In 2012 the civil society, the Central Election Committee and the government undertook legislative initiatives some of which resulted in changes in statutory laws regulating the media activities whereas some other initiatives had no success because they were either rejected by the National Parliament or were not included in the agenda of the Parliament despite the fact that they had been submitted to the Parliament in the beginning of this year and it’s already a significantly long time now since the drafts have been in circulation in the Parliament.
On the day of the parliamentary elections several instances of physical assaults were recorded against the journalists in the polling stations in respect of which the police demonstrated inaction by failure of instituting criminal proceedings or by discontinuing the instituted proceedings after certain period of time on the basis of the lack of offense or lack of criminal behavior in the actions of the offender.
Violations of the right to access to information were recorded by some public bodies and non-state trade companies. In the framework of administrative and judicial proceedings, both the public bodies and the courts continued interpreting the definition of the concept of “trade secret” overly broadly as a result of which the media outlets and some other human rights organizations defending media rights were deprived of the access to information.
The only area where steady positive developments continue is the judicial practice of defamation and libel lawsuits in which the courts consistently refuse the disproportionally high and unjustified damage claims jeopardizing media’s right to impart information which is regarded by the courts as a public interest issue.
Legislative initiates and amendments
In 2012 human rights groups, government bodies and the Central Electoral Commission undertook some legislative initiatives concerning media freedom and the freedom of journalists. In particular, it is worth noting the decision of 31 January 2012 of the Central Electoral Commission (CEC) about amending the regulations of accreditation of the journalists covering elections, and under the decision it was presumed to reject or terminate the accreditation of those journalists who had been convicted of premeditated criminal offense and their criminal records had not been removed or quashed at that time, including those who had disseminated untrue information about the activities of the electoral commissions or their officials and where those facts had been established by court verdict. It was clear that the mentioned amendments defined such limitations of the journalistic freedom that they raised human rights issues, and therefore those limitations could not have been stipulated by the CEC and instead they should have been stipulated by statutory law adopted by the National Parliament. After several media organizations and human rights defenders had expressed concerns over the above decision, on March 15 the CEC had to abolish the above constraining regulations of the accreditation procedure.
It is also worth noting the fact of adoption by the National Parliament on March 21 of the “Law on Legal Regime of the State of Emergency”. The adoption of such law was justified under Constitution, in particular it emanated from the standpoint of the Constitutional requirement that the fundamental rights and freedoms of an individual be limited in the order prescribed by “law”. The article 7 of the prescribes the exhaustive list of limitations, the paragraph 12 of which prescribes the “limitation of the right to free speech, in particular, prohibition of certain publications, programs through mass media”. In combination with this law, the article 182.2 of the “Law on Administrative Violations” was amended (violation of legal regime of the state of emergency) to define imposition of fine in the amount of five to eight hundred times of the minimum salary for dissemination of prohibited publications or programs via mass media.
A matter of special interest was the draft law on “Amendments in the Law on Television and Radio of RA” prepared jointly by three journalistic organizations, the Yerevan Press Club, the Internews and the Committee of Protection of Freedom of Speech. On March 19 the Standing Committee on Science, Education, Culture, Youth and Sport of the National Parliament put the draft law into circulation. The proposed changes in the law were justified after incorporation of digital broadcasting technologies in the television and radio broadcasting sphere without first having resolved those main complex issues which would ensure the expected results of the incorporation of digital broadcasting and would address the concerns that had been raised by journalistic community, the wide public and the international organizations. Before the draft law was presented to the above committee, it was discussed with the OSCE and COE experts and then it was posted for public discussions within the framework of the “Forum of Media Freedom” organized by the Ombudsman’s office which had 100 participants. The main changes proposed by the draft are aimed at adopting proper regulatory statutory framework for digitized broadcasting, as well as at enhancing the supervisory authorities of the Television and Radio National Commission (TRNC) over the public television and radio companies. It has to be noted that any supervisory authority by the TRNC over the public television and radio companies may bring to conflicts between the two regulatory bodies, the TRNC from the one side and the Council of Public TV and Radio of Armenia from the other side since these two bodies regulate two distinct areas. It is not clear whether such regulatory mechanism will be effective in practice. At present the draft law is still in circulation and it has not been included in the agenda of parliamentary sessions.
