ARM-2011-3-003

a) Armenia/ b) Constitutional Court/ c) / d) 15.11.2011/ e) DCC-997/ f) On the conformity with the Constitution of Article 1087.1 of RA Civil Code/ g) Tegekaguir (Official Gazette)/ h).

Keywords of the systematic thesaurus:

Constitutional Justice - The subject of review-Laws

Fundamental rights – Civil and political rights - Human dignity

Fundamental rights – Civil and political rights – Right to freedom of expression

Keywords of the alphabetical index:

Human dignity, insult, defamation, right to freedom of expression, compensation.

Headnotes:

            Human dignity has a primary importance in free and guaranteed implementation of human and citizen’s basic rights and freedoms. The possible restrictions provided “by law” should be proportional and emanate from the nature of democratic principles of international law and national legislation and shouldn’t endanger basic contents of the human rights.

Summary:

            The RA Human Rights Defender challenged the constitutionality of Article 1087.1 of the RA Civil Code, which is dedicated to civil responsibility for insult and defamation. According to the applicant the provisions of the challenged Article caused legal uncertainty and created conditions for arbitrary and broad interpretation and application of it, as did not reveal the content of several terms which are vital for the given regulation. The applicant considers that the impugned Article does not enough precisely reveal the purpose of the compensation and the principles of the application of the compensation.

Within the given case the Constitutional Court analyzed the constitutional content of the challenged norms, the respective international documents, the legal positions of the European Court of Human Rights, the relevant legal and judicial practice of foreign countries. Based on the mentioned analysis the Constitutional Court stated certain basic legal positions within which the challenged provisions should  be interpreted and implemented, thus:

- any restriction of the right to freedom of expression must be defined by law, serve to the aim of protecting legitimate interest and be necessary for ensuring the given interest.

- Person’s honor, dignity or business reputation is protected from other persons’ defaming actions merely by civil regulation, and the expression “person” doesn’t concern to state bodies as legal entities.

- Terms “defamation” and “insult” must be considered in the context of existence of intention and an aim of defamation of a person.

- Material compensation cannot be defined for value judgments, which will restrict the fundamental right to freedom of speech in an unnecessary and disproportionate way, as the role of media is more than reporting just facts: it is obliged to interpret facts and events for informing the society and promote discussions on issues important for the society.

- The circumstance that media representatives are respondents cannot be considered as a factor for defining more severe responsibility.

- Domestic bodies’ decision must be based on acceptable assessment of facts - important for the case.

- One must apply approach with particular reservation while applying material compensation  for insult, taking into consideration the fact that European Court has repeatedly mentioned, that tolerance and wide views are in the basis of democracy and the right to freedom of expression protects not only generally acceptable speech, but also those expressions, which someone may concern thrilling, offensive and shocking,

- While indicating material compensation, its restricting influence on the freedom of expression should be properly taken into consideration, as well as possibility of legitimate protection of reputation through other available means.

- Non material compensation shall be applied as a prioraty for the damage caused by defamatory expressions (actions). Material compensation must be restricted by reimbursing the immediate damage caused to a defamed person’s honor, dignity or business reputation, and it should be applied in cases when non material compensation is not enough for reimbursing the damage,

- While deciding the legitimacy of compensation the respondent’s limited measures should be considered as a factor, his/her income should be taken into consideration, a disproportionate heavy financial burden which will make a crucial negative financial influence on his/her activity, shouldn’t be defined for the respondent,

- An applicant, who requires material compensation for non material damage, should prove the existence of that damage.

- The maximum ammount of compensation defined by law is applicable only in cases of existence of more serious and solid bases.

- Just critical assessment of facts, which doesn’t contain factual context, the falseness of which is possible to prove, cannot be a ground for compensation requirement. But, if a person’s good reputation is violated, even if the incorrect information has been a value judgment, non material compensation may be defined.

- While defining a compensation such factors should be taken into consideration as damage caused to feelings, absence of readiness of apologizing.

- The circumstance of using the right of not discovering journalist’s confidential sources of information of public interest cannot be interpreted to the detriment of respondent while deciding the ammount of compensation.

- Taking into consideration that in cases of politicians and people who hold public positions, publications regarding matters of public interest has a maximum protection, while deciding the ammount of compensation, applicant’s such status cannot be interpreted to the detriment of the respondent.

- It should be taken into consideration, whether extrajudicial forms of compensation, including volunteer or self-regulating mechanisms, have been supplicated and used for mitigating the damage caused to applicant’s honor and reputation.

- The parties should be compulsory offered to come to peace and a contribution should be made in this case. While estimating the damage, decision of conciliation should be observed as a mitigating circumstance.

- The right to protect the truth, the right to protect the opinion and the right to transmit other persons’ speech should be publicly recognized.

            The Constitutional Court recognized Article 1087.1 to be in compliance with the Constitution within the constitutional-legal content emanating from the legal positions expressed in the decision and international commitments undertaken by the Republic of Armenia.

Languages:

Armenian

English