Asset 3


End of content No more pages to load

Your search did not match any articles

Sara Petrosyan

Article 1087.1 of the Civil Code – A Need to Amend, Clarify and Interpret

After balancing the monetary amount of insult and slander suits, decisions by the courts to freeze property and financial assets became new challenges for news outlets and reporters.

In 2013, the Kentron and Nork Marash Administrative Court handed down verdicts to freeze the assets of three news outlets. On the basis of the motion of the representative of X Group company President Khachik Khachatryan, a freeze was placed on the newspaper Zhoghovourd and on the property of its reporter Sona Grigoryan. On the motion of the representative of Robert Kocharian, the second President of Armenia and his son, a freeze was slapped on the daily Zhamanak and its founder Skizb Media and on financial accounts of Arajin Lratvakan and its founder.

Placing a freeze on of property and financial assets of news outlets wasn’t something new. During the past years, a freeze was placed on the daily Hraparak on two occasions. Later on, due to various suits, a freeze was placed on the paper’s property. Due to the vociferous reaction of the media community, the freeze was lifted ten days later. The European Court has regarded the placing of a freeze on the property and financial assets of the press as a restricting the freedom of the press.

Ara Ghazaryan, an international legal expert, stated the following on court decisions to freeze assets:

“The application of such measures by the courts to guarantee suits, which impact the possibility of the press and reporters to search and disseminate information, is considered as an interference by the Article 10 of the European Convention of Human Rights regarding the right to freely receive and disseminate information and ideas, and thus, the given news outlet or reporter can consider themselves as victimized parties.”

It would appear that the problem of placing a freeze on financial assets was resolved and that the courts would subsequently steer clear of applying such drastic measures. This year, however, when Armenia’s second President and his son again filed a suit against the daily Zhamanak and www.1in.am, the Kentron and Nork-Marash Administrative Court (presiding judge A. Soukoyan) placed a freeze on finances of the news outlets and their founder and publisher Skizb Media Center Ltd and Arajin Lratvakan Ltd. True, the motion was partially sustained (besides a retraction, the Kocharians demanded compensation of 5 million AMD, 2 million each for slander and 1 million for incurred legal fees), nevertheless, placing a freeze on financial deposits restricts the operations of news outlets already in dire economic straits.

At the same time, this stresses that in the case of certain privileged individuals, like the former President, such measures will be enacted. (For example: Robert and Sedrak Kocharian v Skizb Media Center and Arajin Lratvakan Ltd, for the retraction of slanderous information and damage compensation). This is truly a case when freezing the property of a news outlet can have a dampening effect on the free flow of information.

In his observations, attorney Ara Ghazaryan doesn’t regard the decisions to free assets as leading to a crisis, opining that he doesn’t see a threat to the operations of news outlets as they themselves claim. In response to a question posed by Hetq regarding the court’s decision to place a freeze on the daily Zhoghovourd and the property of reporter Sona Grigoryan, Ghazaryan stated: “If we are talking about a news outlet, plaintiffs must understand that there must be a very substantial reason to present such motions. I didn’t see such a necessity.”

Afterwards, commenting on the three demands in the motion (freezing the financial assets, the property and  disallowing the outlet to publish anything on the subject in question until the end of the court case), the attorney notes that out of the three Judge R. Apinyan chose that demand which would interfere with the paper’s operation the least. “In other words, he remained loyal to his principles in the sense that he displayed an evenhanded approach in order to sustain the motion of the plaintiff and to also not deprive the news outlet of the possibility to operate,” stated the attorney. Nevertheless, in addition to publicizing its concern, the outlet filed a motion to have the freeze lifted from the property of reporter Sona Grigoryan; which the court sustained.

There is also the need for a defense from non-public insult

The need to legally regulate the problem of a defense from non-public insult became a hot topic in 2011, when the court examined the suit filed by Hetq reporter Grisha Balasanyan against National Assembly Deputy Ruben Hayrapetyan. The reporter had telephoned Hayrapetyan and during their conversation the deputy uttered a number of sexual invectives. The reporter took the matter to court and lost.

The following is excerpted from the court’s decision:

The court, after examining the evidence, has found that the demand of the plaintiff, Hetq reporter Grisha Balasanyan, for compensation from Deputy Ruben Hayrapetyan for damaging his honor and dignity is without merit. According to Article 42 of the RA Constitution, no one shall bear obligations not stipulated by the law. In other words, if responsibility for non-public expression is not envisaged by the law, then it cannot be regarded as insult, and the court cannot define obligations not legally envisaged for the defendant; in this case Ruben Hayrapetyan. None of the evidence submitted by the plaintiff sustains the existence of public insult, since it wasn’t public but rather took place during a private telephone conversation.

