Chapter 1: Armenia

LEGAL AND INSTITUTIONAL FRAMEWORK AND PRACTICES FOR PUBLIC PARTICIPATION

General

Constitutional Rights

• "The owner of property may dispose of, use and manage the property at his or her discretion. The right to property may not be exercised so as to cause damage to the environment or infringe on the rights and lawful interests of other persons, society or the state." (Article 8);
• "The state shall ensure the protection and reproduction of the environment and the rational utilization of natural resources." (Article 10);
• "Everyone is entitled to the preservation of health." (Article 34).

Implementation of International Legal Instruments

• Universal Declaration of Human Rights, adopted by the UN General Assembly at New York, U.S.A. on December 10, 1948; Article 25, accessed January 4, 1991, and implemented in Articles 31, 33 and 34 of the Armenian Constitution;
• Convention on Environmental Impact Assessment in a Transboundary Context; adopted at Espoo, Finland, on February 25, 1991, ratified on May 14, 1996;
• Convention on Transboundary Effects of Industrial Accidents; adopted in Helsinki, Finland, ratified on May 14, 1996.

Armenia has not made any reservations to the above Conventions. As of March 1998, Armenia had not acceded to the following:

• Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, adopted at Lugano, Switzerland, on June 21, 1993;
• Convention on the Conservation of European Wildlife and Natural Habitats, adopted by the Council of Europe at Bern, Switzerland, in September 1979.

In addition, Armenia is preparing to sign the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, adopted at Helsinki, Finland, on March 17, 1992.

In general, the provisions of these conventions have not been implemented. A commission to prepare for the implementation of provisions laid down in the "Convention on Environmental Impact Assessment in a Transboundary Context" and the "Convention on Transboundary Effects of Industrial Accidents" was not organized until the end of 1997.

Implementation of International Nonbinding Instruments: Sofia Guidelines

Pursuant to its statute, the Environmental Protection Public Advocacy Center (EPAC) represents public environmental interests and the environmental rights of citizens and institutions in courts. In addition, regular round tables conducted by EPAC facilitate the environmental legal education of citizens, NGOs and public officials.

Powers and Responsibilities of Local/Regional Governments Concerning Environment

Article 107 of the constitution provides that the provinces shall be governed by the state government and the government shall appoint and remove the governors of the provinces. In accordance with the Presidential Decree of June 5, 1997, (the Law on State Governing in Provinces, division 1.20), a Governor is entitled to:

• participate in the draft-making process of environmental protection programs, and within the scope of his/her authority, ensure the programs' implementation within the province;
• supervise the implementation of environmental legislation on the territory of the province and inform responsible public authority bodies about any violations;
• support the protection and utilization of prohibited zones, national parks, special protected areas, and take actions against poaching, unlawful fishing and/or tree felling.

Unfortunately the power of local governments is exercised in a regressive way. Many unlawful decisions are made, especially in the area of land use.

Access to Environmental Information

Legislation on Access to Information/ Environmental Information

The basis of the legislation of the Republic of Armenia on the protection of nature secures the right of citizens "to demand and receive timely and comprehensive information on the state of the environment". The Law on Safeguarding the Sanitary-Epidemiological Security of the Population (1992) establishes the right to "authentic and comprehensive information and notice on the sanitary-epidemiological situation of the environment" (Article 10).

Passive Provision of Information

The law does not define environmental information. Even the draft Environmental Protection Law has no provision for defining the term "environmental information."

Conditions for Obtaining the Information

There is no special law on access/provision of information in Armenia, but the law on the "Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens" passed on April 12, 1990, requires that any application must be responded to within a month. If additional research is required this term is extended by 15 days, and if it is necessary to make further investigations, to demand additional documents or to take other necessary action, this response period can be extended by a head or deputy head of the governmental body for a period of no more than one month.

The Law does not stipulate the necessity of the applicant to elaborate upon his/her interest.

Refusal to Provide Information

Information may be refused if the requested material is considered either a state secret or classified governmental information (the Law on State Secrets and Classified Governmental Information, 1996). Information on EIA may also be refused if the requested data is subject to state, industrial or commercial secrets act (the Law on Environmental Impact Assessment, 1995).

