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An Attorney request: Practical implementation issues of the Article 18 paragraph 3 about ''the Law of Attorney'' of RA.

Weather an attorney is obliged to substantiate the grounds for the request

According to Article 18 paragraph 3 of ''The Law of Attorney'' of RA (June 06, 2016 editorial) an attorney has a right to:
3) apply state, local authorities, entrepreneurs, legal entities  (hereinafter referred to as economic entities) in the request of receiving necessary documents (information) for providing juridical assistance.

State and local authorities are obliged to provide the attorney with required documents (information) or their copies, in a ten days period, to the exclusion of some other act, provided by the law, regulating the activities of these bodies or if the required documents (information) contain secrets protected by the law. The refusal of providing documents (information) should be in written form and reasoned.
The Attorneys according to the reference to Article 18 paragraph 3 of ''The Law of Attorney'' of RA, send requests to state authorities and legal entities in order to fulfill one of their basic and most important function: evidence collecting process. It's no secret, that behind of any successful case is the quantity of evidence collected in favor of the client and the substantial expression of those proofs.
Unfortunately, not all employees of state agencies realize the importance and significance of the function of an attorney to collect evidence and often, instead of sending a proper response to the inquiry, satisfy themselves with nothing said letters or with the unsuccessful interpretations of the same law, which is mostly called to ensure the effectiveness of the activities of just an attorney.
However, I consider that an improper response of the inquiry sent by an attorney should lead to an unfavorable consequences to the corresponding people, to the future due to the positive precedent the protection of the same or another person by an attorney be carried out within the shortest periods, without bureaucratic red-tape and more effective. For the implementation of that is purpose an administrative case follows below, in the consequence of which two kind of cases, provided by the code of administrative procedure, were applied against the administrative body, which didn't gave a proper response to an attorney request.
1.A claim of recognition, which demands to admit unlawful , the unlawful behavior of action or inaction of the administrative body and
2.A claim of obligation, the scope of which is demanded to oblige the administrative body to provide the required information.


The inquiries raised by the claim in the Administrative Court of Appeal.
Attorney: Plaintiff  Sh. Petakchyan
Defendant: Intellectual Property Agency of the Ministry of Economy of RA
A brief description of the nature of the claim and the facts on which the demands are based.
01 February 2016 an attorney request was directed from the plaintiff to the defendant (Intellectual Property Agency of the Ministry of Economy of RA) with the following content. ''Guided by the Article 18  of ''The Law of Advocacy''  I request to provide information about No.12544 registrated lexical ''DOLE'' and No. 13301registrated combined ''DOLE'' trademarks, including,  weather ''Pasticheria Cake'' LLC is considered to be the holder of above mentioned marks at the date of inquiry.
Please provide two copies of the inquiry response.
Find attached a copy of the license of the activity of an attorney''.


22 February 2016 a response was received from the defendant by which the defendant refuses to provide the requested information, reasoning that ''the term of providing juridical assistance to any person, stated by the Article 18 paragraph 3 about ''the Law of Attorney'' of RA is not justified, so in that case the Article 18 of ''the Law of Attorney'' of RA is not applicable''. As well as, it is stated that the information about the termination of legal protection of trademarks with the registration cod No.12544 and 13301 have been published 25.01.2016 in N1 issue of ''Official gazette of Industrial Property'', which can be accessed at the agency's website: www.aipa.am.
The arguments supporting the requirements
The defendant, at the result of a wrong interpretation, broke the Article 18 paragraph 3 about ''the Law of Attorney'' of RA baseless restricting the supply of information required by an attorney.
According to Article 18 paragraph 3 of ''The Law of Attorney'' of RA (June 06, 2016 editorial) an attorney has a right to:
3) apply state, local authorities, entrepreneurs, legal entities  (hereinafter referred to as economic entities) in the request of receiving necessary documents (information) for providing juridical assistance. State and local authorities are obliged to provide an attorney with required documents (information) or their copies, in a ten days period, to the exclusion of some other act provided by the law regulating the activities of these bodies or if the required documents (information) contain secrets protected by the law. The refusal of providing documents (information) should be in written form and reasoned. According to the same paragraph, a fee can be charged from an attorney for the supply of documents (information) or their copies, which can't exceed the expense of it's preparation, to the exclusion of some other sum provided by the law.
The defendant has also broken the commitment, prescribed in the Article 18 paragraph 3 of ''The Law of Attorney'' of RA, to provide required information in a ten days time, especially, the request has been handed 01 February 2016, but the defendant handed the answer of the request over the postal service 20 February 2016, which was received 22 February 2016.
Rejecting to provide a comprehensive answer with the attorney request, the defendant stated, that ''the stipulation of providing juridical assistance to any person, stated in the Article 18 paragraph 3 of ''The Law of Attorney'' of RA, has not been substantiated''.
It is not clear what meaning contains itself the word combination: ''the substantiation of the stipulation of providing juridical assistance'', stated in the ground of the dismissal, but it can be presumed, that the provision of information has been dismissed, may be for the reason, that there had not been mentioned the case and person being provided with juridical assistance, for which the information is being required and in defendant's conviction  the absence of notes about it is a ground of dismissal of the attorney request and for sending an answer double limit late.
If the dismissal is grounded for this presumption it means it's unsubstantiated for these reasons:


1.Weather by rejecting to provide the required information, within the time and conditions prescribed by the law, the defendant followed one of the grounds stated by the law of dismissing the request.


The grounds of dismissal are prescribed exhaustive by the law and a broad interpretation is not allowed. According to the paragraph 3 of the same article, the administrative body is obliged to provide the required information in all cases except the following 2 cases:
1.It is stipulated in the law regulating the scope of that body.
2.It is considered to be a secret stated by the law.
That is, as a ground of dismissal, exhaustive restrictions were prescribed by the law aiming to prevent the possible manifestations of abuses by persons performing administration and by other subjects, especially those of crating improper obstacles during the activity of an attorney, moreover, the legislature set maximum dates to answer an attorney request, taking into account, that the laps of deadlines can lead to heavy consequences for the client of an attorney.


2. Whether the phrase '' for giving juridical assistance'' stated in the Article 18 paragraph 3 of ''The Law of Attorney'' of RA should be interpreted as an obligation for the attorney to mention in the request the purpose provided by the law, for what the attorney request is being done, or it should be viewed in the context of general norms, which aims to emphasize the aim of providing required information, and mostly the significance: as it's needed for juridical assistance.


According to the Article 83.5 of the Constitution of RA, the issues below shall be set forth exclusively by the law of the Republic of Armenia: 1) terms and procedures for the exercise and protection of the rights by natural persons and legal entities;
2) restrictions on the rights and freedoms of natural persons and legal entities, their obligations, as well as forms, extent and procedure for liability thereof, means of compulsion and the procedure for such, types, amounts and procedures for the payment of taxes, duties and other binding fees paid by natural persons and legal entities.
That's it, in order the mentioned phrase be interpreted as a subsidiary obligation being added to the information of the inquiry, it's necessary to be stated directly by the law, such as ''an attorney should substantiate the request''. To advert the purpose of the inquiry contradicts the law itself.  As an example of this, any state or administrative body is called for providing the fulfillment of the function of settlement of public relations existing in some field, for example, the agency is called for the protection of the copyright. But while doing it's functions the body is not obliged to mention that it acts, as the scope of it is the protection of copyright, or one of the functions of police is the protection of the legality, but in the request of information from the citizens or from the legal entities, there is no reference that the request is for the protection of the legality, as it's in itself is a function for the latter, stated by the law.

3.Whether an attorney is obliged to reveal  the personal data about his/her client,  before the third person, in order to get an answer of the attorney request.


An attorney has no obligation to reveal the personal data about his/her client,  before the third person, as well as,  he is obliged not to publicize the attorney-client privilege  according to the Article 19 paragraph 3 of the same law. According to ''the Law of Attorney'' of RA,''  those information and proofs are considered to be attorney-client privilege, which were given an attorney by the person seeking juridical assistance, the nature and content of  the consultation of an attorney, as well as, those information and proofs  (materials, records), which  an attorney acquired himself  during the advocacy''. Although the fact of client-attorney relation can itself not be considered as an attorney secret, however it is considered to be an attorney-client privilege, in the case of a special instruction of keeping secret the fact of those relations. Particularly in this case an attorney, according to the contract signed between the client and the latter, has been obliged to keep secret the data about the client, receiving juridical assistance, the identity of the latter, and refrain from reveling it in any way without the agreement of the latter. The existence of secrecy, in the transfer of data between an attorney and client, is an numerous precedents established right by Human Rights European Court, a right for the person getting juridical assistance, and an obligation for the attorney, a direct expression of the right, provided by the article 8 of  the Convention.
Any restriction of this right is possible only in unique cases prescribed by the law or only in the case of existence of a consent treaty by the client.
But to give a broad interpretation of it, that’s it, an attorney should mention for whom the information is being used, is not substantiated by any juridical interpretation.


4.According to the Article 9 of ‘’the Law of on Freedom of Information’’ of RA ‘’The applicant is not obliged to substantiate the request’’’’.