Another draft law about amending the article 1087.1 of the Civil Code authored by Karen Mezhlumyan and put into circulation by a former member of the National Parliament Karen Dallakyan is still in circulation. They propose by the draft to add in the disposition of the above article non-public statements, as well as such concepts of defamatory and insulting speech as “improper” and “clearly false” statements. It is further proposed by the draft to lower the civil damage compensation ceiling to 500,000 drams for defamation and 800,000 for insult. The inclusion of the draft in the agenda was postponed in 06/02/2012 for 60 days. At present the draft law is still in circulation.
In 2012 incidents of physical assaults were recorded against journalists during parliamentary elections and the elections of local self-governing bodies. As a rule, in those cases the journalists filed police report on the facts of violence to district police stations and the police opened criminal cases but after certain period of time the police closed the criminal cases for lack of a crime or a criminal offense. We present hereby some examples. On May 5 the journalist of Gala TV Naira Nalbandyan was physically assaulted in no. 33 election district. She reported the incident to the department of police investigation of the Shirak district and the police opened a criminal case on the basis of the report. However, on May 16 the police took a decision to close the criminal case for lack of elements of crime. A similar approach was demonstrated in respect of the journalist Elina Chilingaryan from the “Freedom” radio station. She was video shooting the outside of the polling station and the group of young men who were crowded at the entrance of the station and a young man from the group approached her and hit her two times to her hands by attempting to grab the camera. The journalist could hardly manage to save the camera after which she left the area. Elina Chilingaryan filed a report to the police about the incident on the grounds of the part 1 of the article 164 of the Criminal Code. Despite the fact that the police carried out formal investigation and collected materials for the criminal case, on July 13 it took a decision to discontinuing the investigation on the following grounds: “During video filming, Elina Chilingaryan did not present herself as a journalist, she did not bear an identification mark as a journalist, her camera also didn’t have an identification mark. Under such circumstances, on the basis of the assessment of the evidence obtained in the course of the investigation, it is to be concluded that H. Hambarzumyan did not realize and couldn’t have realized that Elina Chilingaryan was a journalist and that she was acting in her professional capacity. The determination of H. Hambardzumyan was not directed to beating Chilingaryan, causing her bodily injuries or physical pain. In order to avoid being video filmed, he hit on the hands of the video cameraman as a result of which the camera fell on the ground. It was only Elina Chilingaryan who had testified that a second person had hit on her hands. No other evidence was obtained in respect of that episode, thus, the crime event was not confirmed”.
A criminal case was instituted under paragraphs 3 and 5 of part 2 of the article 149 of the Criminal Code for preventing the performance of professional duties of the journalist of “Maxinfo” informational-analytical news agency Karen Aleqyan on the facts of hindering the representative of media to perform his/her functions by a group of persons accompanied with violence. However, as of the moment of writing this report the police has not brought any charges against any person and nor has it conducted any investigative or procedural measures in the framework of the instituted criminal case.
The above described situations raise an issue of failure by the Republic of Armenia of performing its positive obligations stipulated under the RA Constitution and the European Convention of Human Rights (hereafter Convention). A number of provisions of the Constitution and the Convention oblige the Member States to take positive steps for protecting the rights of citizens under their jurisdiction regardless of the fact whether the interference in the rights of the citizen was demonstrated by an ordinary citizen or a state officer or a state body. Not only does the State (meaning all officers or bodies acting on behalf of the State) have an obligation to abstain from committal of certain actions (negative obligation), for example, of ill-treating a person, but it also has a positive obligation to undertake an official investigation if such incident happens. It has to be noted that the investigation shall not be of formal nature but it has to lead to the identification of those who are guilty and bring them to justice and assign a relevant punishment against them. Thus, the substantive aspect of prohibition of ill-treatment against a person involves also a procedural component under which it is presumed that the State has to undertake and ensure an effective investigation on the fact of violence.
