How the courts come down on moral compensation will decide The planned for changes to Armenian law designed to decriminalize slander charges has been a demand pushed by the European Union for the past ten years. When it comes to the manifesting the freedom of speech, international norms of democracy take a critical view of imposing criminal accountability. Taking this into account, The RA National Assembly decriminalized those norms used to charge individuals with criminal accountability for slander. Instead, accountability for defamation and slander were defined in the Civil Code. The existence of a responsible press was another demand of the European Council and, as noted by lawyers, European institutions have followed-up to develop such a thing and have reserved an important role to the institution or moral compensation. The legislative changes made by the National Assembly one year ago also allowed for the practice of moral compensation. However, it only applies to the press. The planned for types of accountability in instances of defamation and slander singled out by the law, were set down in monetary amounts of compensation. News gathering organization and editors in Armenia, well aware of the reporting style and financial situation of the sector, understood that the practice of compensation for moral damages was a direct threat to very existence of the media. They tried to avert the looming threat by creating the mechanism of self-regulation; to ward off potential lawsuits. This self-regulation didn’t work. Those displeased with news coverage petitioned the courts for satisfaction. The first compensation cases came as a shock to Armenia’s fourth estate. The consecutive damage awards posed a real threat to the news media’s existence. The courts awarded damages according to the maximum limits defined by the law, even though the law also minimum amounts as well. Article 1087.1 of the RA Civil Code states that individuals can petition the courts in cases of defamation in one or several of the following ways: 1- By requesting a public retraction 2- By demanding a full or partial reprint of the court’s decision 3 – By demanding compensation of 1,000 times the defined minimum salary In the case of slander, an individual has the following options: 1 – To publically refute, in the media in question, the facts considered slanderous, and/or to have his/her reply published 2 – By demanding compensation of 2,000 times the defined minimum salary Lawyer Ara Ghazaryan argues that the courts must balance two conflicting interests – the private and public. “On the one hand, the violated rights of the individual must be restored and on the other, to see to it that the verdict does not have a chilling effect of the media. If the practice of the courts develops along the path of defending the private interests of the individual, in the long-term, it can have devastating consequences for free speech rights.” The lawyer notes that the European Convention contains set principles regarding the slander article that have been applied for more than ten years. Similar principles have been articulated by the Article 19 organization in its study of slander. Then there is the following abridged opinion of the OSCE – the court must strike a balance between the conflicting interests of both parties. Given the examples of Armenian court cases known to us all, Mr. Ghazaryan argues that judges rule in favor of private interests; violating the above-mentioned principle of balance. These examples show that the courts are exercising several compensation norms at the same time. In the case of Levon Kocharyan v Haykakan Zhamanak, adjudicated in 2009, the court ordered the paper to pay the 3 million AMD sought by the plaintiff and issue a retraction of said article. In the case brought by National Assembly MP’’s Samvel Aleksanyan, Levon Sargsyan and Ruben Hayrapetyan against Haykakan Zhamanak, the court ordered the defendant to publish a retraction and compensate each plaintiff 2,000,044 AMD Lawyer Ghazaryan says that the court must follow the following principle when arriving at a verdict; i.e. is it necessarily appropriate to issue a monetary compensation award to individuals who have no real need of the funds and must maximum amounts be awarded when such amounts can have a silencing effect on the media. The Article 19 organization also observes that, “The dissemination of actual fact must not be condemned, since an individual cannot defend the personal worthiness he or she doesn’t have in the first place. What type of media will we have in the future – one that exercises self-censorship or self-responsibility? Lawyer Ghazaryan argues that the practice of compensation for moral damage can have two consequences. “One the one hand, the media will lean towards self-censorship, and on the other, they will tend to become more responsible in their actions.” As we go to press, the case of Bella and Sedrak Kocharyan (wife and son of former President Robert Kocharyan) against the newspaper Zhamanak is being heard in the Kentron Court. The plaintiffs are demanding that the paper issues a retraction and compensates them to the tune of 6 million AMD for insult and slander. The paper is being asked to pay 1 million in injury costs, 2 million for slander and 3 million for incurred legal fees. The issue of compensation for legal fees is a serious and sticky matter that has previously pitted citizens against lawyers. Judges can use their discretion to define normal legal fees regardless of any contract signed by the client, and central in this regard is who is the compensation being demanded from. At one time, the RA Chamber of Advocates had been studying the issue of courts expenses, including lawyers’ fees, in an attempt to define some common sense guidelines for judges on the bench. The study never became an official document. Then too, there appears to be a double standard when it comes to who can actually be compensated for injury or slander. Remember the case of environmental activist Mariam Sukhudyan. She filed charges against the Armenian police for 1 million AMD in moral compensation, arguing that the Police Chief Alik Sargsyan violated her “presumed innocence till proven guilty” right. The court struck down her civil case for compensation. In another example, the court rejected the suit filed by MP Zaruhie Postanjyan to remove the decision by the examiner to drop criminal charges. The MP had demanded that criminal charges be levied against the newspaper Azatamtutyun for publishing material of a defamatory nature. In this specific case, the attitude of the court might have been different had the compensation claim not involved the authorities.