Communicated on 1 February 2018

FIRST SECTION

Application no. 15028/16 Hrachya HARUTYUNYAN against Armenia lodged on 4 March 2016

STATEMENT OF FACTS

The applicant, Mr Hrachya Harutyunyan , is an Armenian national who was born in 1953 and lives in Yerevan. He is represented before the Court by Mr A. Zeynalyan and Mr A. Ghazaryan , 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.

Between 2002 and 2011 the applicant worked at Electric Networks of Armenia, the main supplier of electricity in Yerevan which at the material time appears to have been owned by a Russian company called Inter RAO EES (hereafter, “the company”). He is currently retired.

On an unspecified date the company published an announcement entitled “Let Us Fight Together Against Corruption” on its website under the section called “Fight Against Corruption”, in which it called upon all those who had any information about corrupt practices at the company, including any actions which caused or could cause pecuniary damage to the company, to come forward with such information by contacting the hotline by email. The company promised to carry out an independent inquiry and guaranteed that all reports would remain anonymous and the principle of confidentiality would be respected. The reports would be forwarded to the Internal Audit Unit which was accountable only to the Board of Directors and not the management of the company. It was desirable to indicate a contact person and the preferred means of correspondence for any further inquiries. The information, if confirmed, would be sent to the security team and the management of the company for them to take appropriate measures.

On 26 March 2012 the applicant sent a report from his private email address to the relevant email address, alleging corrupt practices, including embezzlement on a large scale, on the part of the deputy head of the Security and Control Unit of the Electric Networks of Armenia, V.B.

The applicant alleges that on 11 July 2012 the security chief of the company, Y.M., contacted him and requested a meeting. At the meeting Y.M. showed him the report and asked whether the applicant was the author. After the applicant confirmed that he was, Y.M. asked him to sign a printed copy of the report.

On 18 July 2012 the applicant ’ s report was forwarded under the seal “confidential” to the head of the Security and Control Unit of Electric Networks of Armenia, G.M., who was asked to verify the information. It appears that G.M. presented the applicant ’ s report to V.B. and asked him to provide an explanation.

On 16 August 2012 V.B. instituted proceedings against the applicant for insult and defamation, seeking an apology and pecuniary and non-pecuniary damages.

On 15 July 2013 the Shirak Regional Court dismissed V.B. ’ s claim. The Regional Court held that the statement made by the applicant was not “public” within the meaning of Article 1087.1 of the Civil Code as it had been submitted in strict confidentiality.

On 12 August 2013 V.B. lodged an appeal.

On 20 November 2013 the Civil Court of Appeal quashed the judgment of the Regional Court and remitted the case on the ground that the Regional Court had erroneously interpreted what constituted a “public statement”. It held that the notion of “third person” implied a person to whom information was provided other than the plaintiff or the respondent, whereas the Regional Court had not considered Y.M. to be such a “third person”. An appeal on points of law lodged by the applicant against this judgment was declared inadmissible by a decision of the C ourt of Cassation of 15 January 2014.

On 3 March 2015 the Shirak Regional Court partially allowed V.B. ’ s claim, holding that the applicant ’ s report constituted a public statement within the meaning of Article 1087.1 of the Civil Code, since it was communicated to a third person, Y.M., and contained insulting and defamatory information. The applicant was ordered to issue an apology through the same medium and to pay 2,000,000 Armenian drams (AMD) [1] in compensation for insult and defamation. He was further ordered to pay legal and other costs in the amount of AMD 492,128 [2] .

On 25 March 2015 lodged an appeal, alleging, inter alia , a violation of Article 10 of the Convention.

On 19 June 2015 the Civil Court of Appeal dismissed the applicant ’ s appeal and upheld the judgment of the Regional Court.

On 20 July 2015 the applicant lodged an appeal on points of law which was declared inadmissible by the Court of Cassation in its decision of 19 August 2015. A copy of that decision was served on the applicant on 4 September 2015.

The applicant alleges that he had to give up his one-room flat in order to pay the judgment debt.

B. Relevant domestic law and practice

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).

In its decision of 27 April 2012 the Court of Cassation interpreted the phrase “public statement” contained in Article 1087.1 of the Civil Code as a statement made in the presence of at least one third person. Public statements could be made through internet and other means of telecommunication, as long as at least one third person was a recipient of such statements.

COMPLAINT

The applicant complains under Article 10 of the Convention that (a) the interference with his freedom of expression was not prescribed by law because the concept of “public statement” contained in Article 1087.1 of the Civil Code lacked legal certainty; and (b) the interference was disproportionate and not necessary in a democratic society because the courts failed to take into account the public importance of the information which he shared, given that it concerned allegations of corruption in a company providing public services, and because of the disproportionate amount of compensation which he was ordered to pay.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, in particular his right to impart information, contrary to Article 10 of the Convention?

The applicant is requested to submit a copy of the decision of the Civil Court of Appeal of 20 November 2013.

[1] About EUR 3,500 at the material time.

[2] About EUR 860 at the material time.