The idea of the positive obligation has a special importance in respect of the freedom of speech of the media and the journalists. In considering that the freedom of speech is one of the important pre-conditions of democracy, the effective realization of this right depends not only on the negative obligation of the state bodies and the public officials not to interfere in the right to freedom of speech of journalists and the media, but also on the positive obligation of the State to ensure that the above right is effectively implemented. Among such steps are, for example, the measures for protecting the media outlets and their staff from violence and threats of violence and, if need be, undertaking preventive measures and leading effective investigations on the facts of violence or threats of use of violence. The Parliamentary Assembly of the Council of Europe has also referred to this issue in its Resolution no. 1535 by stating that the States bear a positive obligation to investigate any violence against journalists, including threats and that this obligation stems from “the individual journalist’s rights under the Convention as well as from the necessity for any democracy to have functioning media free from intimidation and political threats. Where attacks against journalists can be carried out with impunity, democracy and the rule of law suffer”. The Court of Cassation of Armenia has also adopted the idea of the positive obligation of the State to take measures for protecting the physical integrity of a person. The court, by referring to the case law of the European Court of Human Rights, has defined that the right to respect of private life under article 8 of the Convention involves also “the physical and psychological integrity of a person. Under Article 8 the States have a duty to protect physical and moral integrity of an individual from other persons. To that end they are to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals”.
In the situations described above the journalists were the victims of violence which was obviously related to the exercise by them of their professional duties; in this case their functions of covering the elections. The violence was exercised by persons who were not public officers. Consequently, the issues concerning the interference in the rights and the violations of the rights must be examined under framework of positive obligations stipulated under articles 23 (right to respect to private life) and article 27 (freedom of speech) of the Constitution and accordingly the articles 8 and 10 of the Convention. In this respect, the issues of concern are whether the competent bodies of the Republic of Armenia have conducted effective investigation for finding the offenders, bringing them to responsibility and assigning against them an adequate measure of punishment. The facts show that in the above cases, including in the cases mentioned in the survey referred to above, the police first undertook an investigation on the basis of the report filed to the police but it then showed sheer inaction by refusing to undertake investigative and procedural steps and after few months it either discontinued the proceedings or refused to institute a criminal case.
It is even more surprising that the criminal cases were closed under circumstances where the police had reports of crime at its disposal that had been filed by citizens (the report by the journalist of GALA TV Naira Nalbandyan, the journalist of the Radio Freedom Elina Chilingaryan and the journalist of www.mynews.am Arthur Harutyunyan) which is a situation that raises as such an issue of ignorance by authorities of their positive obligations. The Constitutional Court of RA has stipulated in its Decision no. 871 that the discontinuance of criminal proceedings on the grounds of lack of crime under circumstances where the police has at its disposal a report of crime by a victim was unconstitutional.
As a summary to the above, in the above cases the authorities violated the rights stipulated under articles 17, 23 and 27 of the RA Constitution (prohibition of ill-treatment, right to respect to private life and the right to freedom of speech) by failure of following by the competent bodies the procedural requirements of the above articles, such as conducting investigation, finding those who are guilty and bringing them to responsibility by assigning against them a proportional and adequate punishment. It is also worth mentioning in the end that the failure of conducting effective investigation of the violence against journalists has an overall chilling effect on media and on journalistic freedom which harms the general public right to know.
Broadcasting licensing competition
On March 28, 2012 the Court of Cassation refused the admissibility of the appeal brought by the “Meltex Ltd” which was challenging the grounds of the broadcasting licensing competition of December 2011. With that decision the company finished the domestic judicial proceedings that the company undertook by requesting from the courts to recognize as invalid the Decision no. 96-A of December 16, 2010 of the National Commission on Television and Radio (NCTR) about recognizing the Armnews CJSC as the winner of the competition and declare that the company’s right to fair competition had been violated as a result of the interference by the NCTR. Thus, the company exhausted all domestic remedies before it applied to the European Court of Human Rights this September by initial notice informing the court about its intention of lodging a full application with the court under article 10 of the European Convention for failure of the TRNC to ensure equality of arms, transparency and impartiality in the licensing competition. In addition, the company argued that the TRNC discriminated against the company by showing tendency to defame the reputation of the company.
Despite the judicial process with the National Committee of TV and Radio, in which ArmNews was included as a third party, ArmNews Executive Director Artak Aleksanyan and A1+ T.V. President Mesrop Movsesyan convened a joint press conference on September 4, 2012 announcing news about their cooperation. As of September 10, the twenty minute A1+ “Ayp-Feh” (A-Z) news analysis program is being broadcast on ArmNews’ prime time 9pm slot from Monday to Friday. The cooperative agreement between the T.V. stations has been signed for a period of one year.
