Expert's Report

On documentary bases of interrelation of “Healthy Hrazdan” Civic Initiative and relevant authorities, competent in relation with Hrazdan iron mine

            Complex analysis of the presented documents shows, that in the result of extensive and consistent  work the legal possibilities, prescribed by the current legislation, especially by the RA laws "On Foundations of Administration and Administrative Proceeding"; "On local self-government"; "On freedom of information"; "On legal acts" and a number of sub legislative acts were not used as needed. In addition, in certain cases in terms of administration the legislation requirements were bypassed also by public authorities, but the organization applied to them did not respond adequately. The analysis leads to the conclusion that bypassing of legislation provisions was often possible in the result of not fully using the legal possibilities, provided by the legislation by the organization applied to the public authorities. 

Below a reference was made to the documents submitted for expertise and the legal bases in relation to them, as well as a number of considerations, which may play a role of methodological guideline, was presented.

The adopted legal acts, actions and inactions of the state government authorities, including the administrative bodies, competent in the field of ecology may be contested by the administrative order (extrajudicially) or in the courts according to the current legislation, especially the RA law "On Foundations of Administration and Administrative Proceeding" (hereinafter: Law) and the RA Administrative Procedure Code.

A special procedure of contestation is set up for administrative acts: they are called: "… a decision, executive order, order or other individual legal act, having an external effect that administrative body adopted for the purpose of settlement of a certain matter in the field of public law, and is directed to the prescription, amendment, elimination or recognition of rights and obligations for persons" (part 1 of article 53 of the Law).

The study of correspondence of "Healthy Hrazdan" organization shows, that in some cases the mentioned organization has contested the legal act or action of the competent state authority, however, the competent administrative bodies, bypassing the Law requirements, just have answered to the organization, bringing some arguments.

In other words, the administrative body has tried to take up the applications about contestation as a requirement for submission of information or explanatory statement, whereas, the organization, which is the author of the application has included specific requirements on recognition of the legal acts as unlawful or implementation of lawful actions and accompanied them by relevant factual and legal grounds. If the administrative body did not agree with those grounds, it was obliged to make an appropriate administrative act, which could have been contested by the order of superiority or through legal proceedings. In this case, by sending only the answers, the administrative body tried to avoid the fulfillment of making an administrative act and at the same time to refrain from the process of legal acts or acts of omission, made by it.

So, on November 10 of 2013, the mentioned organization applied to the Minister of Energy and Natural Resources of the RA, pointing out that their previous applications have not been answered adequately and exhaustively. In particular, in that application contested the fact that the license ՀԱ-Լ-14/453 could not have been re-executed into permit № ՇԱԹՎ 29/169 for extraction of minerals, etc. In response to that, the minister brought a number of grounds, by which he attempted to state that the made administrative acts are lawful. In this case, the organization should have not been satisfied with such a suggestion that if their demands were not met, they would have turned to another body: “Otherwise our civic initiative group will have to turn to the RA Government for complex study of whole document circulation, carried out between “Nagin” LLC and then “Fortune Resources” LLC and the RA ministers of Ecology and Energy and Natural recourses and for stopping the process for national security reasons”.

In this case, first, it is necessary to note that while sending letters to public authorities and their officials, it is necessary to make references to not only the norms of substantive law, but also to the norms regulating the procedure. Without such references, it is not clear what is expected by that application. Provided that, the application content should fully comply with provisions of those legal norms, on which in that same application references are made. Thus, if the requirement relates not to the information on the action to be done, (for example: previously granted license is required to be revoked), but to already available information, it is necessary to refer not to the RA law "On freedom of information", but to the RA law "On Foundations of Administration and Administrative Proceeding" (in particular, point "a" of part 1 of article 30).

If references are not made to specific legislative acts, the letter is perceived as an application anticipating a clarification, but in this case the administration rules are violated too. Moreover, if the applicant allows formal mistakes (for example, the application is related to rendering a legal act ineffective, but an application on presentation of information about rendering a legal act ineffective was formulated, making a reference to the article 9 of RA law "On information"), the administrative body should not have to pass only to giving explanations of general character, but being guided by the article 32 of the RA law "On Foundations of Administration and Administrative Proceeding", is obliged to point them out to the applicant, giving him a chance to correct that mistakes, or he corrects them preliminary or further noting the applicant about that.

