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Salus populi suprema lex . Marcus Tullius Cicero

Case filed by EACLA to the Ministry of Defense of Ukraine because of failure to establish public information accounting system: Decision of the Court of the First Instance
Monday, 09 September 2013 20:29

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District Administrative Court of Kyiv by its Resolution from 14.03.2013, rejected the claims of the suit of NGO Expert Advisory Center "Legal Analytics" (EACLA, Plaintiff ) to the Ministry of Defense of Ukraine (Ministry, Defendant) in connection with failure to create public information accounting system. This system was to be established until February 21, 2012 according to the Law of Ukraine "On access to public information" and the Resolution of the Cabinet of Ministers “Issues of public information accounting system".

Thus the panel of judges denied Plaintiff's claims, which related to the recognition of illegal of the omission of the Ministry in connection with failure to create and provide access to public information accounting system, recognition of illegal providing by the Ministry of misleading information regarding actions taken to develop public information accounting system, and obligation of the Ministry to take adequate measures for the establishment, functioning and access to public information accounting system.

In connection with recognition of illegal of the omission of the Ministry of Defense in the sphere of failure to create and non-functioning of public information accounting system the Court of the First instance indicated that “the Ministry has public information accounting system on its official website (www.mil.gov.ua) on the link "Access to public Information" - "public information accounting system”, so there are no legal grounds to state that the defendant has not fulfilled the requirements of the relevant legislation.” At the same time it should be noted that the link “public information accounting system”, referred to in the court decision, is empty, and the court did not take this fact into consideration. During the period of time since 2012 and until now this link does not include any information accept of notification that "Information is currently updated".

So, the findings of the Court of the First Instance on availability of public information accounting system to the public do not reflect the reality.

The establishment, operation and maintenance of public information accounting system, and providing access to the accounting system is responsibility of the Defendant, (and it was not argued by the Court), and illegal omission of the Ministry of Defense of Ukraine in connection with failure to create public information accounting system has durable character as it lasts since 2012 until now. Therefore the defendant should be obliged to take reasonable steps to create, and provide access to its public information accounting system.

Because of unavailability of public information accounting system of the defendant throughout 2012 and 2013 we can talk about the violation of the Plaintiff's right on access to public information, whereas under Part 4 of Article 18 of the Law of Ukraine "On Access to Public Information" information providers are responsible for providing access to the accounting system in accordance with the law. Thus, the EACLA appealed the decision of the First instance court.

The appeal proceeding was opened on the 17th of June, 2013 in Kyiv Administrative Court of Appeal, and the first hearing in the appeal court is scheduled for September, 10, 2013.