The long-year struggle of the Meltex Ltd., of which the above judicial proceedings is only one episode, reflects the main problem in the Armenian broadcasting sphere; the lack of transparent and fair licensing competition as a result of which companies with lack of sufficient independence from the executive branch and from various political fractions, occupy a place in the news sphere. Despite the numerous changes that have been made in recent years in the RA Law on Television and Radio, with the aim of ensuring sufficient institutional independence of TRNC from the executive power, as well as of ensuring fair licensing competition procedures, and despite the fact that those changes were welcomed by the CoE bodies, in practice the participants of the competition do not have free and fair competition framework. In this respect it has to be noted that both the public and international scrutiny over the licensing competition are very weak as a result of which the NCTR has adopted a policy of imitating the democratic principles rather than effectively regulating the television and radio broadcasting sphere.
Defamation and insult court cases against media entities
Since May 2010, when the defamation and insult norms were decriminalized, the courts have received a huge number of civil claims from various groups of the society; ordinary citizens, politicians, oligarchs, public officers, show business celebrities, attorneys and even journalists and media entities. As of October of this year, out of 51 court cases instituted since June 2010 under the new statutory regulation, 15 remain pending and 36 court cases ended. Out of the 15 pending cases in respect of 7 of them the courts have adopted at least one judicial decision and in respect of 8 cases the courts have not adopted a decision yet and the proceedings are still pending in the first instance court. Out of 36 completed cases in 9 of them the courts granted the claim partially, in respect of 10 cases the courts turned down the claims, in 9 cases the parties have come to settlement, in 6 cases the claimants have withdrawn their claim during the trial proceedings and in 2 cases the courts returned the claim by instructing to make corrections and resubmit.
The court practice of 2012 significantly differs from the practice of 2010 and 2011. From January to October of 2012 the courts have received 8 applications, which is a very low number in comparison with the figures of 2011 when the courts used to receive in average 3 to 6 cases per month.
Under the practice of 2010 and 2011 the courts tended to grant high and even astronomical damage claims against defamation and/or insult. During this period the courts granted from 3 to 6 million drams damage claims against non-pecuniary damage. The judicial practice changed sharply from the Decision no. 997 of the Constitutional Court. This decision was followed by the Decision no. EKD/2293/02/10 of the Court of Cassation, adopted a little later on 27/04/2012, which also supported the changes in the judicial practice already underway after the decision of the Constitutional Court. As of the beginning of 2012, the courts started consistently lowering the compensation claims against costs and non-pecuniary damages. Moreover, the courts started considering such conditions as the financial situation of the respondent media entity, the manner of dissemination of the disputed information, the status of the applicant (the courts used to significantly lower or refuse the claims brought by politicians, oligarchs or public officials), as well as the negative effect that the granting of the claim in general could have had on the operation of the media entity which was considered as a matter of public interest. Thus, in the ordinary civil dispute between two physical or legal persons the courts began to see legal relations of public law importance (the freedom of imparting information by media and the freedom of receiving information by citizens) as a result of which the courts started applying the balancing test between the conflicting interests of the individual and the public. By following the same principle, in some cases in which the journalists used excessive or even provocative language which they justified under public interest test, the courts lowered the award amount or even refused the claim in whole and in doing so the courts referred to the public interest that the disputed media content raised. Thus, during 2012 the courts adopted their decision under the guidance set by the above judgments of the Constitutional Court and the Court of Cassation in which the two courts had cited the case law of the European Court of Human Rights. The judicial statistics of the present year are the results of the above judicial policy.
In 2012 15 court cases ended and in 3 of them the courts granted the claim partially, in 5 cases the courts refused the claim, 2 cases ended with settlement between the parties and five cases ended because the claimant withdrew the claim during the trial proceedings. In 2 out of the three decisions in which the courts granted the claim partially the courts lowered the damage award five times (the third case involved very insignificant monetary claim). As a comparison, in 2010 and 2011 the courts lowered the monetary claims from 2 to 18 times. The overall amount of the monetary claim brought by parties by the cited 15 cases amounted to 74,434,050 and only 1,020,000 or the 1.4% of them was granted by the courts. Or, speaking in different terms, none of the 15 claims were granted fully (which means in respect of none of them the courts had made a favorable decision), in 12 cases the courts made fully favorable decisions and in 3 cases the courts made partially favorable decision. And if we assess not only the judicial practice of 2012 but the practice between 2010 and 2012, the following is the picture; as a total of 51 claims were brought and in the 36 completed cases the applicants brought a total of 130,698,350 drams of monetary claim (against pecuniary and non-pecuniary damage) of which 11,286,000 was granted which is the 8.6%. It is obvious that in 2012 the courts significantly lowered the pecuniary damage claims.
