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The Court of First Instance did not take into account all the factual circumstances of the case, the Appeal Court referred the case to be examined anew

September 8, 2021

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The Appeal Court partly upheld the application of HCA Vanadzor by overturning the judgement of the RA Court of First Instance on the decisions of Compulsory Enforcement Officer, and sent the case to be examined anew.  

On 15 May 2013, Helsinki Citizens’ Assembly-Vanadzor filed an application with the RA Administrative Court against the RA Ministry of Justice Compulsory Enforcement Service, claiming to  recognize partly invalid Lori Region Division Senior Compulsory Enforcement Officer Meruzhan Nalbandyan’s decisions on initiating enforcement proceedings, namely, in part the decisions levy AMD 5000 from HCA Vanadzor  per enforcement activity.  

 

On 29 March 2013, Lori Regional Division Compulsory Enforcement Officer Meruzhan Nalbandyan decided to levy AMD 16,000 state duty from HCA Vanadzor to the RA state budget. In 2013, he made another decision on initiating enforcement proceedings to levy AMD 5000 for each of the two enforcement activities, and also decided to impose attachment on movables of HCA Vanadzor.

 

On 9 April 2013, HCA Vanadzor made a transfer of respective payments of AMD 16000 and AMD 10000 to the account number of Lori Regional Department of the Compulsory Enforcement Service. However, since enforcement proceeding was not implemented, it is ungrounded to require payments of AMD 5000 by decisions on initiating enforcement proceeding, and thus, this part of the relevant decisions should be recognized invalid. In the event of requiring enforcement expenses, the enforcement officer should have specific activities done, such as paying the expert, finding, examining or imposing an attachment on the debtor’s property, etc., as mentioned in Article 66 of the RA Law. Hence, considering decision-making as enforcement activity and calculating AMD 5000 as cost of implementation of the activity is not in line with requirements of the Law.

 

On 17 July 2018, the RA Administrative Court decided that the claim was to be rejected, by concluding that in the frame of the enforcement proceedings challenged, the enforcement officer made expenses for organizing and conducting enforcement activities, in particular, expenses made to impose an attachment on the debtor’s movables, postal and office expenses. 

 

Helsinki Citizens’ Assembly-Vanadzor appealed the Court’s judgment. 

 

First, the enforcement officer should have done an enforcement activity; the list of enforcement activities is clearly set in the already-invoked Article 66 part 2. Whereas, Lori Regional Division Enforcement Officer M. Nalbandyan only made decisions on initiating enforcement proceedings, i.e., all the Enforcement Officer M. Nalbandyan did was make the decision. Concepts of “enforcement activity” and “decision” cannot be the same in the frame of this Law, and the decision-making itself cannot be viewed as an enforcement activity, therefore, decision-making itself does not constitute a ground for requiring an enforcement activity expense. 

 

This is nothing but a result of individual legal interpretation and perception of the decision-maker and the one considering the decision legitimate.

 

Besides, M. Nalbandyan neither presented a reasonable justification for viewing the decision as an enforcement activity and thus requiring an enforcement activity expense, nor submitted any legal and factual circumstances rejecting HCA Vanadzor legal interpretations. However, the Court, based on incomprehensible circumstances, ignored the plaintiff’s substantiations and, based on uncertain legal norms invoked by the defendant, rejected the claim.

 

Moreover, the principle of examining the case within a reasonable timeframe was not kept, either. HCA Vanadzor made the claim in 2013 and the Court made the judgment more than 5 years later, in 2018.

 

The Appeal Court states that by applying to Court with the claim of recognizing partly invalid the decisions on initiating enforcement proceedings, HCA Vanadzor sought to implement its right to judicial appeal; while the Court, during the preliminary court session - scheduled during the preparation of the case for trial -  should not have made a decision on setting trial for the administrative case, rather, it should have recommended changing the incorrect application type with the proper one. This means that the Appeal Court concludes that the Court of First Instance did not take into consideration the obligation to find out factual circumstances of the case, in particular, it did not perform its obligation to recommend the plaintiff to correct the incorrect claims of the application. Based on this, on 26 May 2021, the Appeal Court decided to overturn the judicial act and send the case to be examined anew. 

 

Thus, every decision should be clearly reasoned, factual circumstances of decisions should be clearly formulated. Besides, the Court has an obligation to take all procedural measures  and recommend the plaintiff to submit the proper type of application.

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