CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 février 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 23 February 2016   FIRST SECTION Application no. 34787/12 Gharib MITICHYAN against Armenia lodged on 29 May 2012 STATEMENT OF FACTS The applicant, Mr Gharib Mitichyan, is an Armenian national who was born in 1950 and lives in Lernapat village, Armenia. He is represented before the Court by Ms L. Hakobyan and Mr T. Yegoryan, lawyers practising in Yerevan. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In March 2010 criminal proceedings were instituted against the Mayor of Lernapat village, V.Y., who was charged with abuse of authority and official falsification, on the basis of a complaint from more than 250 villagers. In the course of the investigation a number of villagers gave testimony which contained, inter alia , the following allegations: (a) V.Y. had granted financial benefits to his relatives, including his parents, sister, cousins, uncles and aunts; (b) he had exempted his relatives from paying property tax on their vehicles; (c) he had paid for his publications from the local budget; (d) he had decided to dismiss the municipality driver and appointed himself as driver, with an increase in salary; and (e) he had ordered that one month’s salary and financial benefits in the same amount be paid to him in order to go on leave. The outcome of these proceedings is not clear. On 1 September 2010 an article entitled “Remove This Turk From Among Us” was published in the daily newspaper Zhamanak (Time) which contained interviews with a number of villagers concerning V.Y. The applicant was among those interviewed, and his statements were published as follows: “... It is true that at the beginning we did not realise, but lately he has removed his mask and started seriously to harm people. Some bushes were growing under the fence and were in the way when we were carrying grass. We cut them, so the man took us to court. But why? What was my fault? Because I am allegedly an opposition supporter and I allegedly caused harm to nature in the amount of 40,000 [Armenian] drams [(AMD)].” In reply to the journalist’s question as to whether he had complained to any authority, the applicant stated: “No. Where can I complain? There has to be a government, a State. This man has been robbing us for ten years and no one has been able to do anything to him, but within a month they made me put my hand on the Bible so that I would not lie and I would say that I cut a tree. So I had to deprive my children of [AMD] 20,000 in order to pay and I will have to pay more. I have six sons and 12 grandchildren. The Mayor himself allocated to my elder son a plot to build a house on, but asked for 500 dollars ... Then again he brought a complaint to the court saying that this was an illegal construction. We did not pay those 500 dollars since we knew what kind of a man he was. We thought we would try everything first and only then... I applied to the Mayor many times when my grandchild was near death. Instead of [AMD] 50,000 he gave me [AMD] 15,000 as a loan, but later – because of being short of money – wrote that I owed [AMD] 50,000. I am cancelling the [AMD] 15,000 he said. The other day I called my daughter-in-law and said: ‘My child, there is some money “written out” on you as well’, and she said: ‘But, dad, I have not received any money’. There is [AMD]   50,000 “written out” on me, [AMD] 50,000 “written out” on my son, and also on my other son, to whom he did not give anything at all, because he is a friend; he said: ‘Hovo, dear, bring that [AMD] 50,000, I need to buy petrol, I have expenses and I am in need’, but what need.... This place used to be occupied by some institution. I came here after the earthquake and I worked as a guard. I settled, having no place to live and no house. I raised so many children. I am disappointed with this country. Instead of thanking me, they take me to court... He is always oppressing us. You go to get some paper from him; he is always rude to you, saying: ‘Go away. These are not my working hours’. You never know when his working hours are. If I lose my mind a little, I will just slaughter [( կսատկացնեմ )] him. You cannot test someone’s patience forever ... We constantly live in an atmosphere of fear... He cannot act on his own. He has a patron. Even his sister and cousin openly say: ‘What can you do? What have you done for six months to be able to do anything now? We have good protectors and relatives’. He did not even allow us to sow wheat. He said: ‘What do you need it for? Grow grass and sell it’. But I have raised six children. I have sent them to the army. And now I have so many grandchildren ... This man has even changed the status of that land: he made the non-irrigable land into irrigable so that he collects more taxes. I have an extra [AMD] 120,000 written on me. I do not know where that amount came from... If a villager were to water the land, he would get results today. But this year because of that combine we transformed our land into fodder. He