In summary, the above observations show that the judicial practice develops positively. The number of cases brought to court has significantly dropped. The lowering of monetary claims has become a stable judicial practice. The granting of 7-digit damage awards has been left in the past. In more and more cases the claimants abstain from bringing monetary compensation claims. There is an increase in the number of the cases in which the parties finish the court dispute by a settlement. The tendency of resolving the dispute by extrajudicial ways grows. There are more cases in which the parties see the solution of the dispute under ethical rather than legal framework. All of the above means that the decriminalization of the defamation and insult norms serves its true purpose.
 Decision no. EShD/0097/01/09 of 26/03/2010 of the Court of Cassation in the case of Tigran Kamalyan, § 23:
 This statistics includes only those cases in which the media entity or the journalist appeared as a respondent in the proceedings.
 Samvel Aleksanyan, Ruben Hayrapetyan and Levon Sargsyan v. Dareskizb Ltd., civil case no. EKD/2347/02/10 and Bela and Sedrak Kocharyan v. Skizb Media Kentron Ltd., civil case no. EKD/2479/02/10. The judgments are available in www.datalex.am.
 The decision in the case of Tatul Manaseryan v. Skizb Media Kentron Ltd.
 See, for example, the judgment of Kentron and Nork-Marash administrative district in the civil case no. EKD/0790/02/11 in the matter of Hayk Babukhanyan v. “Khmbagir” Ltd. The judgment of Kentron and Nork-Marash administrative court in the civil case no. EKD/0526/02/11 in the matter of Tigran Arzakantsyan v. Iravunk Media Ltd.
 Glendale Hills v. Skizb Media Kentron Ltd., civil case no. EKD/1963/02/10: Tatul Manaseryan v. “Skizb Media Kentron” Ltd., EKD/2293/02/10. Daniel Ioannisyan, Bayandur Poghosyan and Hasmik Simonyan v. “One Nation” party, civil case no. EADD/0074/02/12. The court decisions are available at www.datalex.am.
 Hayk Babukhanyan and “Iravunk Media” Ltd. v. “Khmbagir” Ltd. and journalist Edik Andreasyan, civil case no. EKD/2374/02/10. Hayk Babukhanyan v. “Khmbagir” Ltd., and journalist Edik Andreasyan and Abel Mikaelyan, civil case no. EKD/0790/02/11. Tigran Terteryan v. “168 Zham” Ltd., and journalist Marine Martirosyan, civil case no. EKD/1485/02/11. Vano Yeghiazaryan v. journalist of “Hetq” weekly Adrine Torosyan, civil case no. LD/0628/02/11. Arthur Grigoryan v. “Hraparak” daily Ltd., civil case no. EKD/2491/02/11. The court decisions are available at www.datalex.am.
 Jehova’s Witnesses Religious Organization and Gevorg Zakaryan, Ashkhen Zakaryan, David Harteyan, Aksel Ghazaryan, Shushanik Ghazaryan, Hayk Hakobyan, Aida Hakobyan and Arthur Martirosyan v. Armenian Public TV CJSC and Gevorg Altunyan, Sona Torosyan, Nune Aleksanyan and Edgar Davtyan, civil case no. EKD/2621/02/10. “Arythmiological Cardiology Center” Ltd. v. Aravot daily” Ltd, civil case no. EKD/2707/02/10: Judicial decisions are available at www.datalex.am
 Aram Chatinyan v. Gagik Shamshyan, civil case no. EAKD/1751/02/11. Tereza Shahverdyan v. journalist of “Hetq” weekly Adrine Torosyan, civil case no. LD/0656/02/11. Benik Harutyunyan v. Zhoghovurd newspaper Ltd., civil case no. EKD/2427/02/11. Ruzanna Azizyan v. “7 or” news agency, civil case no. ESHD/0325/02/12. Sas Group v. Aram Antinyan, civil case no. EAKD/0395/02/12. Judicial decisions are available at www.datalex.am