Pursuant to the Law on State Secrets and Classified Governmental Information (1996, Article 9), the following data may be subject to restricted access:

• Military - Certain documents of strategic importance, especially those concerning mobilization of armed forces, military industrial complex programs;
• Foreign Relations;
• Economy, science and technology - Especially if related to issues surrounding national security and defense.

Under Article 10 the following data may not be considered as state secrets or classified governmental information:

• information on emergencies or catastrophes which threaten the security and/or health of citizens; natural disasters;
• information on the general state of economy;
• information in the area of the protection of the environment, health care, education, agriculture, domestic trade, culture;
• information on any restrictions of human rights.

Informal Guidelines for Agencies and the Public

There are no general guidelines for the public on how to request information and/or environmental information. There are guidelines for the public on how to appeal to public authorities (the Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens). Applications must be in written form and signed in the applicant's full legal name with information about his/her current address and place of employment (the Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens, Division 2).

There are no general guidelines for public authorities on how to provide information and/or environmental information, although there are guidelines on how to respond to requests for information. Response must be in written form or, with consent of the appellant, may be oral (the Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens, Division 11).

Specific Institutions/Officials to Provide Information

All supreme bodies of public administration (parliament, government, president) have press-departments, which are responsible for presenting information and/or environmental information to the public. The Ministry of Nature Protection also has a public relations department.

If an Authority Does Not Possess the Information

If a public authority does not possess requested information, the authority is obliged to forward the request to an agency which does possess the information within five days. This agency is not entitled to refuse the request on the grounds of absence of information.

Costs of Obtaining Information

Legislation on the issue of information held in public registers and available to the public is not regulated in a precise and clear way. According to the public relations department of the Ministry of Nature Protection, environmental information is provided as required to the public (for example to the media and NGOs). If information is not available, the ministry will acquire information from the relevant bodies. All information provided is free of charge.

However, the legislation does not regulate the issue of payment for obtaining copies of information. The Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens does not regulate the issue of payment, because it is not intended to ensure the provision of information.

Active provision of information

Obligation to Disseminate Information Actively

In accordance with the charter of the Department of Emergency Situations attached to the Government (adopted by the Resolution of the Government, August 14, 1997 No. 389):

• the department organizes and carries out informational and analytical work, and provides information on emergencies (division 4.9);
• in conjunction with the Ministry of Communications and local self-governing bodies, the department has created a notification system, which provides information for the population (division 5.9);
• the department concerns itself with permanent communication with the public and media (division 5.11.8).

As a rule, the Ministry of Nature Protection does not publish a report, as this is not required by law. However, one was published in 1994. Public authorities do not inform the public on the possibilities of giving information to international bodies in respect to non-conformity with international rules.

Methods of Dissemination

The typical method used by public authorities to inform the public about the state of environment, is through the announcements of public administrations in newspapers, on radio and television. There is no systematic practice of presenting substantiated and adequate information through the analysis of environmental data.

However, there are a few examples of dissemination of environmental information by public authorities. During the 1992-94 energy crisis in Armenia, the Ministry of Nature Protection actively disseminated information regarding areas in which tree felling was permitted, and which trees could be cut. The Ministry also presented an annual report concerning the condition of Sevan Lake (water level, fish reserves, quantity of water used for energy and agriculture etc.). The Nuclear Supervision Committee informs the public on the conditions of the nuclear power plant (levels of radiation in the neighborhood, quantity of electricity being produced, etc.).

Electronic Means of Dissemination

In Armenia there are no laws, governmental acts, ministerial instructions or governmental contracts containing the obligation to disseminate environmental information electronically. There is no Internet information available concerning Armenia's environment, although there are no laws prohibiting such dissemination.

Nongovernmental Centers

There are no local NGOs in Armenia to actively promote the distribution of environmental information. There are several special environmental monthly newspapers: "Ecolog" in Armenian, "Ecoskaner" in Russian, and "Environment and Law" which is published quarterly. The NGO center provides information about environmental NGOs active in Armenia, and also provides Internet sites for NGOs. EPAC has a library accessible to the public which contains laws, environmental magazines, newspapers and brochures.

Mechanisms to Ensure Flow of Information from the Private Sector to the Public Authorities or the Public

• Water Supply Technology in Production (WSTP);
• Maximum Allowed Emissions in the Atmosphere;
• Waste Utilization;
• Payment for the Utilization of Natural Resources and the Pollution of the Environment (PUNRE).

