Communicated on 24 February 2016

FIRST SECTION

Application no. 37096/12 Kamsar TAMARYAN against Armenia lodged on 6 June 2012

STATEMENT OF FACTS

The applicant, Mr Kamsar Tamaryan , is an Armenian national who was born in 1965 and lives in Lernapat village, Armenia. He is represented before the Court by Ms L. Hakobyan and Mr T. Yegoryan , 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.

In March 2010 criminal proceedings were instituted against the Mayor of Lernapat village, V.Y., who was charged with abuse of authority and official falsification, on the basis of a complaint by more than 250 villagers. In the course of the investigation a number of villagers gave testimony which contained, inter alia , the following allegations: (a) V.Y. had granted financial benefits to his relatives, including his parents, sister, cousins, uncles and aunts; (b) he had exempted his relatives from paying property tax on their vehicles; (c) he had paid for his publicat ions from the local budget; (d) he had decided to dismiss the municipality driver and appointed himself as driver, with an increase in salary; and (e) he had ordered that one month ’ s salary and financial benefits in the same amount be paid to him in order to go on leave.

The outcome of these proceedings is not clear.

On 1 September 2010 an article entitled “Remove This Turk From Among Us” was published in the daily newspaper Zhamanak (Time) which contained interviews with a number of villagers concerning V.Y. The applicant was among those interviewed, and the following statements by him were published:

“I am the most well-off person in our village. I have watched our village being wiped out. People have even died of hunger in our village. I do not want to use his real name, because it sounds rude, but two years ago I told this very [V.Y.] ... that no Turk had ever set his foot into our village. He had an argument with me and I stood up to him. My grandfathers killed Turks in this village and did not allow them to conquer it, whereas he has obliterated this village. I am standin g up now so that at least in 50 years our village will resemble our old Lernapat ... The village has split into two. Nobody is able to work because he is bribing them [AMD] 5,000. Hunger is a bad thing and poverty is the worst thing in the world. These people think that if [V.Y.] stays as the village Mayor their benefits will be cut off. Today I am asking for an inspection from Yerevan to be sent here. There is an inhabitant in our village called [A.M.]. He is going to have his third child. His wife does not have as many brains as she has children, because she is not educated. She was deceived at the Mayor ’ s Office by [V.Y. ’ s] two sisters and [head of staff M.M.] who made her write that her husband was employed. That guy helps everyone. He has helped me, he has helped [A.B.], but he is not employed. He lives in a shack, his mother is disabled, he is in a very bad situation and he does not receive any benefits. We have to ask [President] Serzh Sargsyan again to send an inspection to the Mayor ’ s Office to see that today [V.Y. ’ s] sister and granddaughter receive benefits, that his sister works in the Mayor ’ s Office and his nephew is involved in big business in Moscow, today we all ask the government, we beg the government, we are all [supporters of the Republican Party] ... enough is enough, they need to stop this corruption, have pity on this people ... The bus that the village received as a gift from MP [A.H.] in order to transport children from the old village to the new one, [V.Y.] tried to sell it through the Vanadzor Mosaic [newspaper] and we returned it. Today we have a problem with drinking water. We simply want the government to find out what the Mayor is going to do with the two double beds which are at the Mayor ’ s Office. How could it happen that [V.Y. ’ s] father received AMD 630,000 in aid and [V.Y. ’ s] nephew received AMD 1,100,000 in aid, while there are hungry people in the village who received nothing? The school is about 200-250 metres away and we had victims there during the earthquake ... There were three powerful explosions ... If something happens because of these explosions, who is going to answer for it? When is all this going to end? He was told to repair the road to the cemetery and he said ‘ What do I care? ’ Had he lost anybody [in the earthquake], he would have been compassionate. I am asking the government, our village is a village with a capital letter, the only village where no Turk has ever set his foot, and today we have a Turk born from among us. We are asking that this Turk be removed from among us.”

