The Administrative Court dismissed the lawsuit filed by Peace Dialogue NGO over obligating the Ministry of Defense to provide necessary information.
On November 3, 2014, Peace Dialogue NGO received RA Administrative Court’s (Judge Arman Dilanyan) refusal to satisfy Peace Dialogue NGO’s lawsuit over obligating the Ministry of Defense to provide necessary information.
Peace Dialogue NGO, in cooperation with Dutch organization PAX, initiated Safe Soldiers for a Safe Armenia project aimed at improving the human rights situation in the Armed Forces. In addition to other activities, it is intended to carry out a monitoring of death cases in the RA Armed Forces and to create a database accessible to public.
Within the framework of Safe Soldiers for a Safe Armenia project, Peace Dialogue NGO sent an inquiry dated 03.03.2013 to the RA Minister of Defense requesting that they provide official information on the death of soldiers for the period of 2010-2011, including the full names of the deceased soldiers, the location of the incident, date, unit number, unit commander’s full name and title, the cause of death and a brief description of the incident.
In response to this inquiry, the Head of RA MoD Staff G. Hayrapetyan, in his MoD/510-AG-716 letter dated 06.12.2013, provided information about the fatalities in the armed forces that resulted in the death of soldiers for the period of 2010-2011. Peace Dialogue NGO had no information about those fatalities.
In the enquiry dated 21.01.2014, Peace Dialogue NGO once again asked the Minister of Defense to provide similar information but this time for the period of 2007-2009.
In response to the enquiry, the Head of RA MoD Staff G. Hayrapetyan, in his MoD/510-AG-64letter dated 14.02.2014, refused to provide the requested information.
After receiving the rejection letter from the RA MoD, Peace Dialogue NGO sent an enquiry dated 10.04.2014 to the RA MoD, which presented objections regarding the rejection and arguments that the information requested by the NGO must be provided under the law. After not receiving a response within 71 days (2 months), the NGO once again sent an enquiry dated 21.06.2014 to the Ministry of Defense, requesting them to provide a response to the organization’s enquiry dated 10.01.2014. The administrative body, however, failed to respond to the mentioned enquiries, thus Peace Dialogue NGO once again sent an enquiry (dated 12.08.2014) to the RA Minister of Defense.
As a result, RA Minister of Defense failed to respond to Peace Dialogue NGO’s enquiries dated 10.04.2014, 21.06.2014 and 12.08.2014, while RA Ministry of Defense failed to provide the information requested by Peace Dialogue NGO with the enquiry dated 21.01.2014.
After losing any hope of receiving an answer, the organization filed a lawsuit noting the legal obligation the Ministry of Defense has to provide the necessary information. In the appeal the organization presented arguments and explanations proving that it was illegal and unjustified of the Ministry of Defense not to provide the necessary information requested by Peace Dialogue NGO in its enquiry dated 21.01.2014.
In addition to the aforementioned arguments and explanations in its legal request Peace Dialogue NGO also presented the reasons why the organization failed to file the lawsuit to the court within the set deadlines.
After receiving the MoD/510-AG-64 letter dated 14.02.2014 from the Head of RA MoD Staff G. Hayrapetyan within a month period, Peace Dialogue NGO did not file a lawsuit to the Administrative Court, thus, in fact missing the appropriate deadlines for filing a lawsuit to the court provided under Article 72 of the Administrative Procedure Code. The deadline was missed for justifiable reasons.
In a letter sent on February 14, the Ministry of Defense refused to provide the information requested by Peace Dialogue NGO. After receiving this letter, Peace Dialogue NGO sent an enquiry dated 10.04.2014 to the Ministry of Defense and presented objections regarding the rejection and arguments that the information requested by the NGO must be provided. After not receiving a response within the mandated 71 days (2 months), the NGO once again sent an enquiry dated 21.06.2014 to the Ministry of Defense, requesting them to provide a response to the organization’s enquiry dated 10.01.2014. The administrative body, however, failed to respond to the mentioned enquiries, thus Peace Dialogue NGO once again sent an enquiry (dated 12.08.2014) to the RA Minister of Defense.
It is obvious from the contents of the enquiries that they were sent with an aim to obtain information and solve the problem. The enquiries are not just reminders; instead, they are documents with relevant content which reveal the nature of the requested information and explain why the requested information is available to the public, as demonstrated by the information presented concerning the deaths in 2007 – 2009. Therefore, it was not an inaction demonstrated by the organization when missing the deadline of filing a lawsuit, instead the organization was busy with finding reasonable and effective measures to solve the problem.
In addition, to the mentioned enquiries were sent at intervals of 1-2 months and thisin its turn caused the delay in presenting a plea. There is an explanation why there were intervals in sending the enquiries. The reason is that, the enquiries sent to the Ministry of Defense are always delivered with violation of a 5-day period regulated by the RA Law on Freedom of Information.
As a rule, the responses to enquires are received within 20-30 days. To substantiate the mentioned facts, the copies of RA MoD responses were attached to the plea, which prove that the responses are made in violations of the dates set by law. This is also substantiated by the report on the Human Rights Situation in the Armed Forces published by Helsinki Citizen’s Assembly Vanadzor. The report includes a graphics demonstrating the enquiries sent by the organization in 2013 and the chronology of the responses.
Only after not receiving the mentioned responses Peace Dialogue NGO consulted with a lawyer. The lawyer also needed some time to become familiar with the case and to prepare relevant legal documents. There are justifiable reasons for missing the deadline set for becoming familiar with the case and preparing relevant legal documents.
Thus, after receiving the rejection letter the organization did not demonstrate inaction, instead it took all necessary action to obtain information. This substantiate that action lawsuit filing deadline was missed for a valid reason.
However, the Administrative Court rejected a motion to recover the missed procedural deadline and the case was dismissed. According to RA Administrative Court Judge Arman Dilanyan: “the organization’s second enquiry was not given a status of complain arbitrary, instead it was done to give favorable conditions to the organization for calculating the procedural deadlines. However, even in this case, the organization missed the deadlines.”
Thus, the second, the third, and the fourth enquiries, which were sent to present the organization’s position towards the MoD’s rejection of providing relevant information, and to actually obtain information from them, was accepted by the court as a way to win some time and a “rogue” attempt to avoid violation of deadlines. Whereas, in fact, at that time the organization still hoped to receive the requested information and had no wish to file a lawsuit.
Taking into consideration this “analysis”, the Court, having the opportunity to choose between the individual’s right to effective judicial protection and ensuring legal certainty in the application of the constitutional principle, came to the following conclusion: “… in this situation the need for ensuring legal certainty in the application of the constitutional principle is of more importance.”
Posted 06 November, 2014
