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Sara Petrosyan

Moral Damage Compensation: What Wrong With the New Bill?

Will the press think twice about what it writes? At the initiative of three Armenian MP’s, the proposed modifications of the RoA Civil and Criminal Codes give the impression that finally, in Armenia, an attempt is being made to regulate the institution of compensation for moral damages. Perhaps this is the impression, but it is tragic that only one fragment of that institution has been taken; financial compensation for damages to one’s personal honor, dignity and professional prestige. “The envisaged modifications and amendments to the RoA Civil Code will afford physical entities the possibility of rehabilitating their honor and dignity through civil judicial proceedings, the reconstitution of their violated rights via repudiation, response and also monetary compensation. With the aforementioned modifications, not only is the personal dignity and professional prestige protected by the fraudulent and insulting assaults of physical entities but also from those of the mass media,” argue the sponsors of the legislative modifications. I should point out that the issue of compensation for moral damages doesn’t only surface when a physical entity or mass media outlet subjects anyone from untrue disparagement, slander or damages their professional prestige. For a long time now, the eighteen year independent state of Armenia should have provided a civilized legal formulation to this issue, or at least eight years ago, when Armenia had the opportunity to present protests to the European Court. However, to date, Armenia makes due with incomplete regulation, adding only a level of responsibility of news outlets. Who has decided which consequence of moral damage is the most serious, hurtful or denigrating – discrediting a person via a news outlet, ridiculing the inadequacies of a government official, or detaining an innocent person behind bars for years, turning that person into a crippled due to a physician’s incompetence or to the physical beatings of law enforcement. It is clear that the government refrains from investing in the institution of moral damage compensation, not wishing to subject the state budget to losses, well knowing that the rights of our citizens are primarily violated within government circles, at the hands of our government officials, rather than by the publication of any fraudulent or slanderous publication of a news outlet. As attorneys have pointed out, there are thousands of cases in the administrative courts that can one day result in decisions against the government. Prior to the mentioned initiative being circulated in the RoA National Assembly, we had asked RoA Minister of Justice Gevorg Danielyan what were the prospects of including the institute of moral damages into Armenian law. The minister answered that individual MP’s had presented certain initiatives. At the same time he stated, “Let’s us add, that the laws no in operation do not preclude the institution of monetary accountability. Thus, according to Article 4, Part 4, of the RoA Civil Code, ‘A citizen, in whose name has been circulated information tarnishing his/her honor, dignity or professional prestige, has the right to demand, in addition to a refutation of said information, to compensation equivalent  to the damages incurred by their circulation.’ In my opinion, in such a case, we are involved not so much with imperfect laws (even though the issue exists), but rather with traditionally formulated inadequate practice, which, is again based on the non-specificity of certain points of the law.” It is evident that courts in Armenia have never satisfied compensation demands based on Article 19 of the RoA Civil Code, arguing that this institution is not encapsulated in Armenia’s civil laws. One of the recent examples is the suit brought by the “Ararat” Scientific Strategy Center against the Caucasus Institute Foundation, in which a demand was made for moral damage compensation at the symbolic amount of one AMD. Two courts suspended the judicial process, arguing that, “Moral damages has no legislative regulation in the RoA law codes. Moral damage, as a type of damage compensation is also a type of accountability that must also be defined by law. The laws governing RoA civil relations do not envisage moral damage compensation as a type of accountability, so that the basis of the argument is not subject to judicial review.” This is not a singular example. The Military Prosecutor launched a criminal case against 23 Jehovah’s Witness members who went AWOL. The case was later dropped. The court rejected the moral damage compensation demand that had been brought by the, so they petitioned the European Court. The courts have acted in such a manner even in those cases when an individual’s innocence had=s been proven and the Minister of Justice, despite being aware of “with traditionally formulated inadequate practice”, has never attempted to regulate that practice. The most glaring example of this is the well known case of Armen Poghosyan, sentenced to fifteen years for the rape of a young girl. They extracted testimony from him by using physical force and thus regarded the charges to be sustained. However, about five and a half years later, the real rapist was identified. Later on, in 2004, an Armenian court exonerated Mr. Poghosyan. After being declared innocent, Armenia’s Chief Prosecutor Aghvan Hovsepyan compensated him for his “troubles” by presenting him with several volumes of “The Count of Monte Cristo” by Dumas. After being exonerated, Poghosyan demanded from the courts that he be compensated for the material and moral damages he had sustained. The court didn’t even compensate him for what he lost out on during his six years in prison. The court set his material losses at six million AMD. Poghosyan’s lawyer stated that this figure wasn’t a rational appraisal of material damages. The court rejected the moral compensation demand, since that concept doesn’t exist within the Armenian judicial system. Recently, the European Court has notified the Armenian government that it has received the above mentioned two moral compensation petitions and has requested that Yerevan present its contentions. In the case of Armen Poghosyan, the government has stated that the republic’s Chief Prosecutor, in the name of the government, had apologized to the wrongly convicted individual and that Armenian Public TV had aired a program on the issue that they regard as a form of compensation. This response did not satisfy the European Court, which asserted that in certain cases compensation must be in the form of actual currency when the damages sustained are of major proportions. In this case, the individual was belittled, subjected to physical and psychological torment, suffering and stress. He was subject to physical pain and found himself in a state of deep despair and uncertainty. These constitute a basis for moral damage compensation. In the government believes that all of this can be compensated for by an apology, then why doesn’t it oppose the legislative initiative of certain MP’s that evaluates an individual’s dignity being insulted in the newspapers at one million AMD? Perhaps it is because news outlets are private concerns and the government will not suffer losses if they close. Attorney Ara Ghazaryan believes that the decisions to be handed down in the cases of Poghosyan and the Jehovah’s Witnesses, where the issue is only imprisonment, will lead to the creation of a moral damage compensation institution in Armenia, at least regarding imprisonment. “Our government must answer, why the Armenian legal system has no procedure for moral damage compensation when the situation involves unjustly depriving one of his/her personal freedom, and if, in fact, the absence of such a right constitutes a violation of Article 5 of the European Convention.” Mr. Ghazaryan believes that, regardless of all else, the institute of moral compensation, in its entirety, must be installed in Armenia, and that in order not to subject the state budget to enormous losses, huge compensatory damage amounts might not be handed down by the courts. At least, the attorney believes, that this way the injured individual will not only receive compensation for material but also moral damages. “The institute of moral damage compensation operates in all developed nations and it’s a substantial counter-balancing force. The mass media must also be brought into the arena of accountability even though the media are protected by special European Court provisions. It’s another issue regarding the procedure to define compensation amounts. In this document, the right balance must be maintained, so that news outlets don’t go bankrupt,” says the attorney. According to the defined amounts of compensation in the bill being circulated, the majority of Armenian news outlets could only withstand being sued and sentenced two or three times at most. This would be followed by the bankruptcy procedure as defined by the law, since the outlets would have nothing left to compensate the other “immaculate” officials, politicians, businessmen sullied and tarnished in the pages of the press. The government, however, has not uttered a word about this matter in its extensive observations. All the while, the bill’s sponsors, expecting fierce opposition, have set out the bait - In return for delineating large amounts of compensation, to decriminalize the criminal accountability of reporters for insult and injury.

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