Introduction

 

1.                   I have been asked to consider the conformity of certain defamation/insult provisions of the Criminal Code of Armenia with standards derived from the European Convention on Human Rights, in particular under Art.10. I offer these written comments further to an interesting and fruitful meeting with representatives of the Armenian government in Yerevan on 19 April 2004 .

 

2.                   We do not have any comparable provisions in our criminal law in the UK . There is an ancient common law offence of criminal libel. However in 1980 the highest constitutional court, the House of Lords, indicated that this offence could not be reconciled with Art. 10 principles. [1] There have not been any public prosecutions for this offence since then. Here, therefore, reputation is protected purely through civil law defamation provisions.

 

General principles

 

3.                   So that my comments are fully understood I will first describe the relevant principles under Art. 10. The wording of Art. 10 itself is important. It provides:

 

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

4.                   The first paragraph gives a wide right to freedom of expression. Six points, in particular, are of importance:

 

1. Art. 10(1) protects not only the substance of the ideas and information expressed but also the “form” of the expression. This includes the form of the actual language used. This is explained in more detail under the heading, “The tone of the expression”, below;

 

2. The freedom to “hold” opinions has been interpreted as the freedom to express the opinions held. Art 10 therefore protects the right to criticise, speculate and make value judgments and not simply the making of “true” statements (see Lingens v. Austria , judgment of 8 July 1986, Series A no. 103);

 

3. It is impossible to prove the truth of a value judgment. A legal requirement to do so would therefore offend against Art 10. The European Court of Human Rights (“E Ct HR”) in Strasbourg applies this principle strictly. It will scrutinise any statement the truth of which an appellant has been required to prove, in order to see whether it is really a statement of opinion. If it is , the interference will be unjustified provided the opinion has some foundation in fact and was expressed in good faith;

 

4. Where the statement was factual, Art. 10 implies a right to prove its truth. The speaker/author must always be given a fair opportunity to prove truth;

 

5. Although “everyone” has the Art 10(1) right, the E Ct HR has repeatedly emphasised the special role of the media in a democracy. The media is a “watchdog” on behalf of the public. It has a duty to impart, responsibly, information and ideas on all matters of public interest. Interferences with freedom of expression of the media must therefore be strictly justified;

 

6. Contracting states are subject to a “positive obligation” to apply the measures necessary to promote freedom of expression, especially by the media. This may require that domestic laws which lead to violations of the Art 10 right are either amended or repealed.  

 

5.                   The right identified in the first paragraph of Art. 10 is “presumptive” but not absolute. This means that public authorities may lawfully interfere with the exercise of the right but only where the interference can be justified under the second paragraph. This requires that it is justified as:

 

- “prescribed by law”;

 

- pursuing a legitimate aim under that paragraph and;

 

- “necessary in a democratic society”

 

(see Lingens paras 34-37). Where the state cannot justify the interference in this way, a “violation” is found. It is the last requirement that has produced the most argument before the E Ct HR and, in the Art. 10 area in particular, resulted in most violations. It means more than “reasonable” or “desirable”. Rather it implies a “pressing social need” for the interference.

 

6.                   A person claiming to be the victim of a violation of his/her Convention rights may complain to the E Ct HR. The court interprets the concept of an interference very broadly. It is well established that prosecution for a criminal offence arising out of an act of expression is an interference with the Art. 10 right. So is any finding of guilt and punishment. Once the interference is established, the burden shifts to the contracting state to justify it by showing that each of the above requirements for lawful interference is made out on all the facts of that case.

 

7.                   The

Strasbourg Court

exercises a supervisory jurisdiction. This means that it reviews:

 

…whether the reasons given by the national authorities to justify [that interference] are relevant and sufficient… [In doing so it] ….has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts… [see Zana v Turkey (1999) 27 EHRR 667].

 

In essence, it must be satisfied that the restrictive measure is proportionate to the Art 10(2) aim to be achieved on the basis of a proper assessment of the facts of the case.

 

8.                   The standard of justification varies. In cases involving interferences with freedom of expression a high standard applies. Here the justification must be “convincingly established” (see eg Barthold v Germany (1985) 7 EHRR 383 at 403).

