Report of discussion in Vanadzor

26.08.2016

Report

On the results of the meeting with the “Center for Economic and Legal Analysis” held with the support of the OSCE at the Vanadzor Aarhus Center on the cut down firs in Vanadzor within the “To Assist the Government and Civil Society to solve Environmental Problems” project

 

On the 26th of August, 2016, at 11:30 AM, at the Vanadzor Aarhus Center the legal aspects of alerting the authorities to 6 cut down firs in Vanadzor were discussed. For a professional consultancy the “Center for Economic and Legal Analysis” sent its expert, an honored lawyer of the Republic of Armenia, the Head of the Constitutional Law Department of the YSU, Doctor of Law, Professor Gevorg Danielyan, as well as its manager, Mr. Hamlet Batikyan. Representatives of local NGOs and administrative bodies were invited to the round-table discussion. A representative from the Chamber of Advocates was present at the discussion.

The discussion was opened by Mr. Perch Bozhukyan, the President of the Vanadzor Aarhus Center, introducing the current situation and legal issues that interest him. He informed that on the 17th of August, 2016, 6 firs (2 of which silver) were cut down illegally on the Liberators’ Boulevard. Regarding this fact, Mr. Edmon Marukyan, a Deputy of the National Assembly, appealed to the Prosecutor General’s Office of the RA, demanding to initiate a criminal case under Article 296 of the Criminal Code. The very next day representatives of the local Prosecutor’s Office inspected the mentioned area. At the same time, representatives of the Aarhus center have obtained some preliminary information that the area is a private property and was allocated in 2000. The speaker said, that number of lawyers explained that an owner of a private land is entitled to freely cut down trees in his area. At the same time, the local television transmitted a Mayor’s letter with mo date and signature, addressed to the owner of the area. According to that letter, the Mayor allowed to cut down those firs, and offered to plant “thuja” trees after the construction.

Perch Bozhukyan asked for a clarification on what information should be required in order to start a legitimate and effective process, which bodies are authorized to be appealed and how.

In his speech, Dr. Danielyan informed that powers of private property owners are not unlimited, as is often mistakenly thought, but in order to start a legitimate process, at least the following questions should be taken into consideration:

  1. First of all, the legality of land allocation in this area should be clarified. Therefore, it is necessary to highlight that municipal bodies, when making land allocations, are obliged to act within the certain legislative framework. In this case, a written request should be sent to the Mayor of Vanadzor with the following subsections:

a)      According to the Land Code of the Republic of Armenia, Article 3,  Concerning the regulation of land relations the local self-governing bodies according to defined procedures, develop the basic settlement plans and implement land zoning and use mechanisms within the administrative territory of the community, according to basic settlement plans, within the administrative territory of the community and according to defined procedures, provide and take away land belonging to the community and the State due to the Law on Property, dispose the land belonging to the community due to the Law on Property, according to defined procedures. According to the Law of the Republic of Armenia on Local Self Governance, Article 38, the mentioned documents are drafted by the Chief of the Community, which upon agreeing with the respective authorized state body through the Regional Governor, are submitted to the Community Council for approval. The Chief of the Community, when making land allocations, must be guided by these documents and receive the approval of the Community Council.

b)      In this respect, the Mayor of Vanadzor should be questioned whether the mentioned documents were taken into consideration or not, the consent of the Community Council was given or not.

  1. When talking about the legitimacy of this particular land allocation, we should also mention the Article 60 of the Land Code of the Republic of Armenia, which specifies certain restrictions that exclude the allocation of land. In particular, the 6th paragraph of the mentioned article states the following restriction “Lands of general use (Squares, streets, roads, river banks, parks, public gardens, gardens, beaches, and other public use areas) located to residential areas”.

 

Since this is in reference to the area called "Azatamartikneri purak" («Freedom fighters’ boulevard»), it has a status of boulevard and this excludes land allocation. To check the details of this restriction it is reasonable to send the inquiry to the Mayor of Vanadzor as well as to the Ministry of Urban Development of Republic of Armenia in compliance with the norms of RA Law “On Freedom of Information”.

3. As it was already mentioned, the answer of the Mayor of Vanadzor in writing addressed to the owner of the area is available and it allows the cutting of 6 firs, just instead it is required to plant "thuja" trees after the construction.

This document is not signed and a date is not indicated therein, thus it is not lawful thereupon. But the case could not be considered legitimate even if it has been signed, as far as such permission should be given to the land owner not after the land allocation, but certain restrictions should have been defined beforehand. Thus, pursuant to the paragraph 11 of the Clause 1 of Article 49 of RA Land Code, land may be allocated "provided that the requirements for environmental protection or performing certain works are met, including fauna, soil layer, rare plants, natural, historical and cultural monuments and paleontological objects are preserved".

Thus, instead of assuming the authority to give permissions, the Mayor of Vanadzor should have pre-established environmental conditions, for example, he was competent to oblige the constructor to remove the firs of the area with roots and take them to any public area prescribed by mayor.

Generally, the logic of the position of both the Mayor and the owner with respect to cutting the trees is incomprehensible, as those trees are expensive, they have great demand, so they could be removed in roots and sold at least without causing damage to the environment.

4. Considering that the problem is not limited to cutting these 6 firs only and such strategy should be developed that will prevent similar violations to the extent possible in the future, it is necessary to include the following point in the inquiry addressed to the Mayor: whether use conditions prescribed in Article 49 of the Land Code of RA have been provided while making land allocations in such areas, to what extent the principle of restriction of discretionary power has been complied with in this case: in accordance with clause 2 of the  Article 6 of RA Law “On the basics of administration and administrative proceedings” “At exercising discretionary power the administrative body shall be guided by the necessity of protecting human and civil rights and freedoms enshrined in the Constitution of the Republic of Armenia, the principles of their equal rights, proportionality in implementation of administration and prohibition of arbitrariness as well as pursue other goals prescribed by the law”.

Generally, in such inquiries it should be emphasized that not only the facts of tree cuttings but also the legitimacy of the activities of local self-government authorities in the sphere of land allocation shall be under the control of civil society. If the results show that local self-government authorities have committed legal offences, it is recommended to discuss them once more with the experts of the "Center for Economic and Legal Analyses" NGO in order to clarify the legal bases for mediations of bringing to responsibility and the modes of representing them.