For the person of having no category of an attorney, to send a written request of the required information, for getting an information from the administrative body, is enough and in this case the Article 9 of ‘’the Law on Freedom of Information’’ of RA is applicable, in the case of which, a person is not obliged to substantiate the request. If  the identical articles ,of ''The law of Attorney'' of RA and ''the Law on Freedom of Information'' of RA, of getting information, were compared, it would be apparent, that the corresponding article of ''the Law of Attorney'' doesn’t give any substantial privilege or advantage to an attorney in comparison with other similar legal regulations, and in both cases an attorney and the person having no category of an attorney can request and get almost equivalent information, as a law  protecting activity, comparatively favorable conditions should be provided an attorney in the process of collecting information and testimony, thus providing the opportunity of  providing required counterbalances, in a number of  legal relations, by an attorney. Although such essential privileges are not envisaged, but to suggest, that in this case the rights of an attorney are more limited than of a person of having no category of an attorney, at least is out of any logic. In other words, it’s beyond doubt that in the process of getting information (collecting evidence) by any law can be defined better conditions for people having no category, than for an attorney performing attorney functions. A citizen has a right to apply and get required information without any reasoning, but an attorney is obliged to substantiate the aim of an attorney request. But if such a restriction exists by the estimation of the court, then at least the problem of discussing unconstitutional matter of the norm exists too.
The defendant dismissed 27, 27.1 Articles of the Constitution of RA, 6, 9 Articles of ‘’The Law on Freedom of Information’’ were not applied.
The defendant dismissed 18 Article of The Constitution of RA, according to which:
Everyone shall be entitled to effective legal remedies to protect his/her rights and freedoms before judicial as well as other public bodies.
According to 19 Article of the Constitution of RA: Everyone shall have a right to restore his/her violated rights, and to reveal the grounds of the charge against him/her in a fair public hearing under the equal protection of the law and fulfilling all the demands of justice by an independent and impartial court within a reasonable time”.
According to the Article 27, paragraph 2 of the Constitution of RA: Everyone shall have the right to freedom of expression including freedom to search for, receive and impart information and ideas by any means of information regardless of the state frontiers.
According to 27Article of the Constitution of RA:Freedom of mass media and other means of mass information shall be guaranteed. The accessibility of the public information is one of the essential preconditions of transparency of the state management responsible in front of democracy and public.
Except for the above mentioned reasons, the Defendant, considered to be an administrative body, should have guided by the Article 5 of '' The Principles of Administration and Administrative Proceedings'' of the law of RA, and shouldn't burden with obligations or dismissals of providing any information, only for keeping the formal claims. Thus, guiding by ''the Law on Freedom of Information'' of RA to provide the required information.
The Article 8 ''Limitations on Freedom of Information'' of ''The Law on Freedom of Information'' of RA restricts the accessibility of information, which contains a state, official, bank or trade secret. According to the Article 9 of ''The Law on Freedom of Information'' the Applicant does not have to justify the inquiry.
Except for that, as the Constitutional Court of RA, so the Human Rights European Court , referring to the standards of legal restrictions of the freedom of searching and getting information, expressed a legal position about the thing that, firstly  the legal  bases of restriction of that freedom should be complied the qualities of accessibility and predictability. The importance of these requirements, concerning to the legal basis of the restriction, is being more stressed, when the interference with this freedom manifests in the way of a criminal charge of the person spreading information.
According to the Article 27, paragraph 1 of the Constitution of RA: Everyone shall have the right to freedom of expression including freedom to search for, receive and impart information and ideas by any means of information regardless of the state frontiers.
According to the Article 6 paragraph 1 of ''The Freedom of Information'' of the law of RA:
1. Everyone has the right to address an inquiry to information holder to get acquainted with and/or get the information sought by him as defined by the law.
According to the Article 6 of ''On Freedom of Information'' of the law of RA;
Information- records/data of facts, people, subjects, events, phenomena, processes that are received and formed as defined by legislation, despite of the way those are possessed or their material carrier (electronic or hard copy documents, records, videos, films, photos, drawings, schemes, notes, maps, etc.)
It follows from the discussion of the mentioned norms, that the right of everyone, of addressing an inquiry to information holder and getting  the information sought by him has been guaranteed by the legislator. Moreover, a proper, complete and comprehensive answer should be given to the information seeker.

 
marked The claim of this case has been partly accepted for the procedure and partly rejected: By the Court decision partly has been rejected the part of the case concerning to the actions or inactions of the Defendant: the Intellectual Property Agency of the Ministry of Economy, by which within the maximum period prescribed by the law, an comprehensive and complete answer has not given about the requested information.


marked An appeal has been submitted to the Administrative Court of Appeal:  to contest the rejection of the partial admissibility of the claim (for the part of applying a recognition claim) for eliminating the decision of the Administrative Court.


marked Yet no court proceeding has been exercised by the Administrative Court for this cases, the decision of which will follow later.


 
    

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