All users of natural resources are obliged to submit PUNRE reports in the manner prescribed by the law. The types of reports mentioned above are calculated on the basis of the reading of equipment which fixes the rate of environmental pollution. On the basis of this reading, polluters calculate their fees for environmental pollution and, after approval of the Ministry of Nature Protection, hand over returns to the Tax Inspection Office (Resolution June 25, 1997 No. 221).

Under the Administrative Code, officials who are responsible for filing reports (a chief executive officer and an accountant) can be penalized for late submissions, at a rate of drams 15,000 to 30,000 (USD 30-60).

Public Participation

Legislation on Public Participation

• disseminate information about their activity;
• create their own mass media;
• organize peaceful and unarmed meetings, rallies, demonstrations and processions;
• present and defend the NGO and NGO rights and rightful interests in other NGOs, in courts, public authority bodies and local self-governing bodies;
• carry out business activities by means of enterprises established by them;
• secure the rights of the citizens "to participate in drafting laws and governmental decisions on the protection of environment, and in the supervision of the implementation thereof" (Law of Nature Protection, 1991). However, there are no special procedural mechanisms for enforcement of this provision. The Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens permits citizens to submit their suggestions to the decisionmaking body. Any suggestion must be responded to within one month, and if it is not necessary to study additional circumstances, within 15 days. If it is necessary to instigate further research, to demand additional documents or to take other necessary action, the period for response can be extended by the head or deputyhead of the governmental body, for a period not exceeding one month.

Public Control of Decisionmaking

The constitution and the law prescribes no right to referendum on environmental issues. The right to referendum exists for the adoption of the constitution only, for making amendments and introducing changes to the constitution (Articles 111,112). A right to referendum for adoption of a law is also envisaged.

The constitution is adopted or amended through a referendum upon the initiative of the President of the Republic or the National Assembly.

The President of the Republic initiates a referendum at the proposal or upon the consent of the majority of the total number members of the National Assembly.

Upon the receipt of the draft constitution, or amendments to it, the President of the Republic may return the draft to the National Assembly, along with his/her objections and proposals, and require a new consideration. The President of the Republic submits for referendum the draft constitution or draft amendments proposed once again by at least the two-thirds vote of the total number of deputies within the period determined by the National Assembly.

Laws adopted by referendum shall be amended solely by referendum.

The draft put up for a referendum is considered adopted if more than half of the participants in the voting, but not less than one-third if the citizens on the voter list are in favor.

Referenda cannot be called on issues regarding the borders of the Republic of Armenia, the defense and security of the Republic, safeguarding public order, the measures on protection of health and security of the citizens, the execution of the obligations, following from international treaties, signed by the Republic of Armenia.

Only one referendum on the constitution was conducted in 1995. According to the Law, referenda are binding.

Unfortunately, it is not possible to hold referenda upon public initiative (Articles 111, 112).

Right to Initiative

The constitution states that "the right to initiate legislation in the National Assembly belongs to the deputies and the government" (Article 75).

The issue of a legislative act can be the subject of a referendum. Consequently, all of the above mentioned considerations are fully applicable in the case of legislative initiative. The Law on Local Self-Governance and the Presidential Decree on State Governing in the Provinces say nothing about public capacity to initiate rule-making at a local level. At the same time, the law does not regulate public capacity to initiate decisions with regard to the issue of permits, licenses and decisions regarding regional planning and projects concerning industrial sites. Moreover, these areas are under the exclusive power of local authorities. For instance, Division 1.15.7 of the Presidential Decree on State Governing in Provinces provides that the region's Governor carries out land portion transferring, as well as the preparation and issuing of title deeds (land ownership documents).

According to the Law on Environmental Impact Assessment (Article 6), the public is only informed about initiatives to realize planned activity. The public can express its opinion in the minutes of the relevant public hearing. The public has no right to initiate environmental expertise.

Public Shares Power to Decide

However, in practice the involvement of individuals and NGOs is restricted to participation in discussions on any particular draft. Thus, individuals and NGOs participate in lawmaking only up to the point that they have the right to express their comments and opinions. The legislature is able to adopt laws independently. Consequently, individuals or NGOs have no right of vote in lawmaking. The relevant bodies invite individuals and NGOs to take part in discussions of mutual interest issues when necessary.

