Open Letter
Ms. Elinar Vardanyan and members of the
Standing Committee on Protection of Human Rights and Public Affairs,
RA National Assembly
Ms. Arpine Hovhannisyan, RA Minister of Justice
According to the legislation in force a public association has a right to only its and its members’ judicial protection as a legal person. A public organization or a foundation is not authorized to file a lawsuit based on its activities in protection of public interests, whereas the need to legislative formulation of that right was stipulated by RA Constitutional Court and other state and international institutions long ago. In order to be entitled to file lawsuits in protection of public interest by public associations there is a need to have two legal acts, namely RA Law on Public Organizations and RA Code of Administrative Legal Proceedings and legislation in respective fields be amended.
The need to make additions in the mentioned legal acts is determined by the state’s obligation to carry out legislative reforms stipulated by CCD-906 decision of RA Constitutional Court, proper implementation of Armenia’s international obligations, as well as point 180 of the National Strategy on Human Rights Protection Action Plan. This priority is set due to both the strengthened role of NGOs in public life and European Integration policy adopted by Armenia. In particular, pursuant to European Neighborhood Policy, Partner countries should ensure civil society’s participation in decision making as “a pillar of a functioning democracy.”
The development of contradicting judicial practice on the mentioned issue also verifies of the need to legislative regulation of the issue. Two contradicting decisions of RA Cassation Court were made on the same case, both of which have the importance of precedent for lower courts (RA Cassation Court 30.10.2009 N CC/3275/05/08 decision and RA Cassation Court 01.04.2011 N CC/3275/05/09 decision). If we also add legal opinion issued by RA Constitutional Court decision it becomes obvious that without the rights to normative regulation, an opportunity to adequate protection becomes impossible, causing arbitrary interpretations and uncontrollable field of corruption risks.
The study of international experience also testifies that the right to judicial protection of public interests by public associations is this or that way stipulated by the legislations of nearly all EU countries and Russian Federation.
Thus, the need for legislative amendments is grounded by the following facts:
- RA Constitutional Court by its CCD-906 decision adopted on September 7, 2010 defined that public associations are entitled to come up with the protection of certain group’s collective rights if the protection is within the scope of certain goals of the given public organization. By the same decision RA Constitutional Court also defined that further legal developments should take place considering the above mentioned legal opinion.
- According to 2012 annual report on the implementation of RA Constitutional Court decisions RA Cassation Court by its CC/32/75/05/09 decision of 01.04.2011 interpreted at will the legal opinion issued by RA Constitutional Court decision CCD-906 of 07.09.2010, which implies that RA Cassation Court formed wrong practice of precedent on that issue.
- Pursuant to point 180 of National Strategy on Human Rights Protection Action Plan, approved by RA President’s N PD-159-N decree of October 29, 2012, the significance of carrying out legislative reforms on the issue of public organizations’ legal standing before administrative and judicial bodies is stipulated, based on the need of implementation of international agreements by Armenia’s participation.
- According to United Nations Economic Commission for Europe (UNECE) Aarhus Commission Compliance Committee’s communication ACCC/C/2011/62 of July 16, 2013 failure to initiate proceedings based on Ecoera environmental NGO’s claim litigating the decisions of RA Government and PA Ministry of Nature Protection, the Republic of Armenia failed to comply with article 9, paragraph 2, of the Aarhus Convention. Aarhus Commission Compliance Committee recommended that the government of Armenia make amendments to RA Law on Public Organizations and RA Code of Administrative Legal Proceedings by clearly stipulating public organizations’ right to file lawsuits against the actions of administrative bodies.
The above mentioned implies of quite controversial judicial practice regarding public rights protection public organizations’ legal standing before judicial bodies (two precedential decisions of RA Court of Cassation on the same issue). In view of such precedential practice only in case of normative regulation may public organizations’ access to justice be substantially regulated.
First, certain legal regulation was recommended for the mentioned issue in working versions of draft RA Law on Public Organizations (article 16, part 2), which after certain editing could fully comply with legal opinion of RA Constitutional Court and the recommendations of Aarhus Commission Compliance Committee.
By summing up the above mentioned, we offer Standing Committee on Protection of Human Rights and Public Affairs of the National Assembly of Armenia
a) to apply clear normative regulation for public rights protection (public interest) public organizations’ access to justice in adoption process of draft RA Law on Public Organizations, which is on the agenda of the Commission.
b) for the regulation of the issue make respective amendments to the suggested draft RA Law on Public Organizations and RA Code of Administrative Legal Proceedings to present them in a single package.
Furthermore, it should be mentioned that by removing the principled provision on public associations’ access to justice from the draft law submitted to RA National Assembly the compromise agreement achieved between the Ministry of Justice and civil society is violated.
- A. D. Sakharov Armenian Human Rights Protection Center NGO
- “Agate” center for women with special needs NGO
- Banbir NGO
- Open Society Foundations-Armenia
- Biosophia NGO
- Analytical Centre on Globalization and Regional Cooperation
- Youth Initiative Centre Gyumri
- Goris Press Club NGO
- Partnership and Teaching NGO
- “Guarantee” Center of Civil Society NGO
- United Colors of Youth NGO
- Yerevan Press Club NGO
- Ecoright NGO
- “EcoLur” Informational NGO
- Foundation Against the Violation of Law NGO
- Transparency International Anticorruption Center NGO
- Tufenkian Foundation
- Journalists’ Club “Asparez” NGO
- Real World, Real People NGO
- Europe in Law Association NGO
- Protection of Rights Without Borders NGO
- Rights Information Center” NGO
- Lore Eco Club
- Committee to Protect Freedom of Expression NGO
- "Khoran Ard" Intellectual Center NGO
- Women’s Support Center” NGO
- Women’s Rights Center NGO
- “Women’s Resource Center” NGO
- Arena of Education NGO
- Armenian Constitutional Right Protective Centre NGO
- Collaboration for Democracy NGO
- Public Information and Need of Knowledge NGO
- Association For Sustainable Human Development NGO
- APR Group (Advanced Public Research Group) NGO
- Society Without Violence NGO
- Helsinki Citizens' Assembly Vanadzor office NGO
- Spiritual Armenia NGO
- We Plus NGO
- Media Initiatives Center NGO
- Borders of our Rights human rights NGO
- United Way NGO
- "New sight" center of civil society NGO
- New Generation humanitarian NGO
- Social Justice NGO
- Sose Women's Issues NGO
- Spitak Helsinki Group NGO
- Unison NGO
Journalists for Human Rights has also joined to the petition.