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On 14 October 2020, the RA Administrative Court upheld HCA Vanadzor advocate Samson Galstyan’s claim regarding the restoration of a former NSS employee’s violated rights.
Former NSS employee A.K. has been a pensioner of the RF Federal Security Service since 2014. Before that, during 1973-2000, he held a high position in the NSS system. On 25 November 1998, a decision was made to lower his position. Based on the RF legislation requirements, there was a need to find out the reasons for his transfer to a lower position. In 2018 he applied to the NSS, asking to provide the copy of the decision made by the Minister of Internal Affairs and National Security in 1998. However, instead of the copy, he was provided with an extract, reasoning that the order contained confidential information.
In 2019, A.K. again applied to the NSS, asking to inform him on what grounds his position had been lowered per the above-mentioned order. It was clarified that in 1998, a service investigation was conducted regarding him. As a result of gross violations of professional requirements, it was suggested that he be released from the service. Nonetheless, taking into account his long-term working experience, he was appointed to a lower position.
Finding that his rights were violated, A.K. applied to the NA MP Edmon Marukyan and RA Prime Minister.
Factually, the NSS refused twice to solve the problem in a non-judicial manner and provide A.K. with the copies of the documents concerning him.
A.K. applied to HCA Vanadzor representative office in Yerevan to get legal aid in order to challenge his claim in court. In 2020, Samson Galstyan, advocate of the Yerevan office, filed a lawsuit with the RA Administrative Court claiming to oblige the NSS to provide copies of the above-mentioned documents.
Throughout the whole judicial process, the respondent NSS insisted that the claim was completely ungrounded and subject to refusal. While, in his claim, HCA Vanadzor advocate made a reference to the RA Constitution and a number of other laws, the legal analysis of which shows that the NSS had groundlessly refused its former employee.
Thus, S. Galstyan invoked a number of articles of the RA Constitution and RA Administrative Procedure Code and found that unfair treatment had been manifested towards A.K.. A state body can refuse to provide information only on the grounds and in cases stipulated by law.
The study of a number of provisions of the Law “On protection of personal data” makes it clear that the order on appointing A.K. to a lower position, service investigation materials and conclusions are all information immediately concerning A.K.. He had to have an objective opportunity to familiarize with those documents. The NSS did not take into account the essential condition that this information is confidential for a third party but not for the person whom it concerns. HCA Vanadzor advocate S. Galstyan claimed that the reasoning and refusals made by the NSS were groundless for the clear reason that the required information concerned A.K. and cannot be considered confidential. Based on the aforementioned, the advocate asked the court to uphold the claim and oblige the NSS to provide copies of the requested documents.
Hearing the explanations of the parties, analyzing and assessing all the proofs obtained during the case and with the inner conviction based on comprehensive, full and objective examination, the Administrative Court concluded that A.K.’s claim against the NSS is subject to being upheld with the following reasoning.
The Court recorded that A.K. applied with the same problem a few times and was refused, after which he had to protect his violated rights in court. Invoking the right to judicial protection and the right to a fair trial in the ECtHR judgments, the Court pointed out the right to a fair trial safeguarded by the Convention.
Besides, according to the RA Constitution and laws, an individual has the right to information. With regard to the confidentiality of the information, the RA Law “On freedom of information” provides that the provision of information is refused if it contains state, service, bank, trade secrets.
In case of the information requested by A.K., not only is there no state secret contained, but it also concerns immediately himself, therefore it should be open and available to him, especially given that all the terms of its confidentiality set by law have expired. The Court recorded that throughout the litigation, the respondent party did not present any proof on a state or service secret contained in the required document.
Based on the aforementioned, the Court made a judgment to uphold A.K.’s representative, HCA Vanadzor advocate Samson Galstyan’s claim and to oblige the NSS to provide copies of the required document and to levy AMD 4.000 from the NSS in favor of A.K. as compensation for the pre-paid state duty.