Drafts of laws which are of particular interest to the life and activity of Armenian citizens are usually published in the mass media for open discussion. For example, the draft of the Civil Code of the Republic of Armenia.

The frequency of individual or NGO participation in the work of public authorities is not regulated by the legislation of Armenia. Individuals and NGOs do not have the right to adopt decisions on issues of the competence of public administration bodies, as this is the exclusive power of public authorities In practice the public never participate in policymaking.

As mentioned above, it is necessary to have a public hearing on EIA (the Law on Environmental Impact Assessment, Articles 6, 8, 10), but decisions made by the public are not binding for the authorities. The public is never invited to the discussion of issues concerning regional and territorial planning, sites and permits.

Account of Public Comments

Adequate Notification of the Public

One official procedure exists for all decisions, adopted by all central public authorities in Armenia, which is established by the Law on the Ways of Publication and Coming into Force of Laws and Regulations of October 4, 1996. According to this procedure, all laws and other acts of parliament, Decrees of the president, texts of international acts, acts of the constitutional court, resolutions and instructions of the government of normative character are published in "Guide to the Official Publication of the Republic of Armenia." Normative acts of ministries and departments are published in the "Collection of the Departmental Acts of the Republic of Armenia."

These periodicals are available to everybody as a means of informing individuals and NGOs in Armenia about decisions which have been adopted. In some cases, individuals and NGOs are notified about decisionmaking processes, but this happens very rarely and in general is not regulated by the legislation. There are several types of notification:

• notification without consequences (almost never);
• invitation to cooperate;
• expectation of support to improve the draft of a law. For example, EPAC constantly receives drafts of environmental laws from the Ministry of Nature Protection and the National Assembly. This is because EPAC is well known for its proposals and comments with reference to drafts of environmental laws.

Usually the standing parliamentary committee on nature protection forwards the draft laws to environmental NGOs. Four drafts of subsequently approved laws in the area of environment have so far been forwarded to EPAC.

Decisionmaking is Transparent

The procedure of decisionmaking processes is not defined by law. The issue of the transparency of the decisionmaking process is not discussed and, therefore, the public is unable to affect the decisionmaking process.

The public can find information about drafts of proposed laws through the "Guide to the Republic of Armenia," where the Resolutions of the National Assembly take into consideration certain drafts of laws. As mentioned above, the Law on Procedures for Consideration of Suggestions allows citizens to submit their comments to parliament, and all comments must be responded to. But in general, decisionmaking in legislating is not transparent, and the general public only become familiar with any particular law after it has been adopted.

According to the Law on Environmental Impact Assessment (Article 6), the public is informed of initiatives to realize planned projects within seven days. By means of a public hearing individuals can express their opinion, which is noted in the minutes, although, as mentioned above, any decisions made are not binding for the authorities.

The public has no means of obtaining information about decisionmaking processes with regard to permits, sites, international decisionmaking and management of environmental funds. For example, not only NGOs but also the Ministry of Nature Protection only became aware of the construction of a nuclear waste disposal site in the neighborhood of the Armenian nuclear power station four months after construction of the site had started. Also, it was only at this point that the Armenian public became aware of a contract between the Armenian and French Governments which provided a loan to Armenia for the construction of the site.

Openness of Parliamentary Committees

The Law on Standing Orders of the National Assembly does not provide the right of individuals or NGOs to participate in the sessions of parliament and parliamentary committees. In practice, it is possible for experts to be invited to meetings of parliamentary commissions, at which time they are able to express their opinion on the issue in question. In all such cases, it is the chairman of the commission who invites experts to attend.

Mechanisms to Influence Decisionmaking - Lobby Mechanisms

Capacity Building

There are no projects on public participation in the activities of public authorities in Armenia. Consequently, there is no funding by public authorities of any events focused on public participation in administrative activities. Such projects are usually supported by foreign funds (USAID, TACIS, etc.).

The Law does not have a mechanism to provide expert advise for the public or NGOs, although NGO charters can provide this possibility. For instance EPAC, according to its charter, provides free expert advise for the public and NGOs on environmental issues, trains law students, attorneys, judges, prosecutors, etc.

Government support for educational institutions and the media is not provided by either state or local budgets, or by the budgets of public institutional bodies.