In 2011, the RA Constitutional Court examined the issue of the absence of accountability for non-public insult based on the petition of the Human Rights Defender of Armenia. In its decision, the Court noted that to overcome this legal omission, the issue needs to be debated by the National Assembly. During the past two years, this issue hasn’t received legislative regulation. New cases of non-public insult against the reporter have been since registered.

Zhoghovourd reporter Sona Grigoryan telephoned businessman Khachik Khachatryan to get his side of the story on an article she was writing. Khachatryan replied: “…Of course, nothing of the kind happened. But you won’t write that tomorrow. Dear girl, write what you want. I’m happy that you are writing about me, otherwise you would just neglect me. Dear girl, you aren’t a reporter but a prostitute. And you can write that as well.”

Yerevan’s Ajapnyak and Davtashen Administrative Court threw out the slander suit filed by the Zhoghovourd daily and reporter Sona Grigoryan against Khachik Khachatryan that demanding a public apology, 1 million AMD in damages, and payment of legal fees. The court, citing the verdict in the Grisha Balasanyan v Ruben Hayrapetyan case, noted that such incidents, when made during a private telephone conversation, are outside the purview of Article 1087.1 of the RA Civil Code. The Appeals Court also threw out the reporter’s petition, arguing that Article 1087.1, Part 2, of the Civil Code clearly defines the concept of insult; i.e. that it must be a public expression of defamation through insulting speech, images, sound, signal or another method. According to the court, an examination of the Article clearly implies that there must be the presence of a third party (individual) for such insult to be public in nature.

Commenting on the legal regulation of the issue, attorney Ara Zohrabyan stresses that the courts neglect the nature of the activities of reporters, the public interest and place the verdicts handed down within the narrowest of interpretation parameters of the law. In his estimation, if the Court of Cassation accepts an appeal of any case and delineates that dignity is also subject to defense from non-public insult, it would reduce the number of cases lost by Armenia in the European Court of Human Rights. “The courts are obliged to defend an individual’s violated dignity, and today the courts objectively have the legal possibility. The courts can even apply an analogy of the law. Citizens aren’t interested if a specific form of defense is envisaged by law or not, since there is legislation, i.e. rights guaranteed by the Constitution. Thus, it is subject to be defended from any violation,” says Zohrabyan.

The Court of Cassation however, as in the case of preceding slander and insult suits demanding legal regulation, once again did not assume its regulatory role as defined by law. On September 6, 2013, the Court of Cassation returned the appeal of Zhoghovourd reporter Sona Grigoryan.

In a conversation with Hetq, Ara Zohrabyan stated that according to Article 3 of the RA Constitution, “The individual, his or her dignity, fundamental rights and freedoms are supreme values, and that according to Article 14, an individual’s dignity, as an inseparable part of his or her rights and freedoms, are respected and defended by the government. It follows that the government is obliged to defend an individual’s dignity. By government, what is meant is the judicial authority and the legislature,” the attorney said.

In a statement issued in April of this year, Human Rights Defender Karen Andreasyan expressed a willingness to defend reporters from non-public insult. He petitioned the Council of Court Presidents (CCP), requesting the body to investigate and clarify the nature of expressions made to reporters during interviews. The court authority once again avoided stating its position on such an important matter. The CCP responded that it didn’t see the need for an official clarification since there was specific legal regulation on the matter and a well established legal practice.

The courts clarified the legal term “evaluative-judgment”

On the basis of Civil Code Article 1087.1, one of the most questionable issues being examined in the courts relates to expressions of insult. Media analysts estimate that the courts equate evaluative judgments as insult or the opposite, because this Article, according to lawyers, does not provide an independent definition of the concept.

Media experts have observed that in their decisions the courts have broached this concept. However, due to the absence of legislative regulation, sometimes the parties to a case regard fact as evaluative judgment, or, as in this case, as a statement of fact.

From the cases examined in 2013, RA former Prime Minister Armen Darbinyan’s suit against the Political Research Center (whose periodical is www.n-idea.am) in the defense of his dignity and for compensatory damage stood out because the Appeals Court gave a judicial interpretation of the term “evaluative judgment”.

