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Article 1087.1 Of The Civil Code - A Need To Amend, Clarify And Inte

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  • Article 1087.1 Of The Civil Code - A Need To Amend, Clarify And Inte

    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 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:

    "...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.

    http://hetq.am/eng/news/29359/article-10871-of-the-civil-code-%E2%80%93-a-need-to-amend-clarify-and-interpret.html

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