has nothing to gain from it. He does not have wheat. Nor does he have the time to go to the regional governor’s office to get that combine ... This man does not want to help the villagers.” On 1 October 2010, V.Y. instituted civil proceedings against the applicant for defamation and insult. He claimed that the applicant’s statements that he had asked for USD 500 for allocating a plot and then applied to a court, that he had granted financial aid in the name of the applicant’s daughter-in-law which she had not received, and that he had not allowed the applicant to sow wheat, were defamatory. He further claimed that the applicant’s statement about slaughtering him was insulting, because this word was used in the case of animals and not humans. V.Y. sought to oblige the applicant to retract his defamatory statements through the same newspaper and to apologise publicly for the insult. He also sought damages in the amount of AMD 2,000,000 for the defamatory statements and AMD   1,000,000 for the insults. The applicant, in his reply, objected to the claim and submitted that he enjoyed the right to have an opinion and to impart information under Article   10 of the Convention, especially on such subjects of public concern as the Mayor’s activities. His statements concerned the professional activities of the Mayor of his village and included information which had already been made public. The Mayor was in the spotlight because of his professional activities and he, as a villager, had the right to express his opinion on the subject. His statements corresponded to reality because already, back in March 2010, criminal proceedings had been instituted against the Mayor for abuse of authority and official falsification. In June 2010 the Mayor had been officially charged and there was an ongoing investigation, which was public. Thus, in his statements he had reproduced information on the basis of which the Mayor had been charged. On 6 June 2011 the Lori Regional Court decided to grant the Mayor’s claim partially, reaching the following findings. (a)     The following statement by the applicant was defamatory: “The Mayor himself allocated to my elder son a plot to build a house on, but asked for 500 dollars. Then again he brought a complaint to the court saying that this was an illegal construction. We did not pay those 500 dollars since we knew what kind of a man he was. We thought we would try everything first and only then. The Mayor would not give the documents of the house”. It contained factual information which did not correspond to reality and stained the Mayor’s reputation. The applicant was obliged under Article   48 § 1 of the Code of Civil Procedure (CCP) to prove the facts alleged, but he had failed to submit any evidence in support of his allegations that the Mayor had demanded USD 500 for allocating a plot and then applied to the court seeking to declare it an illegal construction. He could have submitted a copy of the decision on allocating the land, a copy of the claim submitted to the court or other evidence. Moreover, V.Y. had produced a number of documents demonstrating that this statement did not correspond to reality, including: (i) a copy of his decision of 30 August 2010, according to which the unauthorised construction built by the applicant’s son had been recognised as community property; (ii) a copy of a certificate issued by him on 26 April 2011, according to which he, during his entire tenure as Mayor, had never allocated any adjoining land since he had no authority to do so; (iii) a copy of the decision of the Community Council of 31 January 2011, according to which the Community Council had decided to authorise the Mayor to sell a plot of land and the house built on it to the applicant’s son; and (iv) a copy of his certificate of 8 February 2010, according to which the Mayor’s Office had never allocated a plot for building a house to the applicant or his sons, he had no such authority and he had never instituted proceedings to have a construction recognised as illegal, but instead an unauthorised construction built by the applicant’s son had been recognised as community property and had later been bought by the applicant’s son. (b)     The following statement by the applicant was defamatory: “The other day I called my daughter-in-law and said: ‘My child, there is some money “written out” on you as well’, and she said: ‘But, dad, I have not received any money’”. It was a public statement of fact which did not correspond to reality, since the applicant had failed to produce any evidence in support of his allegation that the Mayor had attributed a sum of money from the local budget in the name of the applicant’s daughter-in-law, which she had never received. The applicant could have submitted a copy of the relevant decision by the Mayor or the Community Council. Moreover, V.Y. had produced a certificate issued by him on 18 April 2011, according to which the applicant’s daughter-in-law had never received financial aid from the Mayor’s Office and no such aid had ever been