on the person's property status, education, professional activity, and records on previous criminal, administrative and disciplinary liability. The Commission will then compile and submit its advisory conclusion based on a combination of databases, inquiries to the competent authorities and a study of reports - available in both the media and the social networks.

As for acting officials, we have already stated that the Commission is required to check, within legally assigned timeframes (after the effective date of the legislative package), all the declarations submitted by CC judges, SJC members and all the [rest of] judges. While in the case candidates the Commission itself is required to issue an advisory opinion based on a monitoring of good conduct (to later submit it to the agency appropriately authorized to appoint the candidate in question), the infringements coming to light as a result of this kind of targeted and systemic monitoring of the property status must be submitted to the criminal prosecution bodies and, in case of administrative-legal infringements, also an administrative proceeding must be launched provided those infringements were disclosed within timeframes prescribed by the law. This, by definition, increases the chances of identifying infringements.

It is worth emphasizing, yet another time, that the legislative package establishes new grounds for filing a disciplinary lawsuit dealing with violations of declaration requirements (that may serve as grounds for initiating administrative proceedings after the effective date of the law). That tool is going to serve as an important vetting component to allow for the termination of acting judges' authority in case of possible infringements.

And what set of tools does the Corruption Prevention Commission possess to exercises its authority?  

The Corruption Prevention Commission is entitled to require and obtain certain records and documents dealing with the applicant and his or her family member(s). Exceptions apply to cases prescribed by the law of the Republic of Armenia "On Banking Secret".

As for the legislative package adopted by the National Assembly, the Commission will be authorized, after the entry into effect of the regulations prescribed thereunder, to require and obtain - through an inquiry to the Central Bank of Armenia - records containing a banking and insurance secret, credit records, etc. Meantime, the Commission will have an opportunity to exercise the above function in the process of the good conduct monitoring (which now has a legislatively established clear procedure). The commission is also vested with the equally important function to resolve corruption crimes dealing particularly with the illegal enrichment of officials and their family members. In that sense, the Corruption Prevention Commission, as a legal successor of the Ethics Commission of High-Ranking Individuals, is entitled to analyze any declaration, applying the set of tools (established under the legislative package) to the declarations adopted after July 2017 (the entry into effect of the articles establishing criminal accountability for the violation of declaration norms, and criminalizing illegal enrichment).

Hence, should the commission conclude - based on an analysis of any declaration submitted after July 1, 2017 - that the act committed contains elements amounting to a crime of corruption, it must immediately submit the materials to the Prosecutor General's Office. The further course of action - and the issues that still need to be proven - are in the law enforcement authorities' domain, but the main signal has to go from the Commission itself.

The Commission, as already stated, is entitled to also analyze earlier declarations - submitted before July 1, 2017 - the only difference being the fact that the additional tools envisaged under the legislative package, as well as the articles of the Criminal Code effective after July 1 2017, will not be applicable in the course of their analysis. This, however, does not rule out the possibility of doubts as to criminal and legal infringements (in the analysis of equipotent declarations), as well as blatant non-compliance with declarations submitted after 2017 - under which conditions the Commission is required (likewise any other government agency) to apply to the law enforcement authorities.

Last but not least, reference should be made also to another tool that the Commission received under the above package. If, after a declaration analysis, doubts still remain that an essential change in the property  (declared either by the official in question or his or her family member) is not reasonably justifiable through legal income or the latter possesses undeclared or not fully declared property, or the source of income is not legitimate or credible, the Commission is entitled to demand that the person maintaining a close or family relationship with the applicant or acting as a party to the transaction declared (or subject to declaration) or entitled to possess, under the right to ownership, the immovable property, means of transport or any other property which, under the law "On Public Service", may be defined as expensive, submit a situational declaration dealing with the property and income assets in question. This institute is aimed at eliminating the one-time flawed practice of registering property in a third person's name and raising the practical efficiency of checking declarations.