Published on 20 September 2021

FOURTH SECTION

Applications nos. 34286/15 and 34321/15 START MEDIA Ltd. against Armenia and HRAPARAK ORATERT Ltd. and Susanna SIMONYAN against Armenia lodged on 27 June 2015 and 24 June 2015 respectively communicated on 30 August 2021

SUBJECT MATTER OF THE CASE

The present applications were introduced by a private company, Start Media Ltd (no. 34286/15), which at the material time ran a web-based media site, and another private company, Hraparak Oratert Ltd, which at the material time published a newspaper, and its journalist, Ms Simonyan (no. 34321/15). The applicants complain under Article 10 of the Convention about a court order requiring the disclosure of their journalistic sources. In particular, in May 2014 the applicant companies each published an article in the media outlets run by them – the applicant journalist being the author of the newspaper’s article – implicating a regional police chief in violence against third persons, namely two prominent athletes. Following these publications, on 30 May 2014 a criminal case was instituted on account of excess of authority by a public official accompanied with the use of violence. The investigator dealing with the case requested that the applicant companies disclose their sources, but both refused to do so.

On 26 June 2014 the first-instance court, upon the investigator’s application, ordered that the applicant companies disclose their respective sources with reference to Articles 14, 41 and 279 of the Code of Criminal Procedure (CCP) and section 5 § 2 of the Mass Media Act. The court noted that the legitimate aim of such disclosure was the protection of the rights and interests of others, in this case the two athletes. It held that in the given case the disclosure of journalistic sources was necessary since the authorities had exhausted all alternative measures to protect the public interest and the legitimate interest of such disclosure outweighed the public interest in the non-disclosure. In particular, the publications concerned an alleged incident between the regional police chief and two well-known athletes and only a comprehensive and objective examination of the criminal case could dissipate any doubts held by the public. This decision was upheld by the higher judicial instances and the final court decision was served on the applicant companies on 27 December 2014.

On 20 October 2015, upon the applicant companies’ applications lodged in June and July 2015, the Constitutional Court examined the constitutionality of section 5 § 2 of the Mass Media Act and Articles 14, 41 and 279 of the CCP. The Constitutional Court held that the domestic provisions in question were compatible with the Constitution. However, Articles 14, 41 and 279 of the CCP had been interpreted inaccurately and were not applicable to the case, whereas section 5 § 2 of the Mass Media Act had been applied with an interpretation which was at variance with its constitutional meaning. In particular, the courts had placed the emphasis chiefly on the necessity of uncovering a grave or a particularly grave offence, without giving due consideration to the question whether the means employed were proportionate to the legitimate aim pursued, whereas the public interest in the non-disclosure could be outweighed only where the disclosure was necessary for the protection of human life, the prevention of a grave crime, or ensuring the judicial protection of a person accused of a grave crime. The grounds for ordering the disclosure provided by the courts had thus failed to comply with the principles of legal certainty and proportionality

It appears that no re-examination of the applicant companies’ cases took place and, according to the information available, the disclosure order was enforced at least in respect of the applicant company in the second case (no. 34321/15).

QUESTION TO THE PARTIES

Has there been a violation of the applicants’ right to freedom of expression contrary to Article 10 of the Convention (see Goodwin v. the United Kingdom , 27 March 1996, §§ 39-40, Reports of Judgments and Decisions 1996 ‑ II; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 50-51, 14 September 2010; and Jecker v. Switzerland , no. 35449/14, §§ 30-33, 6 October 2020)?