It should be noted that the RA Law On “Information Freedom” (hereinafter referred to as “the Law”) has been in force for about three years now since the 15th of November, 2003. During this time period citizens, public organizations/NGOs, journalists have had an opportunity to look for and have access to any required information under the Law.
Without sufficient legal defense of access to information right it is nearly impossible to conceive the implementation of other human rights, nor the publicity and transparency of the management system.
Court cases also enrich the law enforcement practice, which is so vital for the realization of the entire Freedom of Information Law.
Judicial system should perform controlling function in relation to executive and legislative bodies, so that the latter cannot willfully deprive people of the freedom and opportunity to get information or put accessibility of information into dependence of anyone’s subjective wishes. Courts should treat distrustfully any requirement of the state bodies for limitation of information accessibility.
Section 9 of the Recommendation (2002) of the Committee of Ministers to member states on access to official documents establishes that “An applicant whose request for an official document has been refused, whether in part or in full, or dismissed, or has not been dealt with within the time limit mentioned in Principle VI.3 should have access to a review procedure before a court of law or another independent and impartial body established by law.” Besides, it states that the review procedure should be expeditious and inexpensive.
These requirements were reflected in the RA Freedom of Information legislation. According to the RA Law “On Freedom of Information” illegal limitations of the right to get information or other violations of the Freedom of Information Law may become a subject of an independent investigation. Without this guaranty FOI legislation becomes inefficient.
Public organizations (PO)/NGOs, being concerned and realizing the importance of the right to information for controlling the activity of the state governing and local self-governance bodies and their officials, were often forced to defend their and other citizens’ right judicially.
Court practice in defending freedom of information right in Armenia has started forming even before the adoption of FOI Law (The FOI Law was adopted on the 23rd of September 2003 and entered into force on the 15th of November the same year).
That is why the FOI court cases presented in these collection were divided into two groups: the court cases instituted before and after the adoption of this law.
Of the total seventeen cases 10 were resolved positively, 4 – negatively, and 3 cases were satisfied partially. 6 of the court cases took place during the time of adoption of the law: 2001-2003. They were of a specific nature and the plaintiffs in all cases were NGOs (Freedom of Information Centre, “Achilles” Organization for the protection of drivers’ rights, Association of Investigative Journalists, Vanadzor Office of Helsinki Civil Assembly and “Asparez” Journalists’ Club of Gyumri) active in the given area.
The first legal case for the protection of the right to get information was the case of ““Asparez” Journalists’ Club of Gyumri and Gagik Nikoghosyan, a reporter of “Iravunk” Daily versus the RA Ministry of Education and Science” instituted on the 30th of August, 2001. Eventually, the case was lost by the journalists. The details of the case are presented in these collection.
No claim from any individual journalist or citizen has been suited before the adoption of the Law. In the conditions of the absence of the FOI Law, the claims for the protection of the right to get information were particularly based on Article 10 of the European Convention, Article 24 of the RA Constitution guarantying freedom of speech and information, as well as on the RA Law “On the Procedure of Examining the Suggestions, Complaints and Applications of Citizens”. At this stage it was rather difficult for the plaintiffs to speak about the provisions of the European Convention, the requirements of Aarhus Convention on Access to Information and Access to Justice in Environmental Matters, when the judges who considered the cases, looked astonished at the plaintiffs and sometimes interrupted with “This is irrelevant to the case” phrase.
Of 6 cases instituted before the adoption of the Law only two were judged in favor of plaintiff-NGOs, but only partially. After the negative result in the court case of the journalists it became clear that the courts were not yet ready to take fair and unbiased decisions, especially when one of the counterparts in the court hall was a state body or state official.
The adoption of the Law has not improved the situation just because neither the society in general, nor the judges were aware of the FOI legislation. Although it should be noted that the number of positive court cases for the protection of the right to get information increases from year to year. During the period from 2003, the year of the adoption of the Law, to September 2006, 11 legal cases took place; the majority of which (eight cases) was instituted in the marzes. The initiator of seven court cases of eleven was the Freedom of Information Centre, which instituted all the court cases in the marzes through its regional lawyers. The Centre set itself as an objective to create a strategic court practice in protecting the right of access to information, which should enforce legal mechanisms for the protection of this right and play a leading role for the further development and enrichment of the right protection.
It is therefore that the organization selected particularly the cases, which possibly touch upon the interests of a big number of people ensuring through court decisions, for example, transparency of community budgets, accessibility of mayors’, Council of Elders’ decisions, etc.
It should be noted that legal cases perform not only a rehabilitative function of the infringed right, but also a preventive function. 3 cases out of 7 instituted by the FOI Centre were closed before the court examination started: the respondent receiving a subpoena hastened a day earlier to provide the refused information in order to save its reputation and escape from possible problems.
