CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 janvier 2017

.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 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 17 January 2017   FIRST SECTION Application no. 64004/11 DARESKIZB LTD against Armenia lodged on 2 February 2012 STATEMENT OF FACTS The applicant, Dareskizb, is a limited liability company with its registered office in Yerevan. It is represented before the Court by Mr   V.   Grigoryan, a lawyer practising in Yerevan. A.     The circumstances of the case The facts of the case, as submitted by the applicant company, may be summarised as follows. The applicant company publishes Haykakan Zhamanak , a daily newspaper. On 14 October 2010 an article was published in issue no. 188 with the headline “Seven out of Eight are in the List”. It read as follows: “To our knowledge, the National Security Service, the Prosecutor’s Office and other law-enforcement bodies of the Russian Federation, in the course of an investigation into a number of criminal cases related mostly to drug and human trafficking and money laundering, have disclosed that [certain] Armenian officials are also involved in these crimes. Russian law-enforcement officials have disclosed that Russian criminal gangs have close ties with various Armenian officials and have compiled a list of Armenian officials, including 32 names linked to various criminal cases and having ties with Russian criminal gangs. To our knowledge, the representatives of the Prosecutor’s Office of the Russian Federation have spoken about this list with the President of the Armenian National Club Miabanutyun , [S.K.]. The top management of the Prosecutor’s Office of the Russian Federation has unofficially shared this list with the Prosecutor General of Armenia, [A.G.], and the Chief of the National Security Service of Armenia, [G.H.]. The Russians have raised the question of holding the persons mentioned in the list liable. However, the above-mentioned Armenian officials have replied to their Russian colleagues that they do not have the power to solve the problem. To our knowledge, the first seven names on the list compiled by the Russian law-enforcement officials include Sashik Sargsyan, MP and brother of the President; Ruben Hayrapetyan (aka Nemets Rubo) and Levon Sargsyan (aka Flourmill Lyovik), MPs; Gagik Khachatryan, Chief of the State Revenue Committee of Armenia; Samvel Aleksanyan (aka Lfik Samo), MP; Hovik Abrahamyan, Speaker of Parliament; and Gagik Tsarukyan, head of the parliamentary faction Bargavatch Hayastan . To our knowledge, the Russian law-enforcement officials have not included [President] Serzh Sargsyan’s name since they excluded from the very beginning the possibility of raising the question of holding him liable.” On 26 October 2010 three of the above-mentioned members of parliament, Ruben Hayrapetyan, Levon Sargsyan and Samvel Aleksanyan (hereinafter, “the three MPs”), addressed a letter to the applicant company demanding a retraction of the entire article. They argued that the information it contained did not correspond to reality and had been published without prior verification. Attached to their letter was a text of retraction. By his letter of 1 November 2010, the editor-in-chief declined to issue a retraction on the grounds that the three MPs had failed to specify the alleged factual inaccuracies. Furthermore, he denied that the information in question had been published without prior verification, alleging that it had been confirmed by the president of the Moscow-based Armenian National Club, Miabanutyun , S.K., who had been informed about the facts contained in the article by Russian law-enforcement officers who had had a discussion with him in order to have a fuller picture regarding the activities of a number of Armenians. S.K. had seen at first hand the list in question, which had included their names. On 2 November 2010 the applicant company published another article entitled “Moscow is after the ‘Serzhs’”, which featured an interview with S.K. containing the above allegations and further details. S.K. stated, in particular, that the Armenian National Club had established an anti-corruption centre in Moscow dealing with revelations of corrupt practices among Armenian officials. It had for a long time been studying corruption and embezzlement in Armenia, as well as various other types of criminal schemes involving Armenian officials, and had occasionally published articles in the Russian press. In this connection, a number of Russian law-enforcement agencies had sought consultations with it, during which they had been informed that various criminal cases were pending involving the mentioned officials. Most of that information was confidential and it had signed an undertaking to uphold the secrecy of the investigation. S.K. added that the list had initially included thirty-two names, but had later been extended to thirty-six. On 8 November 2010 the three MPs instituted civil proceedings against the applicant company, claiming that the above-mentioned articles contained information that did not correspond to reality and tarnished their honour and dignity, and seeking its retraction and payment of damages for defamation. They argued, inter alia , that the applicant company had failed to verify the information before publishing it. Attached to their claim was the text of the requested retraction. On 2 December 2010 the applicant company filed its observations in reply, objecting to the claim and arguing that the articles in question did not in any way violate the plaintiffs’ rights. On 7 February 2011 the Kentron and Nork-Marash District Court of Yerevan allowed the claim, ordering the applicant company to publish a retraction and to compensate each plaintiff for non-pecuniary damage in the amount of 2,000,000 Armenian drams (AMD) and legal costs in the amount of AMD 44,000.The District Court held that a statement was considered to be defamatory if it met the following criteria: (a) it tarnished a person’s honour, dignity or business reputation; (b) it did not correspond to reality; and (c) it was made publicly. In the present case, the statement alleging the plaintiffs’ involvement in “drug and human trafficking and money laundering” concerned acts of a criminal nature that were dangerous for society, and its effect was therefore tarnishing. The statement had also been made publicly. As regards its veracity, pursuant to Article 1087.1 of the Civil Code the burden of proof was on the applicant company. However, the applicant company had failed to produce any evidence demonstrating that the statement in question corresponded to reality. Moreover, the plaintiffs had produced a letter from the General Prosecutor’s Office of Russia dated 19 October 2010, stating that having studied an enquiry submitted by the General Prosecutor’s Office of Armenia regarding the investigation into the criminal cases mentioned in the article of 14 October 2010, the General Prosecutor’s Office of Russia had found no material confirming the plaintiffs’ involvement in criminal acts within the Russian Federation. It followed that the statement was fictitious and did not correspond to reality. The District Court concluded that, in the light of the above, the contested statement amounted to defamation. It ordered that the following text of retraction be published: “Information was published on the front page of issue no. 188 of 14 October 2010 of the Haykakan Zhamanak daily newspaper, under which there were photos of eight persons, including Members of the Armenian Parliament, Samvel Aleksanyan, Ruben Hayrapetyan and Levon Sargsyan. The article concerned the involvement of certain Armenian public officials in criminal cases instituted in the Russian Federation on account of drug trafficking, human trafficking and money laundering. The statements presented in the article do not correspond to reality and were presented without checking their veracity.” On 11 April 2011 the applicant company lodged an appeal. On 9 June 2011 the Civil Court of Appeal dismissed the appeal and upheld the judgment of the District Court. On 9 July 2011 the applicant company lodged an appeal on points of law. On 3 August 2011 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit. The applicant alleged that the amount it had been ordered to pay in damages was more than three times as much as its monthly income (about AMD 1,800,000). It had therefore had to raise funds among its readers in order to comply with the judgment. 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 may 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 company complains under Article 10 of the Convention that its right to freedom of expression was breached.   QUESTION TO THE PARTIES Has there been a violation of the applicant company’s right to freedom of expression under Article 10 of the Convention, in particular its right to impart information and ideas?