Point of View

Constitutional Court commented on article 1087.1

15.11.2011

RA Constitutional Court today made a decision according to which article 1087.1 of Civil Code (points of defamation and insult) corresponds to the Constitution, however, "there is a collision between freedom of media and human's dignity".

In the decision comprised of 37 pages, the Constitutional Court made comments which according to RA Human Rights Defender can be useful for the defense of freedom of speech.

HRD Karen Andreasyan applied to Constitutional Court on the issue of anti-constitutional provisions for defamation and insult. According to Karen Andreasyan, it should be determined whether Article 1087.1 of the RA Civil Code complies with the Article 14, as well as with the 1st, 2nd and 3rd parts of the Article 27 and with the Article 43 of the RA Constitution. 

He expected the Constitutional Court to find the balancing point between freedom of speech and defense of human's dignity.

"The article 1087.1 of the RA Civil Code contains points, which give the courts wide margin of appreciation", said Karen Andreasyan during the court trial on November 15.

He mentioned all provisions and terms that are not clearly defined in the law, which therefore can be differently commented by different courts. Besides, according to HRD, the courts when making decision about the amount of compensation, do not take into consideration the capacity of the media and the principles of ECHR, according to which the amount of compensation should not prevent the future activities of the media or lead it to bankruptcy.

According to Andreasyan, ECHR commented in one of its precedent cases that the public figures should be more tolerant towards the criticism to their address. In case of our courts HRD mentioned that the courts make vice versa decisions, i.e. they take into consideration the high position of the person who filed a lawsuit against the media and exercise the top amount of the compensation. However, quite often this amount is not compatible with the alleged damages.

The representative of RA National Assembly, the Chief Specialist of the Legal Department of RA NA Ani Mkhitaryan presented the viewpoint of RA National Assembly. She stated that the disputed articles correspond to the Constitution therefore the application of HRD is groundless and is subject to rejection.  

During the break Karen Andreasyan answered to www.hra.am question on whether the problem is the contradiction of article 1087.1 with the Constitution or its legal implementation. Karen Andreasyan: "There are unclear and uncertain points in the law itself and whether they should be clarified in the NA by making amendments to the law, or changes should be made in the position of Constitutional Court, or in the precedent cases of the Court of Cassation, today the Constitutional Court will answer to this question. We expect clear answer from the Constitutional Court on where people should expect that clarity."

Karen Andreasyan is generally satisfied with the decision of the Court since it referred to all points that he raised in his application.

HRD particularly stressed the comment of the Court on the amount of compensation. According to him if the comments made in the decision of the Constitutional Court are taken into account, the lawsuits in the courts against the media will end up with decisions in favor of freedom of speech.

Mary Alexanyan

Source: www.hra.am