 

9.                   Similarly the greater the restriction, the more convincing the justification must be. In Tolstoy Miloslavsky v UK (1995) 20 EHRR 442, the E Ct HR recognised that large damage awards in civil defamation claims were liable to be disproportionate to the damage to reputation suffered by the claimant. In doing so it emphasised the inhibiting (or “chilling”) effect that excessive damages wards have on freedom of expression (especially by the media) in general. Journalists will limit their own expression for fear that they will face civil proceedings for large amounts of damages. 

 

10.               The necessity for and proportionality of a criminal sanction will require very clear and specific justification. The court will consider in particular whether the state could have used other, less severe, means than the criminal sanction to achieve the Art 10(2) objective - eg protecting the reputation or rights of others. An obvious example of “other means” in this context is a civil remedy in damages. The inhibiting, or “chilling, effect of possible criminal proceedings for defamation and related offences is (if anything) even greater than that which results from high damages awards. This is clearly so where imprisonment is a possible punishment.

 

11.               The presumptive right under Art. 10(1) is very broad indeed. It covers all types of expression. Freedom of expression:

 

“…constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and the development of every man. Subject to Article 10(2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, also to those that offend, shock or disturb the state or any sector of the population . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”…” [emphasis added]

 

See Handyside v UK (1976) (para 49).     

 

12.               Moreover, when deciding a case involving an infringement of the Art 10(1) right, the E Ct HR is faced:

 

“…not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted…It is not sufficient that the interference involved belongs to that class of the exceptions listed in Art. 10(2) which has been invoked; neither is it sufficient that the interference was imposed because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms; the court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it…

 

[Sunday Times v UK (1979) (para 65)].

 

13.               Political and public interest expression is accorded the highest degree of protection. Attacks on politicians and other public figures attract particular protection since:

 

“… [The politician] inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance…”  

 

The same is true of attacks on the state. In Ozturk v Turkey , the

Strasbourg Court

noted that:

 

“…the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries…”

 

The Committee of Ministers Declaration on Freedom of Political Debate in the Media , adopted on 12 February 2004 , has recently re-emphasised these important principles. This also states that:

 

“ Damages or fines for defamation or insult must bear a reasonable relationship of proportionality to the violation of the rights or reputation of others … Defamation or insult be the media should not lead to imprisonment, unless the seriousness of the violation … makes it a strictly necessary and proportionate penalty …” . 

 

14.               The tone of the expression: Polemical, aggressive, exaggerated, provocative and insulting expression, especially by journalists, has all been found to fall within the protection afforded by Art. 10(1). In Oberschlick v Austria (No 2) [2] the conviction of a journalist for insult for calling a politician an “idiot” rather than a “Nazi” was held to represent a violation of Art. 10.

 

 

15.               An evolving view of what is “necessary in a democratic society”: The E Ct HR has repeatedly recognised that the interpretation and application of the Convention must change with changes in what society tolerates.  

 

16.               I hope that it is clear from the above, that the existence of a law does not “violate” Art 10. The violation occurs because the application of the law in a particular case cannot be justified according to the principles set out above.

 

The Criminal Code

 

Art 135 – Libel :

 

17. I have a number of concerns about the offence contained within this provision. 

 

18.               Opinions: The offence is committed by the dissemination “of false information humiliating the person’s good reputation”. During the meeting in Yerevan it was suggested that only defamatory factual information is included.

 

19.               If so (and this provision is to remain in the criminal code) this point should be emphasised in the wording of the offence. This could be achieved by identifying the distinction between statements of fact and opinion, and stating clearly that only statements of “pure fact” can lead to conviction for this offence.

 

20.               If there is any possibility of conviction under this provision for an expression of opinion , it must be made clear that there is a complete defence where the opinion:

 

-         has some foundation in fact and;

 

-         was expressed in good faith.

 

21.               A privilege to err: There does not appear to be a general defence in respect of statements made on matters of public interest. This is worrying, especially in the case of the media. Sometimes measures taken against a person for honest mistakes of fact in passing comment on matters of public interest, will amount to a violation of the Art. 10 right. [3] The E Ct Hr has recognised that sometimes such mistakes will be made in a democracy, even by the media acting responsibly and in good faith. This is particularly likely where an urgent news item is involved. A criminal punishment in such circumstances is likely to involve a violation.

