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The SCJ has reconsidered its solution regarding access to information: the law is no longer “obsolete” and “inapplicable”

29 October 2020
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After the Supreme Court of Justice (SCJ) found in a June ruling that the Law on Access to Information was “obsolete” and “inapplicable,” it reconsidered its opinion. On Wednesday, October 28, the SCJ issued a decision criticizing its own arguments, reversing the solution issued four months ago. According to the magistrates, the law continues to produce legal effects and must continue to benefit from the authority it had until now.

The decision of June 17 concerned a case on access to official information of the Public Services Agency (PSA). The case went to court after a person and the association Lawyers for Human Rights requested from PSA public data on the activity of the institution, and PSA refused to provide them. The case reached the Supreme Court of Justice, which found the action inadmissible. 

In the act issued then, the Extended Civil, Commercial and Administrative Litigation Panel stated, among other things, that the Law on Access to Information is “obsolete” and became “inapplicable” after the entry into force of the Administrative Code on April 1, 2019. Several lawyers criticized the magistrates’ findings, saying they were dangerous and could pose even more obstacles to obtaining information of public interest.

In July, two complaints were sent to the Constitutional Court in order to clarify the issue of the alleged “obsolescence” of the Law on Access to Information. The High Court has not yet examined the complaints.

Meanwhile, in similar cases concerning access to information, national courts have taken over and applied the findings of the SCJ. For example, on June 24, the Chisinau Court of Appeal issued a decision declaring inadmissible an action regarding request of information from the National Auto Transport Agency, invoking arguments taken from the decision of the Supreme Court of Justice.

The lawyer in the case, Vasili Ciuperca, filed an appeal against the decision of the appellate court, which brought the subject of the “obsolescence” of the law before the SCJ. On October 28, the Supreme Court issued a decision criticizing its own arguments. This time, the magistrates concluded that the Court of Appeal’s assertion regarding the obsolescence and inapplicability of the Law on Access to Information is unfounded and capable of “generating a significant regressive impact on the exercise and claim of the right of access to official information and/or information of public interest.”

According to lawyer Vasili Ciuperca, “in essence, the Supreme Court of Justice opposed the arguments retained by the Court of Appeal, which is an exact reflection of the SCJ’s own ruling in the June 17 decision.”

The magistrates of the Supreme Court ruled that the Law on Access to Information continues to produce legal effects against its subjects, not being obsolete and useless, including in the part of defending the right of access to information by filing an action directly in court.

At the same time, they mentioned that the law in question does not reflect an outdated reality, so it cannot be considered obsolete and, therefore, must continue to benefit from the authority conferred by the legislator. According to their decision, the declaration by the Court of Appeal of the action as inadmissible on the ground of non-compliance with the prior procedure is incorrect.

 

Sursa foto: Anticoruptie.md
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1Sesizarea nr. 118g din 17.07.2020
 Sesizarea nr. 117g din 16.07.2020