Astghik Simonyan

The 17 April 2009 judgment of the court of general jurisdiction of Kentron and Nork Marash communities in the case of Gagik Shamshyan[1], a photojournalist of the daily newspapers Aravot and Chorrord Ishkhanoutyun (Fourth Power) is clearly contrary to a number of principles established by the case law of the European Court of Human Rights (ECtHR) with regard to Articles 10 and 6 of the European Convention on Human Rights (ECHR).

Paragraph 1 of Article 10, ECHR, guarantees everybody’s right to freedom of expression ‘without interference by public authority and regardless of frontiers.’ This right, however, is not absolute and Paragraph 2 of Article 10 stipulates the grounds on which it may be restricted:

…subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder and crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

As the analysis of the above article and the ECtHR case law demonstrates, the interference with the right to freedom of expression is regarded lawful when it satisfies simultaneously all the 3 conditions laid down in Article 10. The first of these conditions is that any interference must be ‘prescribed by law’ as required by the principle of legal certainty to enable the individual either by himself or, if necessary, with the help of his legal counsel, to foresee the form and size of liability established for any act to be committed by him. The second condition requires that the interference by a public authority complies with at least one of the ‘legitimate aims’ laid down by the Paragraph 2 of Article 10. And, the third and the most important condition is that the interference must be ‘necessary in a democratic society.’ To determine the State's compliance with this last condition, the ECtHR has set up 2 more legal categories: the interference must stem from a ‘pressing social need’ and be ‘proportionate.’  Furthermore, the necessity for interference must be ‘convincingly’ established. In other words,  the State’s arguments in support of the necessity of interference must be ‘relevant and sufficient.’ Any interference, whose aim could have been achieved by ‘less restrictive means,’ is considered to be disproportionate. It is this last condition that the judgment issued in Gagik Shamshyan's case for the crime stipulated by paragraph 3, Article 343 of the RA Criminal Code falls short of. Obviously, convicting Gagik Shamshyan for the legitimate aim of 'protecting the reputation and rights' of Judge Gagik Avetisyan and 'maintaining the authority and impartiality of the judiciary' in his person violates the condition of necessity in a democratic society for a number of reasons. Firstly, as has consistently been noted by the ECtHR, 'Freedom of expression constitutes one of the essential foundations of a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to 'information and ideas' that are favourably received or regarded as inoffensive but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of pluralism, tolerance and broad mindedness without which there is no 'democratic society'.'[2] These principles relate to any expression. However, they should be more strictly observed with regard to the media and their representatives who perform the function of 'public watchdogs'[3] disseminating information to the society on any issue of 'public interest.'[4] While performing this duty, journalists are free to resort to a certain measure of exaggeration or even provocation[5]. Corresponding to this duty of journalists' is the right of the public to be informed. The ECtHR has admitted that journalists' function of a 'public watchdog' also implies raising questions that are related to the administration of justice. The media are the institute that enables both politicians and society at large to see whether or not judges perform their heavy responsibilities properly.[6] Clearly, it is incumbent on judges as representatives of the judicial branch of power of the State to be tolerant towards any offensive, shocking and disturbing information or ideas. On the other hand, the court, according to the ECtHR is endowed with special functions and, therefore, it 'must enjoy public confidence.'' It may therefore prove necessary to protect such confidence against destructive attacks that are essentially unfounded, especially in view of the fact that judges who have been criticised are subject to a duty of discretion that precludes them from replying.'[7] American judges adopt a totally different approach in this regard. They are extremely self-confident and they reject the argument that public confidence in their reputation and the administration of justice may be undermined by hostile comments of any kind.[8] Further, according to the ECtHR, normally it is up to the domestic authorities to determine whether a particular interference with the exercise of freedom of expression is necessary. Nevertheless, their discretionary powers are subject to European supervision embracing both the legislation and the decisions applying it, even those given by an independent court.[9] Going back to the first constituent of the 'necessity in a democratic society' – the 'pressing social need' of the interference – it should be noted that the ECtHR's approach takes account of 2 important elements. The interference is unlawful if the expression contains factual statements or value judgments which, however, must not be devoid of a certain factual basis. Understandably, Gagik Shamshyan or any other person will have difficulties in providing the court with a factual basis supporting the truth or at least the likelihood of truth of the words ''calf,' 'idiot' or other offensive words' that were allegedly addressed to Judge Gagik Avetisyan when the fact of such expression itself is contested. A number of people that were present during the court seating insist that they heard no such words. This is exactly where the journalist's right to fair trial guaranteed by Article 6 of the ECHR was violated in view of the fact that the court refused to hear the defence witnesses[10] providing justifications that do not stand any reason. This has resulted in the violation of the principle of equality of arms and the adversarial character of criminal procedure law. The court's reasoning that when inviting the witnesses the defence failed to mention their addresses which deprived the court of the opportunity to send notices to them again testifies to the fact that the court was not serious in performing its duties, whereas paragraph 4, Article 340 of the RA Criminal Procedure Code makes it clear that the court may call witnesses on its own initiative. In the context of what has been said, hardly will the ECtHR consider that the reasons adduced by the court in support of its interference were 'relevant and sufficient' and that the court judgment was based on an 'acceptable assessment of the relevant facts'.[11] The last problem that is necessary to consider in relation to this case is the second constituent of the condition of necessity in a democratic society – the proportionality of interference. In the case of Tolstoy Miloslavski v UK[12] the ECtHR considered the interference disproportionate simply because the British court had made a damages award of 1.5 GBP. If our courts believe that the fine to be paid by Gagik Shamshyan is incomparable with the above case, they may be offered to familiarize themselves with the case of Amihalachioaie v Moldova[13], where the ECtHR ruled that, 'although the fine of 360 lei (equivalent to 36 euros) imposed on the applicant is a seemingly modest sum, it nevertheless has symbolic value and is indicative of the Constitutional Court's desire to inflict severe punishment on the applicant, as it is close to the maximum that could be imposed under the legislation.' There is no denying that the fine amounting to 350 x minimum monthly salary in Gagik Shamshyan's case, which is equivalent to 700 Euro, is again far from proportionality.

P.S. Paragraph 4, Article 7 of the Criminal Procedure Code of the Republic of Armenia, 'the reasons stated in a judicial act of the Court of Cassation or the European Court of Human Rights with regard to a case with specific factual circumstances, including judicial interpretations of a law are binding on the court during the examination of a case with similar factual circumstances, except for cases where the court adduces serious arguments to justify their inapplicability to the factual circumstances in question.'