On September 9, 2009, the Freedom of Information Center applied to the RA Constitutional Court with a demand to consider anti-constitutional Articles 151 and 152 of the RA Code of Administrative Procedures.
To consider Article 151 of the RA Code of Administrative Procedures as contradictory with Articles 18 and 19 of the RA Constitution and invalid on these parts, since it stipulates without an exception that “Cases on subjecting to administrative liability can be filed based on claims from agencies and officials having an authority to prepare protocols on administrative violations per law”, and thus does not provide with an opportunity to file a case on subjecting to administrative liability against officials, having made violations stated in Article 223 of the RA Code of Administrative Violations, including officials having made violation defined in Article 189.7, based on a claim from the victim.
To consider Article 152 of the RA Code of Administrative Procedures as contradictory with Articles 18 and 19 of the RA Constitution and invalid on these parts, since it stipulates in the list of requirements towards preparing a claim for subjecting to administrative liability, the requirement for including information on making a protocol and attaching a protocol onadministrative violation, for all violations without an exception, including those stated in Article 223 of the RA Code of Administrative Violations, particularly the violation defined in Article 189.7.
It should be mentioned as well that in the court practice there are contradictory approaches concerning the afore-mentioned issue. A part of Administrative Court was not accepting the Freedom of Information Center NGO’s lawsuits on subjecting to administrative liability under its proceedings, and the other part was accepting them, by placing on record the fact that there is no agency preparing protocols on such case.
On the 5th of February, 2010 the RA Constitutional Court heard the claim of the Freedom of Information Center to declare 151st and 152nd articles of the RA Administrative Procedure Code as contradicting the RA Constitution. Right on the same day the court announced its decision.
The Constitutional Court decided that 151st and 152nd articles of the RA Administrative Procedure Code do not contradict the RA Constitution. The Constitutional Court stated that the problem lies in the legislative gap in this sphere. It is necessary that the competent body, i.c. the RA National Assembly, implement a proper initiative in order to fill the legislative gap by carrying out reforms in the RA Code of RA Administrative Offence and by creating an administrative penalizing system.
In the end the president of the RA Constitutional Court Gagik Harutyunyan thanked the FOICA for touching upon such an important issue.
The Constitutional Court stated that it was necessary that the competent body, i.c. the RA National Assembly, implement a proper initiative in order to fill the legislative gap by carrying out reforms in the RA Code of RA Administrative Offence and by creating an administrative penalizing system. Following this decision, the Standing Committee of the State-legal affairs of the NA developed a package of legislative drafts in the mentioned Codes to solve the mentioned issue. The draft package is already approved by 1st reading in the NA. In the coming session, it is scheduled that the draft package will be adopted by the 2nd and final readings. Thus, the citizens and NGOs may apply to the courts and demand posing administrative penalty on the officials without submitting a protocol registering the violation case. This case can be considered as one of the major accomplishments of of the FOICA team.