Access to Justice

General Rights and Sources of Law

There is a provision in the constitution which asserts the superiority of the Law in the following areas: on the rights of owners; on the provision of state protection and reproduction of natural resources; on the right to receive and disseminate information; on the rights of citizens to legal protection in court.

Constitutional provisions have been used in arguments in cases brought before the courts. For example,on July 19, 1997, EPAC filed a lawsuit in the Spandarian district court of Yerevan on behalf of residents living in the district adjacent to the Victory park. EPAC demanded that the court recognize as void a decision of the Yerevan city mayor which had granted permission to a group public officials to build private houses in the park. In this case the provisions of Articles 6, 10 and 24 of the Constitution of the Republic of Armenia were used as arguments. Article 6 of the constitution ensures the supremacy of law in the Republic of Armenia. According to Article 10: "The state shall ensure the protection and reproduction of the environment and the rational utilization of natural resources." Under Article 24: "Everyone is entitled to freedom of speech, including the freedom to seek, receive and disseminate information and ideas through any medium of information, regardless of the state borders." In this example, the court ignored these arguments.

The average time for appealing administrative decisions is 10 days (Administrative Violations Code). The Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens requires that any application must be responded to within one month.

Administrative Standing

Remedies and Enforcement

In the case of public officials failing to implement their function as determined by the official instruction act, duties are transferred to another public official.

In the case of a public official implementing his/her duties in the wrong way, the actions of this public official can be appealed against in conformity with the Law on Procedures for Consideration of Suggestions, Applications and Grievances of the Citizens. This appeal is taken to a higher official or court, according to the Civil Procedural Code of Armenia. The higher official or court can force the public official to implement his/her duties in a correct and proper way.

Injunctive Relief

• the seizure of assets and money which belong to the defendant and are in his/her possession or in the possession of other persons;
• prohibiting the defendant from continuing certain actions;
• prohibiting others from giving assets to the defendant or implementing other obligations in relation to the defendant;
• suspension of the sale of the defendant's assets if this might be needed for the future enforcement of court decisions;
• suspension of exaction of financial transactions, seizing bank accounts and documents as sued against by the debtor.

The Court can impose several types of these provisional measures at the same time. However, their joint cost cannot be more than the cost of the case.

Enforcement of Judgements

Court Expenses/Litigation Expenses

• appeals against the denial of public information;
• challenges against governmental development projects;
• challenges against governmental law making or decisionmaking;
• challenges against EIA/ecological expertise decisions;
• court actions against polluters.

However, the judge can give advantage to a party in terms of court fees, depending on the financial condition of parties involved. The following options are at the judges discretion:

• to dismiss a party from paying court costs;
• to reduce the amount of a court cost;
• to reduce the rate of a court cost;
• to delay a maturity day.

In practice, judges never use the right to give advantage to a party, for the simple reason that judges themselves become liable for unpaid costs based on the Law on State Duty. Article 35 states: "In a case when an official responsible for collection of state taxes does not perform his/her obligation on time, it will be recovered from the official with an additional 1 percent fine for every day the tax is overdue." Theoretically, if the decision to give a waiver is wrongly motivated, the tax authority (as supervisory body in the collection of state tax) should force the judge to pay the tax. If the official does not pay, the tax authority should file a lawsuit against them.

There is a monthly meeting at the Ministry of Justice devoted to the collection of state taxes.

This law does not pertain to other court costs, for which judges do sometimes use their rights to give an advantage to a party (i.e. to dismiss costs, to reduce the amount of costs, etc.) depending on the financial situatition of the party involved.

In the event of winning a case, a plaintiff can recover all legal expenses that he/she has spent on the litigation. State duty, fees payable to witnesses and experts, fees concerning to the investigation of the incident site, fees incurred searching the defendant, fees concerning to execution of a judgment, may be recovered according to the Civil Procedure Code (Article 95). Attorney fees may also be recovered (Article 91).

The state duty for the implementation of legal proceedings at the court is equal to one minimum monthly salary (approximately USD 2). There are no bond requirements. The advocate fee for institution of legal proceedings is 50 minimum monthly salaries; the rest is subject to the agreement of the parties. Expert costs depend on circumstances and upon the discretion of the court.

Legal Assistance

Public Interest Environmental Lawyers

Commercial Lawyers

Ombudsman