Communicated on 19 October 2016

FIRST SECTION

Application no. 64023/11 INVESTIGATIVE JOURNALISTS NGO against Armenia lodged on 3 October 2011

STATEMENT OF FACTS

The applicant organisation, Investigative Journalists NGO, is a non ‑ governmental organisation which is based in Yerevan. It is represented before the Court by Ms L. Hakobyan and Mr V. Grigoryan , lawyers practising in Yerevan.

A. The circumstances of the case

The facts of the case, as submitted by the applicant organisation, may be summarised as follows.

The applicant organisation is a non-profit organisation whose aims are to promote and strengthen investigative journalism in Armenia. Since 2001 it has run a news website devoted primarily to investigative journalism publications. It appears that the applicant organisation also commissions independent journalists to write investigative articles.

On 20 May 2008 one such article written by an investigative journalist, V.S., was published by the applicant organisation in Azg newspaper as an insert. The article read as follows:

“ Who Is Pocketing the Money from the Sand Mine?

About 20 years ago a reservoir called White Water was put into operation on the river Aghstev at the southern entrance of the town of Ijevan . Very soon local poets and journalists named the artificial lake ‘ the Beauty of the Aghstev valley ’ . The artificial reservoir has a capacity of four million cubic metres. During spring flooding the Aghstev brings large amounts of sand and pebbles. About half of the unruffled surface of the White Water lake has dried up. Small artificial peninsulas and islets have been formed by the accumulation of sand brought by flooding. According to the most modest calculations, the accumulated sand and pebbles equal two million cubic metres.

The highway to Yerevan passes alongside the lake and thousands of passengers witness the extraction of sand from the lake every day. For several years, powerful excavators and cranes have operated in there. There is at present a construction boom in the administrative districts of Ijevan and Dilijan and there is high demand for sand. The driver transporting sand from there for construction in the town of Dilijan testified that 8,000 [Armenian] drams [(AMD)] was paid for one lorry of sand. The price of loading a bigger lorry could go up to [AMD] 20,000. Who are those who benefit from the wealth of this reservoir and who receive large illegal and untaxed profits on the pretext of cleansing the lake of mud?

According to our knowledge, this business is under the control of the Mayor of Ijevan , [V.N.]. To verify officially this information in October 2007 I sent an inquiry to the Tavush Regional Prosecutor ’ s Office concerning the extraction of sand from the lake. The reply received from the Senior Prosecutor of the Tavush Regional Prosecutor ’ s Office, [V.A.], on 22 October [2007] reads as follows: ‘ The Tavush Regional Prosecutor ’ s Office has carried out an inquiry in respect of your letter concerning the illegal use of sand from the White Water artificial reservoir by the Ijevan Mayor ’ s Office, as a result of which it has been revealed that a renovation and construction project is being implemented in the town park area and included in the list of works is the levelling of a 2-hectare green area of the park with mud, with a view to planting couch grass. As is stated in the letter received from the Mayor ’ s Office, only mud has been transported from the above lake for the purpose of levelling the municipality ’ s park and no sand has been or will be used. If there is reliable information on the illegal use of sand by the Mayor ’ s Office, you can report this to the Ijevan police or the regional prosecutor ’ s office.

It is first of all worth paying attention to the wording suggesting that the Ijevan town park does not belong to the local community but rather to the Mayor ’ s Office. Tavush Regional Prosecutor ’ s Office has failed to check the process taking place every day only a few kilometres away from its seat and relied on the assurances of the Mayor ’ s Office. However, those assurances can be rebutted by the official information received from the Mayor ’ s Office itself. In what follows we present information on the levelling of the 2-hectare green area of the park with mud. Shortly before the Ijevan Mayor ’ s election of 16 December 2007 the Ijevan Mayor ’ s Office published the promotional pre-election issue of its Ijevan newspaper. It says the following about the construction project in the town park: ‘ The park lawns, earthfill and Dutch grass have been planted by the joint efforts of World Vision and the Mayor ’ s Office. The overall cost of the project amounted to [AMD] 7,166,000, of which the contribution of the Mayor ’ s Office was [AMD] 2,028,000 in the form of salaries. 1,500 cubic metres of soil has been imported and spread, and grass has been planted over an area of 4,000 square metres ’ .

Even those who had an “F” in mathematics at school can figure out that 4,000 square metres is 5 times less than 2 hectares. But let us forget about the troubled 2 hectares; the river can also bring mud along with sand. However, hundreds of tons of sand are being extracted in this area on a daily basis, which you cannot mask with mud. Furthermore, it is obvious from the published pictures that sand is being extracted not only from the White Water reservoir but also from the banks of the Aghstev river itself.