Plaintiff Armen Darbinyan regarded the following published expressions as insulting:

  1. “…And today, Armenchik Darbinyan, the new Armenian Napoleonic phenomenon was irked by an article of Suzan Simonyan. In his Facebook page, that coward wrote…”  
  2. “…Pay attention as to how that nobody, this pathetic coward, who steals the bread of our kids (by the way all Armenia’s children, except for the elite, are under threat), to date, coward Darbinyan   has been able to steal the bread of my child and the bread of  Serobyan’s and many others’ kids
  3. But this doesn’t mean he will be satiated with it…
  4. “…Perhaps because Vazgen regularly (almost every day) organized educational activities for the Armenchik-like despicable people…»։

The plaintiff found the following sentences slanderous:

1. The government has allowed him to live outside the law and has given him other perks that he has been able to “pocket”

The government has allowed Armenchik Darbinyan to put his hands in the pockets of average Armenians without punishment and to cause them harm

  1. In this way, this vainglorious prime minister has fed off of the stolen meat and meat products, without paying, since his father ripped off the meat factory when serving as its director, and before that he ate leftovers.
  2. To date, coward Darbinyan   has been able to steal the bread of my child and the bread of  Serobyan’s and many others’ kids
  3. …When serving as prime minister, Armenchik Darbinyan called Sandoyan, the Minister of Finance to his office where he cursed him most vulgarly and beat him to within an inch of his death

The defendant regards the above expressions as evaluative judgments since they represent opinion.

During the trial examination, the defendant, the Political Research Center, stated that such judgments are not subject to being proved. Thus, the defendant concluded that there was no premeditation on his part to cause insult and that he should not be obliged to validate those expressions.

The Court of First Instance partially sustained the suit. The court decided that the above expressions were insulting and slanderous. The Appeals Court paid specific attention to the argument of the defendant that the expressions were evaluative judgments, concluding that, “…to clarify whether the information in question was judgmental, we must first clarify the meaning of the word judgment.”

In logic, judgment is a form of thought representing a combination of conceptions, of which one (subject) is chosen and opened through the means of the other (predicate). In philology, judgment is a conclusion, assumption, interpretation and clarification based on listening to opinions, advice, and convictions. In this case, from the perspective of logic, the predicate is absent and only the subject exists. From the perspective of philology both advice and convictions are lacking, as well as the assumptions, interpretations, clarifications and conclusions based on them. What exist are claims, statements and presentations about completely factual info.

The Appeals Court rejected the plaintiff’s appeal. The Information Disputes Council, placing importance on the interpretation given the concept of evaluative judgment by the Appeals Court, noted that the problem was partially one of legislative inadequacy. The Council stated, “Article 1087.1 of the Civil Code does not provide an independent definition of evaluative judgment.” At the same time, the Council doesn’t share the opinion of the court and the plaintiff, and noted that many of the expressions regarded as insulting included evaluative judgments and not “claims about proven facts”.

Judges have defined additional obligations for news outlets

Article 1087.1 of the Civil Code, which has turned into a straight-jacket for new outlets, is being abused by judges. Judge Gevorg Narinyan of the Shirak Provincial Court, in his verdict of a January 20, 2013   slander case (Hambardzoum Matevosyan v Anoush Mnatsakanyan, Iveta Charkhifalyan, Vardan Papoyan and Levon Gevorgyan), also set down obligations for Hetq.

The defendants in the case had contacted Hetq, requesting that the outlet cover the case. On October 4, 2013, Hetq published two articles on the issue. In the one month deadline to report material deemed slanderous or insulting, Hetq received neither a printed or phone request from Hambardzoum Matevosyan to retract the material. The plaintiff also didn’t include Hetq in his suit nor make any demands of it. There is only one sentence in the plaintiff’s suit where Hetq is mentioned. There, Matevosyan states that the defendants spread slanderous info about him through the pages of Hetq. Attached to the suit were copies of the Hetq articles in question. During the trial, the parties agreed to reconcile.

The court decision reads:

Judge Gevorg Narinyan affirms the reconciliation reached by the parties stating that the defendants must issue retractions in the newspaper Azg and Hetq Online within a seven day period.

Thus, the judge set down equal obligations for the 3rd parties included in the case – the Azg newspaper and Hetq Online – neglecting that the plaintiff had never presented such a demand and that Hetq had never been official party to the case.

The Court of Appeals rejected the appeal filed by Hetq regarding this court’s decision on the following grounds: “A reading of the court’s decision clarifies that no obligation has been placed on Hetq Online, but rather it is an obligation to be assumed by the defendants.” In addition, the Appeals Court stated that it rejected Hetq’s appeal because it had no right to appeal the lower court’s decision in the first place.

Attorney Davit Danielyan commented on the decision by saying that if the plaintiff presented no demands in his suit against Hetq, and if Hetq had no official status in the case, then we are looking at a possible verdict where there has been a breach of powers.

Write a comment

If you found a typo you can notify us by selecting the text area and pressing CTRL+Enter