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[September 15, 2004] On August 10, 2004 the Court of Appeal on Civil Cases of the Republic of Armenia was scheduled to
examine the suit brought by the NGO Investigative Journalists of Armenia against the Office of the Mayor
of Yerevan, but at the request of the respondent, the hearing was postponed. It has been rescheduled
for September 16, 2004.
Court of Appeal on Civil Cases of the Republic of Armenia
6/07/2004 Appeal (against Award No. 2-2695 as of 21.06.2004 of the Court of the First Instance of Civil Cases of the Center and Nork-Marash Communities of Yerevan, Republic of Armenia) On 21.06.2004 the Court of the First Instance of the Center and Nork-Marash Communities of Yerevan, Republic of Armenia (presided over by Judge G. Karakhanyan) examining the civil case brought by the Investigative Journalists of Armenia Public Organization and journalist E. Bagdasaryan against the Municipality of the City of Yerevan claiming negligence on the part of a municipal official, resolved to refuse the claim. We believe that Award No. 2-2695 of 21.06.2004 of the Court of the First Instance of Civil Cases of the Center and Nork-Marash Communities of Yerevan, Republic of Armenia is ungrounded and unlawful; furthermore, it was taken in gross violation of material and judicial procedure rights with the following grounds: 1. The Court applied Article 12 of the RA Law "On Information Freedom", which should not have been applied. The RA Law "On Freedom of Information" entered into force beginning from 15.11.2003 while the negligence of the Yerevan Municipality (hereinafter referred to as "the Respondent") was recorded before 12.11.2003, this information being confirmed by the letter of the Respondent of 12.11.2003. According to Part 1 of Article 92 of the RA Law "On Legal Acts", it is not allowed to apply a legal act not yet entered into force. 2. The Court did not apply Article 24 of the RA Constitution, Article 10 of the Convention of Human Rights and Fundamental Freedoms Protection (hereinafter referred to as "the Convention"), Articles 1, 2, 3, 4 and 5 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (hereinafter referred to as "the Aurhus Convention"), Articles 4 and 27 of the RA Law "On Press an Other Mass Media " (hereinafter referred to as "the Mass Media Law), or the requirements of Articles 3, 4 and 6 of the RA Law "On the Order of Discussing the Suggestions, Applications, and Complaints of Citizens" (hereinafter referred to as "the Law"), which it should have applied. The above norms assign the rights of applicants to request information and the obligation of the respondent to provide such information. The Court recognizing the violation by the Respondent of Article 6 of the Law nevertheless did not assess this violation when the Applicant requested that it consider the negligence of the Respondent unlawful as well. 3. The Court violated Article 53 of the RA Civil Procedure Code by providing no objective, full, and comprehensive examination of the following pieces of evidence available in the case: - the letter of the Applicant of 02.10.2003, according to which the Applicant requested that the Respondent allow the Applicant to examine the decisions of former mayors of the City of Yerevan V. Siradeghyan, S. Abrahamyan, and R. Nazaryan taken beginning from 1997 up to 2003 on the areas adjacent to the RA National Opera & Ballet Theater, substantiating this with the argument that the Public Organization was preparing a series of articles about the cafes located on that given territory: the aforementioned evidence substantiates the argument that the latter requested from the Respondent information based on the "as per area" inquiry principle; - the letter of the Respondent of 12.11.2003, according to which the latter declared that it was necessary to clarify what specific information was anticipated to be obtained: the aforementioned evidence substantiates the argument of the Applicant that the Respondent violated Article 6 of the Law - instead of resolving the application per se, it provided an answer containing an inquiry to be conducted in violation of the time period established by the same norm; - the letter of the Applicant of 09.06.2004 in which the Applicant very specifically indicated the names of the streets where the cafes on which it requested information were located; - the letter of the Respondent of 16.06.2004 in which the Respondent declared that the application made unclear what subjects were requested to be included for the anticipated information: the aforementioned evidence substantiates the argument of the Applicant that the Respondent displays inaction and does not wish to provide information, explaining this with the absence of subjects' names in the inquiry, whereas the inquiry was submitted according to the 'area adjacency' principle (and not according to the 'subject' principle) and the municipality of the City of Yerevan possesses this information (according to the RA Land Code). 4. The Court violated the requirement of the 6 th part of Article 162 of the RA Civil Procedure Code stating that when trying the application for considering null and void the act of the state body, or its officials, the burden of proving the circumstances which were the grounds for the adoption of the act is on the body which adopted the act or its official. The Responded failed to prove the circumstances found as a basis of its inactivity, which could serve as a basis for the Court to refuse the application, particularly the Respondent failed to prove that the municipality of Yerevan City did not possess the requested information, and b) that the information on the required areas was unclear. 5. The Court violated the requirement of the 1 st part of Article 132 of the RA Civil Procedure Code stating that the motivation must indicate the circumstances clarified by the court, the evidence on which the conclusions of the court are based, the argumentation for the exclusion of this or that evidence, as well as those laws and other legal acts by which the court was governed when adopting the verdict. The 'motivation part' of the Court verdict lacks the information requested under the above norms. 6. The Court violated the requirement of the 1 st part (the fifth paragraph) of Article 132 of the RA Civil Procedure Code stating that the conclusion must contain conclusions on upholding or rejecting each claim, as well as a note about the time limit for the appeal of the verdict. The Court verdict refers only to rejection, whereas the applicant has submitted 2 claims: the 1 st - to consider the inactivity null and void, and the 2 nd - to undertake certain actions directed to oblige the Respondent to act appropriately. The aforementioned gross violation of material and procedural rights has resulted in the incorrect resolution of this civil case. Proceeding from the above, and taking as a basis the requirements of the 4 th part of the RA Civil Procedure I REQUEST: - that the negligent actions of the municipality of Yerevan City regarding the decisions of the former mayors of the City of Yerevan V. Siradeghyan, S. Abrahamyan and R. Nazaryan taken beginning from 1997 up to 2003 on the adjacent areas to RA National Opera & Ballet Theater be declared null and void; - that the municipality of the City of Yerevan be obliged to provide all information pertaining to the decisions of the former mayors of Yerevan City V. Siradeghyan, S. Abrahamyan and R. Nazaryan taken beginning from 1997 up to 2003 on the adjacent areas to RA National Opera & Ballet Theater (including the grounds). Herewith attached are: - a copy of the verdict being appealed; - a receipt for the paid state duty; - the original of the receipt for sending the appeal to the Respondent by post. Appeal bearer: President of "Investigative Journalists" NGO and |
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