Practically, it turns out that instead of fulfillment of commitment with regard to correcting mistakes, the administrative bodies give preference to initiating a “debate” on arguments raised in the applications, which gives no opportunity to have more practical and tangible results. Ultimately, the arguments of the administrative body may be highly controversial; however only in the frames of the "debate" they do not generate any legal consequences.

To contest legal acts, actions or inactions of administrative bodies and their acting officials it is necessary to be guided by Articles 69-74 included in Paragraph 10 titled “Grounds and order of bringing an administrative appeal” of the RA Law "On Foundations of Administration and Administrative Proceeding".

Summarizing situations reflected in specific documents, a few methodological considerations are represented below, which may be useful for above mentioned and mutual spheres in the context of interrelation with administrative bodies. Particularly, in the case of appeal it is worth to consider the following legal terms:

1. The administrative act may be appealed only by the persons pursuing the goal of protecting their rights. In the given case it is worth to consider that the available official position on the RA law “On Public organizations” is such that the latters cannot act with the protection of rights of others. So before the adoption of a new law in the result of legislative amendments, proceeding from a specific pursued goal, it is necessary to build interrelations with administrative bodies based on the RA law “On Freedom of Information” or support physical or legal entities injured at the result of legal acts, actions or inactions of administrative bodies, in the matter of contestation.

2. Even not performing the reasonable demand of receiving information causes an administrative responsibility which may be undertaken by physical or legal entity, who has presented a request of receiving information. Moreover, the burden of evidence of the lawfulness of deed is put on the administrative body. So, according to the paragraph 2 of Article 216 of the Administrative Procedure Code of the RA, “State or local self-government body (acting official), who has performed an action, which served as a basis for statement of claim of physical or legal entity on subjecting to administrative responsibility or has not performed any claimed action, but according to the claimant he had to perform it, bears the burden of evidence of actual circumstances, served as basis of his decision, action or inaction”.

In this case it is notable that the term “action” has a wide sense from the legal view (it is caught by narrow sense only in life, as an “active step”), it is the equivalent of the term “illegal action”, which is shown as a certain action so accepting groundless administrative act or performing law-governed actions, including abstaining from accepting law-governed legal acts.

3. The applications relating to getting information must be formed so, that it is clear that the legal subject requiring for the information is informed of questions of law-governed administration, and the information is necessary to undertake accordant means, including natural process of litigating in administrative or judicial order.

In this case it is prospective to consider following important question: Legislation on information establishes a scope of information, which is subjected to publication, irrespective of the circumstance whether it will be required by any legal subject or no. So before turning out the scope of required information, it is necessary to turn out the following question, if that information should had been published but it was not, it must be provided for free and the matter of violating the law may be arisen, and if it is required such an information which is not subjected to the compulsory publication, it may be provided if it does not include any state, commercial or other secrets, protected by law.

So, according to the 3rd paragraph of Article 7 of the RA law “On freedom of information”:

"If it is not otherwise foreseen by the Constitution of the Republic of Armenia and/or the Law, information holder at least once a year should publicize the following information related to his activity and or changes to it,

1) activities and services provided (to be provided) to public;

2) budget;

3) forms for written enquiries and the consultative instructions for filling those in;

4) lists of personnel, as well as name, last name, education, profession, position, business phone numbers and e-mails of officers;

5) recruitment procedures and vacancies;

6) influence on environment;

7) public events’ program;

8) procedures, day, time and place for accepting citizens;

9) policy of cost creation and costs (tariffs) in the sphere of work and services;

10) list of held (maintained) information and the procedures of maintaining it;

11) statistical and complete data on inquiries received, including grounds for refusal to provide information;

12) sources of elaboration or obtainment of information mentioned in this clause;

13) information on person entitled to clarify the information defined in this clause”.

The study of correspondence of “Healthy Hrazdan” Civic Initiative shows that the latter has been acting within the scopes of legislation on freedom of information (for example the application of “Healthy Hrazdan” Civic Initiative directed to the Minister of Energy and Natural Resources of RA as of August 20, 2013 is like that), but to make the further administration and process more predictable it was necessary to make references to the concrete norms of legislative acts. Moreover it is necessary to make reference not only to norms of substantive law, but also in the case of violating them, to the legislation provisions prescribing further steps of organization, expecting information and administrative body.