On 1 October 2010 V.Y. instituted civil proceedings against the applicant for defamation and insult. He claimed that the following statements made by the applicant were defamatory: (a) “he has obliterated this village”; (b) “People have even died of hunger in our village”; (c) “Nobody is able to work because he is bribing them [AMD] 5,000”; (d) “She was deceived at the Mayor ’ s Office by [his] two sisters and [head of staff M.M.] who made her write that her husband was employed”; (e) “today [his] sister ... receive[s] benefits, that his sister works in the Mayor ’ s office”; (f) “what the Mayor is going to do with the two double beds which are at the Mayor ’ s Office”; (g) “[he] tried to sell [the bus] ... and we returned it” and (h) “He was told to repair the road to the cemetery and he said ‘ What do I care? ’ ”. V.Y. submitted, in particular, that during 2000 and 2010 he had implemented more than 40 projects as a Mayor aimed at improving and developing the village. A school, a com munity centre and more than 120 houses had been built, the medical centre had been repaired, drinking water and irrigation pipes had been laid and the community had been supplied with gas. No one had ever died of hunger in the village. He had never bribed anyone. A.M. ’ s wife had submitted an application to the Mayor ’ s Office seeking benefits, in which she had indicated that her husband was unemployed. He had only one sister living in the village, while head of staff M.M. had been absent at the time this application was submitted and could not have dictated anything to A.M. ’ s wife. He alleged that his sister did not receive any benefits and submitted a certificate in support of this allegation. With reference to the applicant ’ s statement about the double beds, he alleged that there was a small room on the ground floor of the Mayor ’ s Office which was used to accommodate guests for cultural events and literary meetings. Furthermore, the bus in question, which was community property, had not been used for two years and the Local Council had decided to sell it. The bus had been auctioned through a local newspaper, but there had been no buyers; the applicant had tried to misrepresent this as if they had chosen to return the bus. He had had the cemetery road repaired on numerous occasions, including in 2010, and such works had been included in his programme for 2009 to 2012 after being elected Mayor. V.Y. further claimed that the statement “Today we have a Turk born from among us. We are asking that this Turk be removed from among us” was both defamatory and insulting because it defamed his ethnic background and it had an insulting meaning. He sought to oblige the applicant to retract his defamatory statements through the same newspaper and to apologise publicly for the insult. He also soug ht damages in the amount of AMD 2,000,000 for the defamatory statements and AMD 1,000,000 for the insults.

The applicant, in his reply, objected to the claim and submitted that he enjoyed the right to have an opinion and to impart information under Article 10 of the Convention, especially on such subjects of public concern as the Mayor ’ s activities. His statements concerned the Mayor ’ s professional activities and he, as a villager, had the right to express his opinion on the subject.

On 3 August 2011 the Lori Regional Court decided to grant the Mayor ’ s claim partially, reaching the following findings.

(a) The following statements by the applicant were defamatory: “he has obliterated this village” and “He was told to repair the road to the cemetery and he said ‘ What do I care? ’ ”. They contained factual information which did not correspond to reality and tarnished the Mayor ’ s honour and dignity. The applicant was obliged under Article 48 § 1 of the Code of Civil Procedure (CCP) to prove the facts alleged, but he had failed to submit any evidence in support of his allegations that the Mayor, during his tenure, had committed any acts which had been aimed at harming or destroying the village or that he had refused to have the road repaired. Moreover, V.Y. had produced a number of documents demonstrating that this statement did not correspond to reality, in particular, that there had been 45 types of works performed in Lernapat village.

(b) The following statement by the applicant was defamatory: “Nobody is able to work because he is bribing them [AMD] 5,000 each”. It was a public statement of fact which did not correspond to reality, since the applicant had failed to produce any evidence in support of his allegation that the Mayor paid AMD 5,000 as a bribe to people so that they would not complain about him. V.Y. had stated in court that he had not paid any amounts to anyone in order to stop them from complaining about him.

(c) The following statement by the applicant was defamatory: “She was deceived at the Mayor ’ s Office by [V.Y. ’ s] two sisters and [head of staff M.M.] who made her write that her husband was employed”. Despite the fact that both the applicant and A.M. had stated in court that they had had such a conversation, and that A.M. had indeed told the applicant that V.Y. ’ s sisters and M.M. had made his wife write the declaration, the applicant had failed to make a reference to the source when reproducing this information in the newspaper article.

(d) The following statement by the applicant was defamatory: “today [V.Y. ’ s] sister ... receive[ s] benefits”. It was a public statement of fact which did not correspond to reality, since the applicant had failed to produce any evidence in support of his allegation that the Mayor ’ s sister received benefits.

