The Judicial and Legal Reform Strategy envisages increasing the efficiency of both administrative justice and administrative proceedings. The strategy envisages the establishment of the Administrative Chamber of the Court of Cassation, the expansion of the scope of administrative bodies and disputing their actions, the increase of the efficiency of appealing administrative acts, etc.

Iravaban.net spoke on the topic with advocate Tamara Shakaryan, Candidate of Juridical Sciences, Associate Professor, Lecturer of the RA Academy of Management, French University in Armenia, Armenian-Russian (Slavonic) University.

– The Judicial and Legal Reform Strategy 2019-2023 envisages the abolition of the administrative procedural order for challenging the decisions, actions and inaction of the administration penitentiary institution. Won’t this change contribute to the increase of violations allowed by the administration? What do you think about this?

– I do not think that such a thing can be envisaged and limit the possibility of appeal. However, if the issue is the clarification of the jurisdiction of the cases related to the actions (inaction) of the officials of the penitentiary institution, it is necessary, and it also issues from the decision of the Constitutional Court No. SDO-1439, according to which the legal regulations on the judicial protection of the convict’s rights may be envisaged within the framework of administrative proceedings, as well as criminal proceedings or other legislation. Therefore, before overcoming the existing systemic legal uncertainty by the National Assembly, cases related to appeals against the actions (inaction) of penitentiary officials are subject to review by the RA Administrative Court.

– The administrative court is one of the most overburdened. Will the application of written and simplified procedures in administrative proceedings have a significant impact on the prompt resolution of cases and the reduction of the burden on judges?

– I think so, because a large amount of judicial resources are used on cases in which the oral trial is mostly formal, thus affecting the provision of examination of complex cases within a reasonable time. For example, in the case of appeals against traffic violations, non-payment of parking fees (so-called red lines), the plaintiff or his representative, as a rule, do not appear in court, so there is no need for an oral hearing. By the way, the introduction of simplified procedures will also be aimed at implementing the principle of procedural economy.

It should be noted that such a legislative change was made in May last year, establishing a written procedure for the investigation of cases on administrative offenses provided for in some articles of the Code of Administrative Offenses of the Republic of Armenia (in terms of Traffic Rules), which cannot but contribute to relieving workload of the court.

– On 9 February, the National Assembly adopted in the second reading and in full the amendments envisaged by the Judicial Code, by which a new chamber was created in the court of third instance. What impact will the establishment of an Administrative Chamber in the Court of Cassation have on administrative justice?

-Perhaps it was a slightly belated but welcomed legislative initiative, as without the relevant specialized chamber in the Court of Cassation the efficiency of reviewing the judicial acts of the Court of Appeal cannot be ensured, as the presence of judges with 2 or 3 administrative specializations in civil and administrative chambers is not a sufficient guarantee for effective and specialized investigation of the case in the field of justice.

I think that the establishment of the Administrative Chamber will contribute to the relieving of work in the Court of Cassation, as well as the clear expression of the specialization factor in all instances will ensure the effectiveness of the exercise of the right to judicial protection in administrative justice.

– The New Code on Administrative Violations was not adopted, although it is considered a solution to the issue. The current Code was adopted in 1985. What problems does this cause in practice? In your opinion, why is the process of having a new code taking so long?

– I have spoken many times on various platforms about the need to adopt the new Code on Administrative Offenses and the many shortcomings in the current Code. Almost every year, judicial reform strategies mention the urgency and need to adopt a new code, but this initiative has not been completed since 2010. In 2014, a new draft was developed with the support of the CoE Yerevan Office, which was highly praised by international experts, but to date no steps have been taken to adopt it.

Moreover, the new Criminal Code was adopted without the adoption of the new Code on Administrative Offenses, although the reason for adopting them together was presented to the Ministry of Justice, on the grounds that the two drafts were developed simultaneously and everything was done to avoid contradictions and omissions.

As for the delay in not adopting it, I think it is a complex, multifaceted and extensive draft law, the adoption of which lacks the will of the entities with the right of initiative, I do not see any other obstacles.

– One of the directions of this goal fixed by the strategy is to increase the efficiency of appealing administrative acts. It is mentioned that, for example, it will be possible to limit the possibility of appealing the decisions of the RA Administrative Court in those cases, by which the amount of the penalty applied by the disputed administrative acts does not exceed twice the minimum salary.

Do you see a problem here? Or do you have another way to solve the problem, which will increase the efficiency of appealing administrative acts?

– You know, the purpose of increasing the efficiency of appealing administrative acts in an administrative manner is incomprehensible in the context of envisaging restrictions on the right to judicial protection, perhaps on the grounds that, first of all, there is no proper quality of administration in Armenia. Therefore, first of all, it is necessary to improve the quality of administration in Armenia, and when you have a high quality of administration, then we can initiate appeal restrictions to alleviate the workload of the courts, guaranteeing a proper review of administrative acts for a person.

As for the restriction of the possibility to appeal the decisions of the administrative court, I think that if there is no problem with the restriction of a person’s right to judicial protection, it can be applied only to administrative bodies.

In this context, it is also worth remembering that the burden of the court was certainly influenced by the increase of the state duty, or, for example, the imposition of the state duty in lawsuits filed against administrative acts of the traffic police instead of being exempted from the former state duty. However, it had a direct impact on a person’s right to judicial protection, also without ensuring proper quality of administration. Therefore, in those cases, the law should have provided for the possibility of deferring the state duty.

So, the efficiency of appealing administrative acts will increase only with proper administration. For example, during a state of emergency, we witnessed a number of shortcomings in the activities of inspectors, which may or might not have occurred if appropriate instructions or guidelines on the application of appropriate norms had been compiled, thus ensuring uniform administrative practice for violations during the state of emergency.

Or for years we have witnessed the disregard of positions expressed in the acts of administrative courts, for example, the violation of seat belts while traveling, talking on the phone, as a rule, almost all administrative acts are declared invalid. However, the administrative bodies, without appealing to the higher court, that is, by tacitly accepting those positions, continue to adopt the same working style and administrative acts on the same grounds.

Appropriate training courses will contribute to the improvement of the proper quality of administration, in particular, the improvement of practical skills, the jointly organized internal administration of the superior administrative bodies. In particular, in the form of the adoption of necessary instructions, guidelines, which may stipulate a requirement to be guided by the positions of judicial acts made by the administrative court, as well as the definition of grounds for disciplinary liability of officials in case of invalidation of administrative acts, etc.