On whose balance-sheet are Ijevan ’ s White Water artificial reservoir and its surrounding territory? Is the right to use the sand from the reservoir granted to any physical or legal person, and are taxes from its use being paid to the State budget? Relying on the Freedom of Information Act, I sent a letter with these questions to the Mayor of Ijevan [V.N.], the Tavush Regional Governor, [A.G.], and the Tavush Regional Department of the State Environmental Inspectorate. Although 20 days have passed, neither the Regional Governor nor the Mayor of Ijevan has deigned to reply to my letter.

The head of the Tavush Regional Department of the State Environmental Inspectorate, [Z.S.], advised, in writing, to apply to the Ministry of Environment of Armenia. However, no answer has been so far provided to the inquiry submitted to the Ministry either. In the meantime, an official having close ties with the Tavush Regional Department of the State Environmental Inspectorate, who did not wish to disclose his name, said that last year the State Environmental Inspectorate had carried out comprehensive checks in respect of illegal sand extraction from the White Water reservoir, as a result of which Ijevan Mayor ’ s Office had received a hefty fine. The Mayor of Ijevan [V.N.] was on leave at the time and the signature of the Deputy Mayor, [K.O.], who was the Acting Mayor, had featured under the acts.

The State Environmental Inspectorate has filed a claim with the Sevan Administrative Court in this regard. However, Mayor [V.N.] is not someone who gives up easily. It has been revealed in retrospect that instead of his deputy he appointed the Secretary of the Mayor ’ s Office, [B.T.], as the acting mayor. Taking this into account the court did not accept the submitted administrative acts imposing fines as a valid ground and dismissed the claim.

The leaders of Armenia speak about the need for rule of law, filling the State budget holes and fighting against shadow economy, while the plundering of sand from Ijevan ’ s White Water takes place in front of everyone ’ s eyes. It is so obvious that it cannot even be regarded as being in the shadow. One just needs to open one ’ s eyes, if there is such a desire at all.”

On 26 May 2008 the same article was posted on the applicant organisation ’ s news website.

On 19 June 2008 the Ijevan Mayor ’ s Office filed a civil claim against the applicant organisation, seeking to oblige it to publish a retraction of the information contained in the publications of 20 and 26 May 2008 and to pay pecuniary damages. It argued, with reference to, inter alia , Article 19 of the Civil Code (CC) that the article “Who Is Pocketing the Money from the Sand Mine?”, published in Azg newspaper upon the applicant organisation ’ s initiative and then republished on their website, contained defamatory statements, namely untrue information concerning the Mayor ’ s Office and damaging to its work, as well as information tarnishing the Mayor ’ s honour, dignity and business reputation.

On 9 July 2008 another article, also written by V.S., was published by the applicant organisation in Azg newspaper, entitled “Will the Three Commissions ‘ Notice ’ the Illegal Use of the Reservoir Sand?”, which was later also posted on the applicant organisation ’ s website. It included the following passage:

“A commission has been set up also by the Tavush Regional Governor [A.G.] to examine the information contained in the ‘ Who Is Pocketing the Money from the Sand Mine? ’ article. The head of the Tavush Regional Department of the State Environmental Inspectorate, Z.S., is convinced that the sand is being extracted illegally from the Ijevan lake. According to him, the contract entered into by the Ijevan Mayor ’ s Office with three individuals for the purpose of “cleansing” the lake is illegal, because the Ministry of Environment has not carried out a study of the reservoir ’ s resources and has not given such authorisation. Along with sand and mud the river could also bring hazardous waste, whose use without an appropriate environmental expert opinion could have negative consequences. A question arises: if the lake is being cleansed, where are the hundreds of thousands of tons of mud being dumped, considering that an authorisation by the Environmental Inspectorate was required for its removal; otherwise the community should have awarded a philanthropist ’ s title to those illegally extracting the sand for cleansing the lake at their own expense. Thus, large amounts of sand have already been extracted for 4 or 5 years under the pretext of ‘ cleansing ’ .”

Referring further to the money allocated by the local council for the purposes of the lawsuit against the applicant organisation, it was stated:

“To what extent is it lawful or expedient to spend more than three thousand dollars from the community ’ s tight budget to ‘ vindicate ’ the Mayor when there are thousands of unresolved issues in the town? For example, the Mayor could have spent that money on renovating the poorly maintained road leading to his house. Dozens of Ijevan ’ s taxi drivers, driving every day on the ruined roads of the region ’ s capital have only ‘ kind words ’ for the Mayor.”

