ArmInfo. The Republican Union of Employers of Armenia (RUEA) is deeply convinced that the purpose of the amendments to the Administrative Procedure Code of the Republic of Armenia initiated by the Ministry of Justice to review the procedure for appealing fines is to quickly replenish the state treasury. Meanwhile, its adoption will have irreversible negative consequences for Armenian business.
According to the justification for the document, the Ministry of Justice, in particular, proposes to consider Article 83 of the Administrative Procedure Code of the Republic of Armenia as invalid. The latter states that the acceptance of a claim for challenge suspends the execution of the contested administrative act until the entry into force of a judicial act resolving the case on the merits in this case. As stated by legal experts and business representatives, the draft is unconstitutional and violates the principle of the presumption of innocence. The Ministry of Justice countered by stating that the amendments they propose only provide for the introduction of an additional petition for the application of measures to secure the claim. That is, a citizen will have the opportunity to appeal administrative acts, with the only difference that, if necessary, he will have to justify along with his demand why the administrative act should be suspended and what consequences may occur for him if it is not suspended. In other words, in any case, the court, upon the plaintiff's petition, may consider and apply security for the claim. However, if the petition for the application of a measure to secure the claim is rejected and the administrative act is not suspended, the person brought to administrative responsibility will be required to pay the fine in the generally established manner, and after a court decision is issued in his favor and enters into legal force, file an application for the return of the amount of the fine paid and wait until the funds paid are returned to him.
Meanwhile, the Russian Union of Taxpayers notes that it is no secret that the most common violations in the sphere of economic activity are tax violations. If the fact of committing a tax violation is confirmed by a court decision 2 years after the administrative act was drawn up (statistics show that the average duration of a court case is 2 years), then taxpayers pay the state 27.4% of the unpaid tax amount annually. This amount is more than 2 times higher than the annual interest rates paid by the state on short-term government bonds issued by the state to finance the state budget deficit. From the point of view of this combination, there are no grounds for the Government to give preference to the payment of amounts of even legally drawn up administrative acts to the state budget before these acts become final. Therefore, if the Government aims to ensure the payment of these amounts to the state budget before administrative acts become final, regardless of the results of their appeal, then this:
1) gives grounds to believe that the state is trying to limit the judicial system from making decisions that entail the return of amounts paid to the state budget, 2) this directly means that the state has set itself the goal of taking interest-free money from businesses, directing it to budgetary purposes, and in the event that an administrative act is recognized as unfounded, simply returning this money without any additional financial obligations, which is an extremely unfair and unjustified approach. 3) until the issue of the required level of education of administrative body specialists and sufficient professional skills for drafting reasonable and legal administrative acts is resolved, legislative changes in this direction or proposals for possible improvement of legislative norms should be considered exclusively in the logic of maintaining the current approach to regulation>, the Union noted.
In addition, as the authors of the statement note, if the bill is adopted, the courts will simply not be able to make objective decisions on suspending the effect of an administrative act (satisfying a petition for securing a claim). This is due to the fact that the validity or invalidity of administrative acts is determined after the end of the trial, which, according to established practice, lasts for years. Meanwhile, a petition for securing a claim, according to the bill, must be considered within a period of no more than one week and, therefore, the decision made on the petition for securing a claim will not be based on objective judgments formed during the trial regarding the validity or invalidity of the administrative act itself. Consequently, business entities, in addition to presenting justifications for the invalidity of the administrative act itself, must also additionally justify what irreversible consequences may arise for them if the above-mentioned clearly invalid administrative act is not suspended. This is not only a violation of the presumption of innocence, but will also have a devastating impact on both the continuity of current economic activity (up to and including bankruptcy of the business if the court does not grant the petition with certain decisions) and on the adoption of decisions on the implementation of new business initiatives in the Republic of Armenia.
At the same time, the adoption of the bill, according to the RSRA, is fraught with the widespread initiation of criminal cases for tax violations. If at present law enforcement agencies show some restraint in initiating criminal cases on the basis of administrative acts that have not yet entered into legal force, then as a result of the adoption of the proposed amendment, in the event that the court does not satisfy the petition of an economic entity to suspend the effect of an administrative act, there is no doubt that the rejection of the petition will immediately be followed by the initiation of criminal cases to impose on the economic entity the obligation to pay the amount of the alleged violation, even if it subsequently turns out that the administrative act drawn up was completely incorrect.
The adoption of the draft contains serious corruption risks, the Union believes. If an economic entity has committed any violation, it will seek to reach an agreement with the relevant officials, since it knows that even if it appeals the administrative act, its effect will most likely not be suspended, and the amount recorded in the administrative act drawn up in connection with the alleged violation must be paid to the state budget initially, regardless of the results of the appeal of the administrative act in court. On the contrary, officials of administrative bodies will simply dictate their terms with the same threat in order to reach an agreement with the economic entity.
The adoption of the draft law also contains a great potential for arbitrary exercise by administrative bodies. Based on the urgent need to ensure the earliest possible receipt of budget revenues on time, administrative bodies may not pay special attention to the quality of administrative acts. The initiative will also further increase the burden on the courts.
, - the RSRA asks.
