ARTICLE 1087.1 OF THE CIVIL CODE – A NEED TO AMEND, CLARIFY AND INTERPRET
Sara Petrosyan
09:00, September 16, 2013
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 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 dailyZhamanak and , 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 ) 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:
“…And today, Armenchik Darbinyan, the new Armenian Napoleonic
phenomenon was irked by an article of Suzan Simonyan. In his Facebook
page, that coward wrote…”
“…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 But this doesn’t mean he will be satiated with it…
“…Perhaps because Vazgen regularly (almost every day) organized
educational activities for the Armenchik-like despicable people…”O~I
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
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.
To date, coward Darbinyan has been able to steal the bread of my child
and the bread of Serobyan’s and many others’ kids …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
ifHetq had no official status in the case, then we are looking at a
possible verdict where there has been a breach of powers.
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