On 7 July 2009 the Kentron and Nork- Marash District Court of Yerevan decided to dismiss the claim. The District Court found, firstly, that the Mayor ’ s Office was not a legal person and could therefore not benefit from the rights guaranteed by Article 19 of the CC which applied only to physical and legal persons. Secondly, the published article did not contain any information tarnishing the business reputation of the Mayor ’ s Office. It did not allege that it was the Mayor ’ s Office which performed the illegal extraction of sand but rather posed a question as to who was responsible and indicated that, according to their knowledge, it was the Mayor. As regards specifically the Mayor ’ s claims of tarnished honour, dignity and business reputation, these were to be dismissed on the following grounds. The fact that sand was being illegally extracted from the reservoir was confirmed by the evidence in the case, as well as admitted by the Mayor ’ s Office itself, which had on several occasions complained to the relevant authorities about that fact. It is true that the article had imparted information about the Mayor, in particular, to the effect that it was he who controlled that illegal business. However, this was not presented as a proved fact but rather that there was certain information to that effect which, moreover, the respondent had tried to verify by applying to various authorities. As to the nature of that statement, it could not be considered as “tarnishing” because the respondent had simply posed a question and made attempts to find the answer. In any case, no conclusions tarnishing the Mayor ’ s honour, dignity and business reputation were made in the article. The District Court relied on, inter alia , Article 27 of the Constitution and Article 10 of the Convention.

On an unspecified date the Mayor and the Mayor ’ s Office lodged an appeal.

On 13 November 2009 the Civil Court of Appeal decided to grant the appeal and remit the case for a fresh examination. The Court of Appeal found, firstly, that the Mayor ’ s Office was a legal person and therefore had the right to demand a retraction under Article 8 of the Mass Media Act. Furthermore, the District Court had failed to examine properly the article in question in its entirety and focused only on the statement that the illegal business was controlled by the Mayor. Its finding that the imparted information did not tarnish the Mayor ’ s honour, dignity and business reputation was unfounded, because the District Court had failed to verify whether there was any evidence in the case confirming that the information contained in the article corresponded to reality. Article 19 of the CC placed the obligation of proving the veracity of the tarnishing information on those who imparted it, but the District Court had failed to examine any evidence to that effect.

On 9 July 2010 the Kentron and Nork- Marash District Court of Yerevan examined the claim anew and decided to grant it. The District Court stated that under Article 19 of the CC it was necessary to determine (a) whether the information in question was tarnishing and (b) whether it corresponded to reality. It went on to conclude that the information contained in the articles of 20 May and 9 July 2008 tarnished the business reputation of the Mayor ’ s Office and the Mayor ’ s honour and dignity. Furthermore, the applicant organisation had failed to submit any evidence proving that the information in question corresponded to reality, which meant that it was fictitious. This was also confirmed by the fact that the Mayor had, on numerous occasions, complained to the relevant authorities about the illegal extraction of sand from the reservoir by third persons. The District Court ordered the applicant organisation to publish a retraction in Azg newspaper and on its website and to pay a total of AMD 952,600 for costs and expenses, including legal and court fees.

On an unspecified date the applicant organisation lodged an appeal arguing, inter alia , that the judgment interfered with its freedom of expression in breach of Article 27 of the Constitution and Article 10 of the Convention. It argued in detail that the interference did not pursue a legitimate aim and was not necessary in a democratic society.

On 27 December 2010 the Civil Court of Appeal decided to dismiss the appeal. The Court of Appeal stressed at the outset the importance of the right to have one ’ s honour, dignity and business reputation protected as one of the highest values in the society. It further found it to be established, with reference to, inter alia , Article 19 of the CC, that the article “Who Is Pocketing the Money from the Sand Mine?” had tarnished the Mayor ’ s honour, dignity and business reputation. As regards the Mayor ’ s Office, the Court of Appeal found that, firstly, it was representing the community which was a legal person and, secondly, since the article concerned the Mayor of Ijevan it also directly concerned the community of Ijevan and the Mayor ’ s Office which acted on behalf of the community. The Court of Appeal lastly decided to decrease the amount of the award for costs and expenses to AMD 472,600.

On 2 March 2011 the Court of Cassation decided to declare the applicant organisation ’ s appeal on points of law inadmissible for lack of merit.

B. Relevant domestic law

1. The Constitution

Article 27, as in force at the material time, prescribes that everyone has the right to express freely his opinion. It is prohibited to force anyone to give up or to change his opinion. Everyone has the right to freedom of speech, including the right to seek, receive and impart information and ideas through any information medium and regardless of frontiers. The freedom of news and other information media is guaranteed.

2. The Civil Code

Article 19, as in force at the material time, prescribes that a citizen has the right to demand through court proceedings that information tarnishing his honour, dignity or business reputation be retracted, if the person who has imparted such information fails to prove that it corresponds to reality. If the information tarnishing a citizen ’ s honour, dignity and business reputation has been imparted by mass media, then it must be retracted through the same mass media. The rules contained in this Article regulating the protection of business reputation of a citizen equally apply to the protection of business reputation of a legal person.

3. The Mass Media Act

Section 8 prescribes that a person has the right to demand a retraction from a media entity of factual inaccuracies which violate his rights and are contained in the information imparted by the media entity, unless the latter proves that those facts correspond to reality.

COMPLAINT

The applicant organisation complains that the interference with its right to freedom of expression was in breach of the requirements of Article 10 of the Convention. In particular, it was not prescribed by law, did not pursue a legitimate aim and was not necessary in a democratic society.

QUESTION TO THE PARTIES

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