4. In the matter of protecting the rights of others the limited nature of authorities of public organizations does not except the opportunity to turn to authorized state or local self-government bodies. In this case for example representing offers may be concerned as substantiated. Moreover it is notable that the right of representing offers interrelates with obligation of public powers body to discuss it in established order and terms. Often, an approach is erroneously expressed, that there is no more legal basis to represent offers, as the RA law “On discussion order of citizen’s offers, applications and claims” is expired, but the fact that the law is not fully expired is ignored, particularly, according to the paragraph 3, Article 113 of the RA law "On Foundations of Administration and Administrative Proceeding", “After this law entering into force RA Law (as of December 22, 1999 ՀՕ-24) “On discussion order of citizen’s offers, applications and claims” is effective only by the part of citizen’s offers (the emphasis is ours)”. Let us add that according to the point 9 of the mentioned law, offers are subjected to discussions within the period of one month, if there is no need of additional studies.

            5. In the process of contestation of the lawfulness of normative legal acts of the administrative bodies it is appropriate to note also the existence of legal regulation of applying to Human Rights Defender. In particular, according to Paragraph 4 of Article 3 of Administrative Procedure Code of the RA “Human Rights Defender may also apply to the administrative court on the cases of contestation the lawfulness of normative legal acts ".

            In this case, it is necessary to note that it is exclusively about "normative legal acts", that is in the case of contestation of individual acts Human Rights Defender does not have authorities, which in itself is a controversial legal regulation, but at this moment such is the legal solution. Meanwhile, it should be noted that at the present stage of constitutional reforms the most acceptable option is the one, according to which it is appropriate to vest Human Rights Defender to apply both to the administrative court and the Constitutional Court for contestation not only normative, but also individual legal acts.

In this regard, the legally applied practice is still not effective: it is characterized by the fact that practically Human Rights Defender has never actually applied to the Administrative Court. Such a situation, however, is dictated not only by the "passivity" of Human Rights Defender, but the fact that the citizens and legal entities hardly apply to him with the appropriate mediation.

            6. It is also an important aspect to provide transmissions of offenses against the law to the competent authorities. The study of presented documents indicates that often in their responses sent to proactive non-governmental organizations, public authorities record specific facts of the offense, but the latters are not sent with the mediation of administrative proceedings or criminal proceedings by either public authorities, who record them, or organizations or citizens, who receive those responses. Moreover, in the same way they do not become a ground for disciplinary liability.

            7. In certain cases some public authorities in the records with non-governmental organizations inform about their disagreement concerning this or that legal act qualifying them with the strictest assessments, but they do not take any adequate steps in this direction, which probably pursues a mere attempt to divert the criticism of civil initiative. Thus, for example, in his letter dated 07 / 12-2 / 2150-14, June 26, 2014 aimed at "Healthy Hrazdan Group" civic initiative, Kotayk Regional Administration Staff Head M. Gareginyan expressed the following thought, "As for the position of regional administration on the environment damages caused during iron mine exploitation, we consider it a real natural disaster for Hrazdan region (the emphasis is ours)".

            In the mentioned cases this type of assessments given by the competent bodies of public authorities, which can be much more strict with merely formal standards, than they are sounded by representatives of civil society, we think, either should be responded with the expectation of competent bodies' discussion and the expectation of taking measures that give rise to specific legal consequences or the authors of those assessments should be offered to take appropriate measures within their own jurisdiction. Particularly, in the discussed case the person in charge for Regional Administration should have been applied to, so that the latter could be guided by the "Regional Model Regulation" Paragraph 7, Subparagraph "h" approved by decision N 564 of the RA Government dated on December 5, 1997, according to which one of the basic problems of the regional administration is "the preparation of proposals by the regional governor about the issues presented to the discussion of the Government of the Republic of Armenia and Prime Minister of the Republic of Armenia". It follows from this that in the case of position of the above-mentioned type they do not simply "inform" the public union about it, but rather raise a question to the competent body, in this case to the government in the procedure established by the law.

            The proposals of this methodical type are not exhaustive at all, as in specific cases there can be problems, which demand an individual approach, the solution of which should be based on the above-mentioned approaches, developing parallel legal steps in line with the specific situation

Council of ''Economic Legal Analysis Center” NGO