registered in her name at the Mayor’s Office, because she had never applied for it. (c)     The following statement by the applicant was an insult: “If I lose my mind a little, I will just slaughter him”. This phrase was aimed at tarnishing the Mayor’s dignity and honour, since the word “slaughter” was not to be used in respect of humans, and did not pursue any paramount public interest. (d)     The following statement by the applicant was not defamatory: “He did not even allow us to sow wheat. He said: ‘What do you need it for? Grow grass and sell it’” because both parties testified in court that such a conversation had taken place. The Regional Court found that the applicant’s right to express an opinion on the Mayor’s official activities was not unlimited, and could be restricted for the protection of the reputation or rights of others. His argument that his statements corresponded to reality in the light of the criminal proceedings against the Mayor was unfounded, since the institution of criminal proceedings was not sufficient to consider the Mayor guilty of the charges against him, which could be established only by a final judicial conviction. The Regional Court ordered the applicant to apologise publicly for the insult and to retract the defamatory statements through declarations to be published in the Zhamanak newspaper. He was also ordered to pay damages in the amount of AMD 30,000 each, for the insult and the defamation. On an unspecified date the applicant lodged an appeal against this judgment, claiming, inter alia , a violation of his right to freedom of expression. On 29 September 2011 the Civil Court of Appeal decided to dismiss the applicant’s appeal and to uphold the judgment of the Regional Court. On an unspecified date, the applicant lodged an appeal on points of law. On 23 November 2011 the Court of Cassation decided to declare the appeal inadmissible for lack of merit. This decision was sent to the applicant by a letter of 9 December 2011. B.     Relevant domestic law 1.     The Civil Code Article 1087.1 prescribes that a person whose honour, dignity or professional reputation have been stained through insult or defamation, can institute court proceedings against the person who has made the insulting or defamatory statement. An insult is a public statement made through words, images, sounds, signs or other means with the aim of staining honour, dignity or professional reputation. A public statement may be considered not an insult if it is based on precise facts (except congenital defects) or pursues a paramount public interest. Defamation is a public statement of fact about a person, which does not correspond to reality and stains his honour, dignity or professional reputation. In cases of defamation, the obligation to prove the existence or absence of the relevant factual circumstances is placed on the defendant. This obligation will be shifted to the claimant if presenting such proof requires the defendant to perform unreasonable actions or efforts, whereas the claimant possesses the necessary evidence. A person shall be absolved from liability for defamation or insult if the statements of fact expressed or presented by him are a word-for-word or bona fide reproduction of information disseminated by a media outlet, or of information contained in a public speech, official documents, other mass media or any creative work, and if he makes a reference to the source (author). 2.     The Code of Civil Procedure Article 48 § 1 prescribes that each party to the proceedings must prove the facts alleged. 3.     The Local Self-Government Act Section 4 prescribes that a community is the democratic foundation of the State. The community is an administrative/territorial unit of local residents, by means of which they exercise local self-government either directly or through elected representatives. Section 7 prescribes that, for the purpose of exercising people’s authority and solving community problems, bodies of local self-government (community council and community head) shall be elected in accordance with a procedure prescribed by law. The community council is a representative body and exercises authority vested in it by the Constitution and this Act. The community head (in a town community – the town mayor, and in a village community – the village mayor) is an official representing the community, is the community’s executive body and exercises authority vested in it by the Constitution and this Act. COMPLAINT The applicant complains under Article 10 of the Convention that the interference with his right to freedom of expression was not necessary in a democratic society.   QUESTION TO THE PARTIES Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the interference with the applicant’s right to freedom of expression necessary in a democratic society within the meaning of Article 10 § 2 of the Convention? The parties are specifically asked to comment on whether the characterisation of the applicant’s utterances as statements of fact, rather than value judgments, was justified.