(e) The following statements by the applicant were not defamatory: “People have even died of hunger in our village”, “The bus that the village received as a gift from MP [A.H.] in order to transport children from the old village to the new one, [V.Y.] tried to sell it through the Vanadzor Mosaic [newspaper] and we returned it” and “what the Mayor is going to do with the two double beds which are at the Mayor ’ s Office”. These were not statements of fact which did not correspond to reality, but only criticism of the Mayor ’ s activities, including such acts committed by him which had been aimed at alienating community property, acquiring property which – in the applicant ’ s opinion – was not necessary for the community, or providing social benefits to non-vulnerable persons.

(f) The following statement by the applicant was an insult: “I am asking the government, our village is a village with a capital letter, the only village where no Turk has ever set his foot, and today we have a Turk born from among us. We are asking that this Turk be removed from among us”. This was a public statement tarnishing V.Y. ’ s honour and dignity, which did not pursue any paramount public interest.

The Regional Court dismissed the applicant ’ s argument that he had only expressed his opinion about the Mayor ’ s official activities which, as a villager, he had the right to do, and which could not be viewed as defamation or insult.

The Regional Court found that the applicant ’ s right to express an opinion on the Mayor ’ s official activities was not unlimited and could be restricted for the protection of the reputation or rights of others. The Regional Court ordered the applicant to apologise publicly for the insult and to retract the defamatory statements through declarations to be published in the Zhamanak newspaper. He was also ordered to pay damages in the amount of AMD 300,000 for the insult and AMD 100,000 for the defamation.

On an unspecified date, the applicant lodged an appeal against this judgment, claiming, inter alia , a violation of his right to freedom of expression.

On 14 October 2011 the Civil Court of Appeal decided to modify partially the judgment of the Regional Court and to uphold its remainder. It found, in particular: (a) as regards the applicant ’ s statement “She was deceived at the Mayor ’ s Office by V.Y. ’ s two sisters and head of staff M.M. who made her write that her husband was employed”, that the fact that the applicant had not made a reference to the source of this information was not sufficient to qualify it as defamation. The statement did not directly concern the Mayor and therefore could not be viewed as defamatory in his respect; and (b) as regards the applicant ’ s statement “I am asking the government, our village is a village with a capital letter, the only village where no Turk has ever set his foot, and today we have a Turk born from among us. We are asking that this Turk be removed from among us”, it could not be qualified as an insult because the applicant had thereby considered the Mayor to be of a different ethnic origin, rather than insulting him. It was therefore to be viewed as defamation because it distorted the Mayor ’ s ethnic background. The Court of Appeal further decided to reduce the amount of award to AMD 200,000.

On an unspecified date, the applicant lodged an appeal on points of law.

On 7 December 2011 the Court of Cassation decided to declare the appeal inadmissible for lack of merit.

B. Relevant domestic law

1. The Civil Code

Article 1087.1 prescribes that a person whose honour, dignity or professional reputation have been stained through insult or defamation, can institute court proceedings against the person who has 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 staining honour, dignity or professional 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 stains his honour, dignity or professional 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 from liability for defamation or insult if the statements of fact expressed or presented by him are a word-for-word 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 makes a reference to the source (author).

2. The Code of Civil Procedure

Article 48 § 1 prescribes that each party to the proceedings must prove the facts alleged.

3. The Local Self-Government Act

Section 4 prescribes that a community is the democratic foundation of the State. The community is an administrative/territorial unit of local residents, by means of which they exercise local self-government either directly or through elected representatives.

Section 7 prescribes that, for the purpose of exercising people ’ s authority and solving community problems, bodies of local self-government (community council and community head) shall be elected in accordance with a procedure prescribed by law. The community council is a representative body and exercises authority vested in it by the Constitution and this Act. The community head (in a town community – the town mayor, and in a village community – the village mayor) is an official representing the community, is the community ’ s executive body and exercises authority vested in it by the Constitution and this Act.

COMPLAINT

The applicant complains under Article 10 of the Convention that the interference with his right to freedom of expression was not necessary in a democratic society.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention? In particular, was the interference with the applicant ’ s right to freedom of expression necessary in a democratic society within the meaning of Article 10 § 2 of the Convention? The parties are specifically asked to comment on whether the characterisation of the applicant ’ s utterances as statements of fact, rather than value judgments, was justified.