According to these changes, it is no longer required to present a statement about the administrative violation in order to impose administrative sanctions on the official violating the access to information right.
With these amendments another positive step was made in the sphere of freedom of information. The matter is that although article 189.7 of the ARM Administrative Procedure Code suggests a penalty of up to AMD 50.000, the FOI forensic practice shows, that it is almost impossible to execute this article on an offender official. The source of this issue was the legislation gap: according to articles 151 and 152 of the ARM Administrative Procedure Code, in order to inflict administrative sanctions on officials violating the access to information right a statement about the administrative offense was necessary. However, the Legislation did not define the competent body, which had the right to write this statement. As a result, the requirement for a statement was present, but the body to execute it – was not. Hence, courts did not upheld claims for imposing administrative sanctions on officials.
Only in the court case FOICA vs. the village municipality of Elpin, initiated by the “Freedom of Information Center of Armenia”, the official – mayor of Elpin – was imposed to an administrative sanction (penalty) for violating the access to information right (2009). This was the first and only case. In the several other court cases the claim to impose administrative sanctions on officials was denied.
Thus, in order to solve this issues, on September 9, 2009 the FOICA applied to the ARM Constitutional Court with a claim to recognize articles 151 and 152 of the ARM Administrative Procedure Code as anti-constitutional. On February 5, 2010 the FOICA’s claim was discussed in the ARM Constitutional Court, and it was decided that these articles to not contradict the constitution. However, the Constitutional Court stated that the problem lies in a legislative gap of the sphere. It was necessary for the ARM National Assembly – the competent body – to take a relevant initiative to reform the ARM Administrative Procedure Code and to fill the legislative gap of the institution imposing administrative sanctions.
As a result, due to the amendments made on January 31 in the ARM Administrative Procedure Code, the requirement to write a statement on the fact of FOI administrative offenses was removed.
So, due to these amendments, according to the last paragraph of article 254 of the ARM Administrative Procedure Code, no statement is needed when the access to information right is violated.