 

22.               In order to avoid the risk of such violations, the wording of the offence should set out a defence of media privilege in making statements on matters of public concern. The defence should be available if, on a proper assessment of all of the statements made, there was a substantial basis of fact for criticisms of the complainant and the media organisation acted responsibly in publishing the material.

 

23.               A “category” based defence of absolute privilege: As I emphasised in our meeting, the media must be free to report fairly and accurately on certain proceedings without fear of prosecution in libel. The most obvious examples are reports of parliamentary and other governmental proceedings, and court reporting. Again, if this offence is to remain in the code these categories of “privileged” reporting must specified.

 

24.               Punishments : The punishment range is far too high. The Article 10.2 aim to be achieved is vindication of the complainant’s reputation. In all defamation proceedings (whether civil or criminal) this is substantially achieved by the decision of the court – ie. the declaration that the damaging statement was untrue. Any compensatory or punitive measure imposed on the speaker has to be justified in the light of this fact. This means that only strictly limited criminal measures, such as fines, are likely to be justifiable. As indicated above, the fact that even the possibility of severe punishment exists in any particular legal system can have a “chilling effect” on freedom of expression.         

 

25.               The provision in Art 135.2 for correctional labour or arrest in cases of libel by the media is particularly worrying. As indicated above, the position of the media should be protected, rather than undermined, by the state in a democracy. If the underlying intention of this provision is that the punishment should be influenced by the scale of the publication, this can be stated in simple terms. The imposition of extra punishment in the cases of all media libels, however large or small, cannot be justified.  Each case must be properly assessed on its own facts.

 

26.               The provision in Art 135.2 for enhanced punishment, including imprisonment for up to 3 years, in all cases involving false accusation of serious crime is also worrying. Again each case must be considered on its own facts. A libel of this type is not necessarily more serious than other defamatory allegations. Moreover, allegations of such crimes may well be made in the context of political/public interest speech. Politicians, for example, may be accused of complicity in violence or corruption. Any severe punishment by the state in this context is likely to involve violation of the free speech guarantee.

 

Art 136 - Insult

 

27.               Again I have a number of concerns about this offence.

 

28.               As we discussed at length in Yerevan , its basis is unclear. According to my translation of Art 136.1 the offence is committed where there is “improper” humiliation of another’s honour and dignity. This formulation gives the court a wide discretion to decide what is “proper” and what is “improper”. This, in turn, appears to offend against the principle of legal certainty contained within the requirement that measures against free speech are prescribed by law. If the offence is to be retained in any form this uncertainty must be removed.

 

29.               Beyond this, my concerns are the same as those expressed above in relation to the (more serious) defamation offence, namely:

 

-         It is unclear whether the offence is committed through statements of fact, opinion or both. Again this has to be made very clear in the law itself, so that the appropriate defences discussed above can be built in;

 

 

-         The defence described at paragraph 20 above must be specified, assuming insulting statements of opinion can lead to conviction;

 

-         A general public interest defence should be made available to the media (paragraphs 21 and 22 above);

 

-         Instances of absolute privilege for certain categories of reporting should be listed (paragraph 23 above);

                                                                                                                                   

-         Punishments should be limited (eg to small fines) and should not be enhanced in cases of insult by the media per se (as required by Art 136.2).         

 

30.               I would add that convictions/punishments for this type of insult offence have been challenged before the E Ct Hr in a number of cases, most notably in Oberschlick v Austria (No 2) . They indicate that the application of such provisions is liable to lead to Art 10 violations, especially when used against journalists or others expressing themselves in time of political or other public controversy.

 

The insult offence under Art 318

 

31.               Art 318 makes it an offence to publicly insult a “representative of authorities” – ie a public official. Again the necessary defences are not specified and the range of punishments is severe. They include up to two years imprisonment in cases of such insults by the media.

 

32.               The use of this offence by the state in the context of political/public interest debate is almost certain to give rise to Art 10 violations – see paragraph 13 above.

