Is a closed system of legal standing always safe for the environment. The Case of Armenia
| Autor | Gor Movsisian |
| Cargo | Lecturer. Yerevan State University (Armenia) |
| Páginas | 1-21 |
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The process of shaping the rule of law will last for decades in the Republic of Armenia. Although it will require changes in individual mentality, it is the best way of securing a well-shaped legal system. Power is an organic phenomenon that embodies a comprehensive and integrated expression of progressive and regressive aspects, which society largely perceives through the legal system. Indeed, for a society struggling to ensure the rule of law it is crucial that the executive branch adheres to the law, because there is the possibility of abuse and accumulation of power. The present analysis should under no circumstances be perceived as an endorsement of recent criticism of the Armenian judiciary from apparently spontaneous social movements. However, society’s perception of constant violations of the rule of law by the courts is vivid, even if the causes are not well established1(especially the interconnected nature of these causes). The aim of my analysis of this topic is to go beyond a superficial assessment of the activities of judicial and executive branch.
The economic crisis is bringing with it a process of removing environmental protection mechanisms in legislation, particularly in societies that have no serious possibilities of taking rational choices in the political arena, for a variety of complex reasons.2
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Recently, when defending my PhD thesis on the legal regime of public intervention in the management of nature resources in Armenia3I came to the following conclusion: "The provisions of environmental legislation within the overall system of Armenian legislation stand out for the low level of their quality (from substantial ambiguity to non-compliance with the rules of legal technique, e.g. Law draft ‘On the amendments and addendums to the Law of the Republic of Armenia (henceforth RA Law) on environmental impact expertise’), also caused by the closed system between license holders and executive power." Currently we are facing a situation in which a significant number of executive decisions (particularly, the Ministry of Nature Protection, Ministry of Energy and Nature Resources, Ministry of Healthcare, etc.) granting the right to use nature resources are excluded from judicial review because of the "absence of entities" capable of challenging their decisions (or omissions) before the courts. Consequently, there is a situation of non-compliance with the constitutional order, particularly article 5 of the Constitution of Armenia.4The circumstances described certainly affect the overall social surveillance in the legal regulatory mechanism of society.
A comprehensive idea of human environmental rights was only introduced into Armenia in 2005 by means of an amendment of the Constitution that added a new article (33.2). This article stipulates that everyone has the right to a healthy environment and to environmental information (although it is not conceived literally as a right, but as the public authority’s obligation to disseminate environmental information). Furthermore, everyone has the right of access to effective legal remedies in order to protect constitutional rights and freedoms before courts and other public authorities (article 18). Even so, despite such complete constitutional recognition of environmental rights, the legal solutions to real life situations are much more complex to cope with than general legal provisions or even international obligations.5
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Without going into the debate on the "resource curse" hypothesis,6which in my opinion mainly concerns the interrelation of people’s sovereignty and state sovereignty (with the natural privilege of people’s sovereignty), I should point out that ordinary Armenian citizens cannot enjoy their right to a healthy environment and to use natural resources, partly because of its "classical vagueness". Given this, in the last six years nongovernmental organizations (NGOs) have asked the courts to revoke and invalidate administrative decisions violating the human right to a healthy environment.
The first question posed by both main actors in the legal process of licensing the use of natural resources (license holder and government) was why an NGO should have the right to challenge administrative acts, omissions and decisions of the executive bodies, given the fact that its substantive rights are not affected by them7Facing up this question the Cassation Court of the Republic of Armenia had overcome apparently the alleged closed system of legal standing in environmental matters in its Decision of 30 October 2009.8Indeed, the further strengthening of the Cassation Courts’ position would mark a new era for the maturity of human environmental rights in Armenia. I would go so far as to say that this new era would have the same significance as the ratification by Armenia of the United Nations Economic Commission for Europe (UNECE) Convention on access to information, public participation and access to justice in environmental matters (the Aarhus Convention)9or to the recognition of human environmental rights in the Armenian Constitution. However, our discussion of the situation below after the aforementioned Decision does not allow us to be so optimistic, and the beginning of a new era in this domain may now only be a possibility.
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In its aforementioned decision of 30 October 2009, the Cassation Court of Armenia reversed a decision of the Administrative Court of the Republic of Armenia for the first time and deemed that the appeal of an NGO against the rejection of its legal standing in an environmental protection case is receivable.10In its argumentations and conclusions, the Cassation Court of Armenia stated the following; "‘Ecodar’ NGO is an entity established in accordance with the RA Act on Non-Governmental Organizations". It meets the requirements of national law and promotes environmental protection in accordance with the mission and objectives established in its charter. Consequently the Cassation Court of Armenia considers "Ecodar" NGO a concerned organization in the sense of the Aarhus Convention, and it possesses the right to access justice before the courts in environmental matters. To come to this conclusion the Cassation Court refers merely to the Act on Non-Governmental Organizations,11to the provisions of the Aarhus Convention, particularly regarding articles 3 and 79 of the Code of Administrative Procedure of the Republic of Armenia12(hereinafter RA CAP).
According to the requirements of RA CAP on the implementation of the Cassation Court’s judgements (Chapter III), the Administrative Court is vested only with the authority to examine the case merits: namely, the substantive issues of the case. However, the Administrative Court of Armenia ignored the requirements of the legislation and referred once again to the procedural issues of the case, particularly the legal standing of NGOs, in its Decision of 24 March, 2010. Because any comments on the subject and the background of the appeal are superfluous, I would like to move straight on toargue that there is a violation of article 3 of the Constitution of Armenia, stating that "[s]tate and local self-government bodies and public officials are competent to perform only such acts for which they are vested in by Constitution or laws."
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The developments take a different route just after the aforementioned Decision of the Administrative Court of Armenia. The Cassation Court of Armenia reviewed the appeal brought against that Decision and concluded that it should not be upheld.13In general, the new Decision of the Cassation Court of Armenia lacked any grounds and contained only references to: 1) the RA CAP, 2) the Decision of the Cassation Court of Armenia of 30 March 2010, and 3) Decision N 906 of the Constitutional Court of Armenia.
Before the Decision of the Cassation Court of Armenia of 1 April 2011 the phrase "his/her" following the word "breach" of the article 3 RA CAP was submitted to the consideration of the Constitutional Court of Armenia. On this issue, the Constitutional Court Decision N 90614stated the following:
"1. Considering the role that NGOs play in the development of state and civil society and in an attempt to increase the efficiency of their activities, the Constitutional Court of Armenia finds that the RA CAP may encompass the occasions of bringing cases before the court by concerned NGOs (on the basis of the Charter) for the purpose of protecting public interest. For this reason, the current developments of the institution of actio popularis in Europe should be taken into consideration. This kind of regulation will both promote the protection of violated rights and lawful interests, and increase the role of NGOs as a substantive part of civil society.
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The actio popularis should be excluded when there is a lack of sufficient interest. The Constitutional Court concludes that for the purpose of increasing the effectiveness of social control over the state and...
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