I think I shall not be mistaken to notice that every person at least once needed to apply to the relevant body, to obtain an archival reference in order to confirm a fact. Some of archival reference/information receivers often face the problem when the corresponding necessary data is missing, as a result of the fact that the responsible officials failed to pass the corresponding documents to the archive.
In case of liquidation of the legal entity or deregistration of the private entrepreneur, the competent person or the authorized representative has to provide a reference to the Agency of State Registration of Legal Entities, completed according to article 20 of the RA Law on Archive Keeping, which confirms that the archival documents were passed to the Local or State Archive.
Considering, that the National Archive of the RA is the state responsible authority for the archive; we logically assume that the above mentioned reference should be provided by this body. However, the RA Law on State Registration of Legal Entities and State Record of the Separated Unites of the Legal Entities, Companies and Individual Entrepreneurs (Articles 30, 50) for unknown reasons determines that the competent person or the authorized representative for liquidation or deregistration of the private entrepreneur shall provide a reference that “it has compiled about fulfillment” of the requirements pursuant to the “RA Law on Archive Keeping.”
Notably, the relevance of the information specified in the reference to the reality is not checked. Such operation may be carried out through information exchange between the two state bodies (State Register and National Archive).
As a result, the problem, which was described in the beginning of this article, arises: the person is unable to receive the necessary information.
Thus, we believe that the problem may be regulated through the reforms in the relevant laws.
In addition, the archival legislation has a number of other shortcomings as well.
Specifically, the RA Law on Archive Keeping lacks provision on liability of the responsible officials for violation of the archival legislation. The law regulates only the responsibilities of the physical and juridical persons. Such approach is not justified, because this area is mainly related to the state government employees and officials.
In addition, the RA legislation lacks the sanctions for breach of the requirements of the RA Law on Archive Keeping. This is in violation of the requirements of Article 68 of the RA Law on Legal Acts.
Thus, according to point 4 of the mentioned article, “If the fulfillment of a requirement of a norm provided for in a legal act may be achieved only by the adoption of another legal act provided for by that legal act, or its fulfillment is directly conditional upon the adoption of another legal act, the legal act shall be operative in respect of that norm upon the entry into force of the other appropriate legal act.”
This means that the requirements of the RA Law on Archive Keeping may be performed only through making amendments in the corresponding legal acts.
The current situation is a violation of the rules of legislative technique as well, because non-fulfillment of any obligation prescribed by law stipulates corresponding guarantee norm in order to ensure it. Otherwise, the legal norm will be declarative and shall not serve for its original purpose.
Thus, it is necessary to foresee administrative punishment for the above mentioned violations in the Republic of Armenia Draft Code on Administrative Offences.
Violation of the procedures of supplementation, registration, maintenance and use of archive documents by the physical and juridical persons may be considered as an administrative violation in addition to the same actions performed by the public officials.
As a result of the above mentioned legislative reforms it anticipated to protect the interests of the state in addition to the protection of the physical and juridical persons, because the proper organization of the archive keeping is of strategic importance for the state.
AYLA Member, Lawyer