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Positive changestowards ensuring the third pillar ofthe Aarhus Convention on access to justice

27.01.2017
The OSCE office in Yerevan under its policy has always been concerned to implement the pillars of the Aarhus Convention on access to environmental information, public participation in decision-making and access to justice in environmental matters.However, there are still a number of legislativegaps and need for formation of a practice, in order to ensureproper implementation ofpublic rights granted under the Convention. A vivid evidence of this are the decisions of the Aarhus Convention Compliance Committeewith regard tonon-compliance ofArmenia, which are primarily related to legislative gaps, lack of legal regulations and procedures. Two main issuescontained thereinare concerning to the NGOs legal subjectivity, in

accordance with theparagraph 2 ofArticle 9 ofthe Convention,to enableopportunity to representatives of the publicto review the decision adopted by independentandimpartial bodyaccording to thenational legislation.

With the supportof the OSCE Office in Yerevan, within the framework of “To assist the Government and civil society to solve environmental problems” project, in recent years the team of”Economic Analysis Center” NGO has worked on a number of legislative gaps served as a basis for the implementation of the Convention, develop appropriate mechanisms,submited legislative proposals.

Aiming to representthose importance, on January 17, “Public Awareness and Monitoring Center” NGO in collaboration withthe OSCE Office in Yerevan, has organized a meeting with Gevorg Danielyan,head of the expert group, Doctor of Legal Sciences,Professor.

As for the NGOs procedural legal subjectivity, Professor Gevorg Danielyan marked that they still 6 years ago, at a conference organized by the Center for Constitutional Rights expressed their unequivocal position that NGOs can freely operatein the field of environmental protection, protection of the rights of others.

“Our approach is that if the NGO raises issues of public importance in the environmental field, then should have the opportunity to apply to court.But the developments were somewhat contradictory.There were also lawyers, who found that it was not proper to giveNGOssuch status.Later, when the issue was set on effective implementation of the Aarhus Convention, it became clear that we’ve made a mistake in this matter and procedural legal personality should be entrusted to NGOs”-informed our interlocutor.

GevorgDanielyan welcomed the Government, in the person of the Ministry of Justice, the initiative through which the issue regardingto entrustprocedural legal personality to NGOs, it was positively resolvedin a positive way, although there are several formulations, norms, which are considered controversial by some NGOs and civic initiatives.

The team of “Center of Economic and Legal Analysis”NGO has an approach that if a human rights are granted to asserthis rights, in fact, the process is converted into a disguised obligation.

“You are well aware that the main challenge for a human, especially in the field of environmental protection, is to see his rights protected andsecure natural environment.Our basic position is that this should be dealt by the competent authorities, “the expert said to journalists participating in the meeting.

The new Constitution affirmed that the Ombudsman can carry out the protection of human rights not only in the relations with the state and local government agencies, but also with NGOs, but theissueof clarifying the sectors and organizationsentrusted to the law.

Under the Article 11 of draft of constitutional law on Ombudsman such a field isconsideredthe environment, with some reservations. “Violations must be massive and have great public importance.”

“These two formulated issuesoffer an opportunity to separate significant problems in this field and expect that to their solutions already can respond the Ombudsman.Here, again, there should be no need to apply, if the violation is recorded, the competent authorities must respond, “- mentioned the expert.

On the other hand in the Article 21 of the draft constitutional law on Ombudsmanon the recommendation of theabove mentioned team of experts a provision is included according to which the Ombudsman may also raise the issue of disciplinaryresponsibility of officials.

In particular, the team of “Center of Economic and Legal Analysis”NGOsuggested the following wording: “… Defender, if basis are available, suggests the competent authority or authorized officials of the state government or local self- governing institutions to prosecute the official person at whose action, inaction ordecision have been violated the rights and freedoms. ”

Accordingly, the competent authority or officialis obliged toreview the proposal and inform the Ombudsman withinthe prescribed period. The Ombudsman’s proposal isa ground to impose sanctions against the latter.
In the opinionof professor Danielyan, although this is not the final solution, works should be done in this direction, but is praiseworthythe fact that both the National Assembly and the Ombudsman’s Office carried out a consistent policy in this matter, as a result, we have an acceptable project.

Therefore, with regard to ensuring access to justice under the Aarhus Convention we can record a positive change in our country, some of them have already become a reality, while othersare still instage ofreading in the National Assembly.

Mary Chakryan
President of”Public Awareness and Monitoring Center” NGO
Translated by AnushBeybutyan