In almost all court cases having positive output the court obliged respondents to provide the refused information, and in some cases also obliging to compensate the legal costs (see, for example, the cases “Freedom of Information Centre versus Ararat Marzpetaran” and “Freedom of Information Centre versus Aparan Marzpetaran”).
Today none of the officials violated the right to get information has subjected to criminal or administrative responsibility, albeit both criminal and administrative legislations envisage responsibility for any infringe of information freedom.
Let us note that the Code of administrative violations foresees a responsibility for the failure to perform information provision duty. “Illegal failure of state and local self-governing bodies, state agencies, organizations financed from the state budget and officials from organizations of public importance to provide information envisaged by the law entails imposition of fine at the amount ranging from tenfold to fifty fold minimum established salary. The same infringement/violation, committed repeatedly, after imposition of administrative fine during a year period will entail imposition of fine at the amount ranging from fifty fold to hundredfold of the established salary ”.
Article 148 of the RA Criminal Code also establishes a responsibility for the violation of the right to get information obliging the violator to pay fine at the amount of 200 to 400 minimal salaries.
So, why do plaintiffs abstain from the opportunity to punish the violators stringently under the law? While running strategic court cases the Freedom of Information Centre has never appeared with a claim to punish the violators/infringers under criminal or administrative codes, believing that at this stage the primary goal of any public organization is to acquaint the officials with the FOI legislation and form a culture to act publicly, rather than to punish them.
What, nevertheless, impedes the proper court defense of freedom of information right? Such impediment is stipulated by a number of key problems:
1. Court dependence on executive power. The first vital problem refers to the court’s independence and impartiality. It is difficult for a court to take a decision against the representatives of the executive power due to dependence on executive power. Availability of a just court is the exclusive guarantee for the protection of human rights.
2. Lack of confidence with the court. Availability of only two cases instituted by physical persons proves that people simply do not trust the court; they do not believe that the court can serve as a guarantee for rehabilitation of their infringed/violated rights.
3. Imperfect legislative environment. Two sub-legislative acts on providing the right to get information are missing. For example, the court sometimes substantiates judgment of dismissal by the fact that the Government has not yet adopted the order for the provision of information by state bodies as envisaged by Article 10 of the FOI Law, thus refusal of the state body to provide information is allegedly considered legal. It should be noted that the OSCE Representative on Freedom of the Media Mr. Mikos Haraszty on the State of Media Freedom in Armenia released on July 26, 2006 covered this problem noting that “public discussion and adoption of sub-legislative acts are necessary to ensure the proper implementation of the law”. (See http://www.foi.am/am/rcontent/5/633 ).
4. Lack of awareness in the judicial system and in the society in general. The experience shows that judicial system is not yet well aware of the key provisions of the FOI legislation. We think that ignorance in the legislation can lead to such substantiation of a judge’s decision as follows: Judge G. Karakhanyan of the Court of First Instance of Kentron and Nork Marash Communities substantiated his refusal of the claim of “Achilles” against the RA Police” as of 15 December 2003 by the fact that the RA Police is not authorized to provide information to that public organization.
5. Creation of a specialized group of lawyers and advocates/attorneys is important for the success of legal cases.
We believe that together with the development of legal defense practice it is necessary to develop and stir up other forms of protection, particularly such efficient mechanism as an institution of human rights ombudsman. Applying to court is expensive, costly and time-consuming, especially if dealt with information. Before the end of court’s examination the sought information becomes out of date and useless. It is therefore that journalists refrain from applying to the court. The world’s experience shows that the best guaranty for the protection of the right to get information is Human Rights Ombudsman or Freedom of Information Commissioner. We are of an opinion that an institution of FOI Commissioner will be created in Armenia in the near future. Such bodies were specially created to study FOI related complaints (e.g. in Australia, Canada, France, Sweden, USA, etc. There are even countries where there is no legal defense for the protection of this right at all. For instance, in New Zealand the ombudsman was declared to serve as the highest and the only instance to appeal any FOI claim: “We believe that ….. there are convincing reasons not to give the courts ultimate authority in such a matter. The system we favor involves the weighing of broad considerations and the balancing of competing public interests against one another, and against individual interests. If the general power to determine finally whether there should be access to official information was given to the courts, they would have to rule on matters with strong policy and political implications”, states Judith Aitken in her work “Open Government in New Zealand”.
In Armenia a newly appointed Human Rights Ombudsman examines also FOI related claims. However, the Ombudsman is only authorized to come up before the body in default with recommendation or solicitation to remove the violation/infringement and such recommendation is not binding. Efficient activity of the Human Rights Ombudsman will require entrusting the latter also with the power to accuse officials who violated/infringed human rights. In addition, for the efficient operation the Human Rights Ombudsman shall be free from any political and economic pressure, which means that he/she should have a real financial independence.
Finally, since formation of political will to realize freedom of information lingers, it is necessary to stir up the public will, at which all our efforts are directed.
Shushan Doydoyan, Candidate of philological sciences
President of the Freedom of Information Center
