Court of Civil Appellation to deny the administration of justice

Court of Civil Appellation to deny the administration of justice

Court of Civil appelation of RA chaired by a single judge Kristine Mkoyan recently upheld the decision of the Administrative court (Chaired by Karine Baghdasaryan) on the request of an applicant to ‘’recognize the unlawfulness of the inaction of the RA Compulsory Service’’.

The administrative case under the number VD/0719/05/17 was filled to the Administrative court of Armenia and the latest returned the application stating by the decision that the grounds for returning of the application is the absence of a clearly defined subject of the request directed to the court, indicating "that, although the application consists the subject of the request, but is not clearly formulated which would allow the court to determine the merits of the claim by the court, thus this fact shall be construed as the absence of the same in the application”

The Ground of the appellation in the Court of Appeal of Armenia.

The decision of the Administrative Court of Armenia was appealed on the grounds of violations of Administrative Procedure Code, the Constitution of Armenia and Article 6 of European Convention on Human Rights.

It was once again stated that the subject of the request was clearly defined by the application which constituted of recognizing the unlawfulness of inaction of the Compulsory Service not to providing the required documents within the time prescribed by law, in our case total inaction was in place.

Trivia of the decision to deny the application was also affected by the fact as per the same decision of the Administrative court, it was provided the presence of the subject of the request, but somehow was interpreted by a judge not to be clearly formulated which would allow the court to determine the merits of the claim by the court.

The decisions of Appellation court omitted to provide relevant answers to numerous violations described by the application and merely came to state that the absence of ‘’prerequisites’’ in the application should have been deemed as proper justification to resign the justice. The decision is purely based on a finding that ‘’prerequisites are missing… ‘’

Essential questions raised by the appellate complaint.

Grounds to return the application are exhaustive, clearly defined by the Code of Administrative Justice of RA. Can we note that the Administrative court’s decision to return the application was based on these exhaustive grounds? – No, and the Court of Appeal has failed to provide an answer to such question.

Second essential statement- shall the judge be entitled to conduct ex-parte substantive examination of the application while there is no decesion on admission of the appllication and no court trial has been appointed? No, indeed, and the Court of Appeal has provided no answer to such question as well. What’s about the applicant’s right to participate in the court hearing and substantiate the grounds and merits of the application with relevant arguments?

Unfortunately Court of Civil appelation of RA chaired by a judge Christine Mkoyan failed to conduct appellation procedure on the merits of application merely re-stamping the decision of the Administrative court as to be consistent with acting regulations. Succinctly stated, the applicant was refused on administration of justice.

The system of Administrative Procedure in Armenia is based on the German model and as per the Article 5 of the Code of Administrative Procedure, Administrative courts determine the factual circumstances of the case ex officio ( "ex officio"):

Yet it is also worth to mention the decision of the Court of Cassation on 25 May 2016 by VD / 3540/05/14 stating following findings, "which occasionally, were not familiar" to judge Kristine Mkoyan. (Same findings in VD/4315/05/14 decision are also in place)

“In practice, there are cases, when individuals and legal entities seeking to restore their violated rights, do not choose the correct wording in respect of their claims stipulated by the Administrative Procedure Code. In these cases it’s the responsibility of the Court of assisting the applicants to amend the claim or replace to the proper one to ensure effective judicial protection of violated rights.

Court of Cassation considers it necessary to emphasize that the subjective right of choosing the proper claim in all cases belongs to the plaintiff, and if a court determines of imprecise or inaccurate claim filled by an applicant and the latest refuses to follow such suggestions, refuses to clarify or insists on specific kind of a claim, the court must administer substantive proceedings on the merits and grounds within the initial claim filled by the applicant”.