On November 15, 2011 the RA Constitutional Court issued its much awaited decision in response to the application of the RA Human Rights Defender, dated October 13, 2011, on the verification of the constitutionality of Article 1087.1 of the RA Civil Code.
The decision was pronounced in as much rush and insufficiently researched into a number of legal concepts, as the process surrounding the adoption of the notorious May 2010 legislative amendments was hasty and imperfect
The decision of the Constitutional Court is a 37-page document, which apart from a couple of positive clarifications, contains a number of uncertain definitions and wordings, which, if taken into account, will add to the confusion surrounding the limited understanding of the field in the current judicial practice.
Among the positive clarifications note, in particular, should be made of:
1. The introduction of the Armenian term ‘անվանարկում’ as a generic term for defamation;
2. The view according to which the RA courts must accept the principle reflected in the case law of the European Court of Human Rights on the wider limits of acceptable criticism of public figures and politicians (DCC-997, p. 25),
3. The fundamental approach according to which the term ‘person’ does not attach to the public bodies as legal persons.
The predominant part of the decision, however, is nothing but a testimony of insufficient understanding. In particular:
1. There are two models of defamation law – those of British and continental laws. The first employs the term defamation which can have oral (slander) and written (libel) forms. To defame, in other words, to lessen the name or fame may occur through expression of information – facts or factual statements, and ideas – opinions or value judgments. In the first case the defaming individual, which acquires the legal status of the defendant in the civil process may avail himself/herself of either the defence of truth/justification or the defence of public interest, while in the second case, the defence of a fair comment on a matter of public interest. The countries of continental law employ two concepts: defamation – publication of defamatory information or facts or factual statements and insult – publication of insulting ideas or opinions or value judgments. Due to lack of awareness of the distinction between these two models, the decision of the RA Constitutional Court offers the following definitions, in making which reference is made to expressions defined in 2005 by the OSCE: defamation, libel (a written statement which defames an individual), and insult (a statement or act said or made with a view to insulting a person).
2. The wordings of theConstitutional Courton conditioning these two torts upon the existence of ‘intent’ again lead competent readers to the conclusion on insufficient knowledge. Most probably what theConstitutional Courtunderstands by the word ‘intent’ is the concept of ‘malice’ in the British defamation law, which implies that information or ideas have been published dishonestly or with reckless disregard for truth. Hence, the concept of malice has elements of both intent and recklessness. At any rate, the burden of proving malice rests with the plaintiff. It remains to be understood how theRA Constitutional Courthas reconciled the above approach with the general rule in Article 1087.1 according to which the burden of proving the existence or non-existence of the relevant factual circumstances in such cases rests with the defendant.
3. The Constitutional Court does not deem value judgments as insult since ‘a value judgment is a conclusion made on the basis of the analysis of factual circumstances.’ But why can a journalist not arrive at a dishonest conclusion on the basis of the analysis of factual circumstances is a question not answered by the Constitutional Court again due to lack of clear understanding of the torts of insult and defamation.
4. This is proved also by the fact that a number of related important terms are translated wrongly in the decision of the Constitutional Court. For example, the formulation of the most important case of the ECtHR, Handyside v UK, 1976 is worded as follows: ‘Freedom of expression …is applicable not only to ‘information and ideas’ that are favourably received or regarded as inoffensive but also to those that insult, shock or disturb…’. Leaving aside the fact that the Decision contains no reference to this particular judgment which set for the first time this important principle and the fact that these three words are not even used consistently throughout the text appearing in different combinations, which is also unacceptable for a legal text, it should be noted that the terms used by the European Court of Human Rights are ‘offend, shock or disturb,’ - not ‘insult’ but ‘offend’, the difference being in the extremity or degree of damage.
Included among the wrongly translated terms is also that of ‘public interest.’ This latter cannot be worded as ‘something the public is interested in’ but only as ‘something in public interest.’ This conclusion is reinforced by the synonymous expression ‘matters of public concern’ used in a number of the ECtHR cases which in many cases may differ from a matter the public is interested in. An example of the latter is the details of private lives of private individuals, which in no may can constitute a matter of public concern or public interest. An important guideline regarding this issue is contained in the ECtHR case of Von Hannover v Germany, 2004, which sheds light on this concept and which was worth studying by theConstitutional Court prior to issuing its decision.
5. Another serious mistake that is found in the Decision of theConstitutional Courtis the misconception of the notion of non-pecuniary compensation. Having borrowed the expression ‘non-pecuniary compensation’ from the case law of the ECtHR (‘“the critical assessment of facts ... cannot serve as a basis for allowing compensation claims for moral damage”. However, if the right to a good reputation of a person is violated, even though a defamatory statement was a value judgment, the courts can award compensation for non-pecuniary damage.’ Ukrainian Media Group vUkraine, 2005, Judgment of 29 March 2005), DCC-997, p. 33), theConstitutional Courtobviously has no understanding of its meaning. This is testified by the last sentence of the last paragraph on page 29 of the Decision, whereby theConstitutional Courtattaches special significance to the fact that ‘paragraphs 7 and 8 of the contested Article, in addition to pecuniary compensation, foresee forms of non-pecuniary compensation.’ This conclusion is reinforced by the reading of paragraph 5 of page 35 of the Decision: ‘forms of non-pecuniary compensation should be applied as a matter of priority in case of damage as a result of defamatory expressions (actions)…’. However, according to the ECtHR, compensation for non-pecuniary damage is again a monetary form of damages awarded to compensate for the pain, suffering, anguish, or, in our case, loss of reputation.
Leaving all this to the professionals in the field that can perhaps be found inArmeniaor elsewhere, theConstitutional Courtshould have answered the questions regarding the constitutionality of the relevant provisions of the RA Civil Code. In at least two cases these questions begged for clear answers, which theConstitutional Courtfailed to provide.
The first was whether regarding insult as insult only by virtue of its public nature does not violate the constitutional provision on the prohibition of discrimination. TheConstitutional Courtgave the following answer: ‘it is outside the scope of the relevant Article to regulate relations of private law nature. However, the Constitutional Court believes that rather than being a gap of the named Article of the Code, this is a gap of general regulation to fill which the RA National Assembly should within the scope of its competence consider the issue of legal regulation of defence from non-public insult.’ A question arises: what do the RA Civil Code in general and the Article in particular, if not relations of private law nature? Public?
Secondly, as to the question on whether the maximum threshold of damage awards in Article 1087.1 does not contradict the constitutional principle of proportionality, theConstitutional Courtagain failed to provide an exhaustive answer by advising the RA National Assembly to review this threshold to prevent disproportionate limitations of the right to freedom of expression. If theConstitutional Courtbelieves there is a proportionality problem, it means the provision contradicts the constitutional principle of proportionality and is unconstitutional. Sending messages to the National Assembly is a step that comes next. If, however, there is no such problem, then why should the upper threshold be reviewed?
The Ecclesiastes says that there is time for everything. This was perhaps theConstitutional Court’s time for a pronouncement on the basis of non-conceptualized concepts.