CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 janvier 2017

.s800EAC49 { font-size:12pt } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .sBB9EE52A { font-family:Arial } .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 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } Communicated on 20 January 2017   FIRST SECTION Application no. 37712/13 Tamara POGHOSYAN against Armenia lodged on 3 June 2013 STATEMENT OF FACTS The applicant, Ms Tamara Poghosyan, is an Armenian national who was born in 1949 and lives in Yerevan. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was the executive director of a fund called One Nation, One Culture (hereinafter “the fund”) at the material time. The fund was established in 2004 by a Government decree for the purpose of implementation of various cultural projects, including projects in Armenia and among the Armenian diaspora, and received government grants for that purpose. On 19 April 2010 the applicant had a meeting with the chief of staff of the Ministry of the Diaspora, F.Z., in his office. She alleges that F.Z. informed her that the Ministry had been entrusted by a Government decree of 8 April 2010 with implementing a project involving four conferences; the preparatory work was to be carried out by the fund. He further informed her that the first of the four conferences was to take place on 25-26 April 2010. Since there was little time left before the launch of the first conference and the fund was overburdened owing to other activities, most of the preparatory work had been already carried out by another entity, a private company, with which the fund was to sign a contract and which was also to implement the preparatory work for the remaining three conferences. She was then asked to sign two contracts on behalf of the fund: one with the Ministry and another one with the private company, whereby the fund was to outsource the implementation of the preparatory work for all four conferences to the company. The applicant alleges that she reacted by saying “Excuse me, but do you understand what you are proposing here? This is a classic money-laundering scheme!” She also alleges that she refused to sign the contracts but, in order to break the impasse, agreed to receive them if accompanied by an official letter and to submit the fund’s proposals and comments in reply. F.Z. then gave her the two contracts together with a letter signed by him and dated 19 April 2010 with the following content: “We present to you the draft contract envisaged by the project approved by [the Government decree of 8 April 2010] to be signed between the Ministry of the Diaspora and [the fund]. You are kindly requested to submit your opinion (proposals and comments) concerning the contract within one day.” On 20 April 2010 the applicant addressed a letter to F.Z., containing her proposals and comments regarding “the two contracts and their annexes attached to [the letter of 19 April 2010]”. She argued in her letter, inter alia , that the outsourcing of work to a third entity would create additional costs. On 22 April 2010 the applicant signed a contract with the Ministry on behalf of the fund, undertaking to carry out the preparatory work for the four conferences in exchange for a grant. She alleges that this was the result of three days of heated debates and that the contract excluded the part of the preparatory work for the first conference which had been already carried out by the private company. On 7 April 2011 the applicant gave an interview to Radio Liberty with the following content: “We were in the office of the chief of staff who said ‘Ms Poghosyan, could you please sign these two contracts?’ I said ‘What are these contracts?’ He said ‘Ms Poghosyan, taking into account the time constraints and your being busy, we have already commissioned the implementation of that project, specifically the preparatory work for the conference, which has been done by another company and you have nothing left to do. Please sign this contract in order to delegate your functions related to the preparation of the conference to that company’. I said ‘Excuse me, but do you understand what you are proposing here? This is a classic money-laundering scheme!’ I am the responsible person under the Government decree. What right do I have not to implement a Government decree? I don’t even have grounds for that. Why shouldn’t I? If I had been informed in time, I would have said I would do it or not do it.” On 14 April 2011 F.Z. instituted civil proceedings against the applicant, claiming that her interview given to Radio Liberty had contained defamatory statements tarnishing his honour and dignity and seeking their retraction and payment of damages in the amount of 2,000,000 Armenian drams (AMD). He argued that he had never asked the applicant to sign two contracts as alleged by her and she had never made any statement concerning money laundering at their meeting. On 19 May 2011 the applicant filed her observations in reply, insisting on her account of events and arguing that she had exercised her right to freedom of expression. On 29 June 2012 the Avan and Nor-Nork District Court of Yerevan partially granted the claim, ordering the applicant to publish a retraction through Radio Liberty and to pay damages and legal costs in the amount of AMD 106,000 and dismissing the remainder of the claim for damages. The District Court found that the statement “Excuse me, but do you understand what you are proposing here? This is a classic money-laundering scheme!” had pursued the aim of tarnishing F.Z.’s honour and dignity. In particular, the applicant’s allegation that F.Z.’s letter of 19 April 2010 had been accompanied by two contracts instead of one, was unsubstantiated since that letter had mentioned only one contract to be signed between the Ministry and the fund. The plaintiff had been a public official and a representative of the executive, therefore the applicant’s statements – which had not corresponded to reality – threatened his standing in society. The text of the retraction to be published, as requested by the plaintiff, read as follows: “I, Tamara Poghosyan, state that the chief of staff of the Ministry of the Diaspora, [F.Z.], never asked me to sign two contracts. What was at issue was the grant contract ... signed on 22 April 2010 between the Ministry of the Diaspora and [the fund]. I have never expressed the opinion that it was a classic money-laundering scheme in the office of the chief of staff of the Ministry of Diaspora, [F.Z.].” On an unspecified date the applicant lodged an appeal. On 5 December 2012 the Civil Court of Appeal dismissed the appeal and upheld the judgment of the District Court. On an unspecified date the applicant lodged an appeal on points of law. On 30 January 2013 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. B.     Relevant domestic law Article 1087.1 of the Civil Code provides that a person whose honour, dignity or business reputation has been tarnished through insult or defamation can institute court proceedings against the person who 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 tarnishing someone’s honour, dignity or business 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 tarnishes his or her honour, dignity or business 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 of liability for defamation or insult if the statements of fact expressed or presented by him are a verbatim 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 or she makes a reference to the source (that is to say the author). COMPLAINT The applicant complains under Article 10 of the Convention that her right to freedom of expression was breached. QUESTION TO THE PARTIES Has there been a violation of the applicant’s right to freedom of expression guaranteed by Article 10 of the Convention?