 

33.               In general my criticisms of this provision are the same as for Art. 136.

 

Conclusion

 

34.               For the reasons given above there is a very real risk that the application of these provisions will cause violations of Art 10 rights – especially those of journalists. The authorities in Armenia must be prepared to remove them from the criminal code altogether and protect against defamation and insult in other, non-criminal, ways. If they are to remain, they must be amended as advised above. In particular correctional labour and imprisonment must be removed from the punishment regimes and fines must be limited.

Appendix

 

 

CRIMINAL CODE OF MONTENEGRO

 

CHAPTER SEVENTEEN

CRIMINAL ACTS AGAINST HONOR AND REPUTATION

 

Insult

 

Article 195

(1) Anyone who insults other person shall be punished by a fine in the amount of € 1.200 to 4.000.

(2) If an act referred to in Paragraph 1 of this Article is performed through media or other similar means or at some public gathering, the perpetrator shall be punished by a fine in the amount of € 3.000 to 10.000.

(3) If the insulted person returned the insult, the court may punish or free both sides or one side from punishment.

(4) Any person who commits an act referred to in Paragraphs 1 to 3 of this Article shall not be liable to any punishment whatsoever if the statement is given within serious critique in a scientific, literary or artistic work, performance of a public service, or journalistic writing, political activity, or to defend a right or protect justifiable interests, if the manner in which the statement is expressed or other circumstances indicate it is not done on the grounds of discrediting a person.

 

Defamation

 

Article 196

(1) Anyone who speaks or transmits untrue information about someone that may harm his/her honour and reputation shall be punished by a fine in the amount of € 3.000 to 10.000.

(2) If an act referred to in Paragraph 1 of this Article  is performed  through media  or other similar means or at a public gathering, s/he shall be punished by a fine  in the amount of € 5.000 to 14.000.

(3) If an untrue information said or transmitted has caused or could have caused significant harm to the injured party, the perpetrator shall be punished by a fine in the minimum amount of € 8.000.

(4) If the defendant proves the truthfulness of his/her claims or proves to have had founded reasons to believe in what s/he spoke or transmitted, s/he shall not be charged with defamation, but s/he can be charged with insult (Article 195), if the  conditions for the existence of such an act have been met.

 

Spreading information about private and family life

 

Article 197

(1) Anyone who spreads or transmits information about personal or family life of a person and thereby potentially harms his/her honour or reputation shall be punished by a fine in the amount of € 3.000 to 10.000.

(2) If an act referred to in Paragraph 1 of this Article is performed through media or other similar means or at a public gathering, the perpetrator shall be punished by a fine in the amount of € 5.000 to 14.000.

(3) If what is being said or transmitted has entailed or could have entailed serious consequences for the injured party, the perpetrator shall be punished by a fine in the minimum amount of € 8.000.

(4) If the accused person has spread or transmitted information about personal or family life within performing a duty, defending a right or protecting justified interest, s/he shall not be punished provided s/he proves that the information is true or that s/he had founded reasons to believe that the information s/he disclosed or transmitted is true.

(5) The truthfulness or untruthfulness of what is being said or transmitted pertaining to personal or family life is not liable to any evidence establishing procedure, except in cases referred to in Paragraph 4 of this Article.

 

Ruining the reputation of SMN and of a member state

 

Article 198

Anyone who publicly exposes SMN or one of its member states, its flag, coat of arms or anthem to persiflage, shall be punished to a fine in the amount of € 3.000 to 10.000. 

 

Ruining the reputation of nations, national and ethnic groups of  SMN

 

Article 199

Anyone who publicly exposes a nation, national or ethnic group living in SMN to persiflage, shall be punished by a fine in the amount of € 3.000 to 10.000.

 

Ruining the reputation of a foreign state or an international organization

 

Article 200

(1) Anyone who exposes to persiflage a foreign state, its flag, coat of arms or its anthem, shall be punished by a fine in the amount of € 3.000 to 10.000.

(2) By punishment referred to in Paragraph 1 of this Article shall be punished the one who publicly exposes to persiflage the United Nations Organization, International Red Cross or some other international organization of which SMN or Montenegro is a member.

 

Impunity for criminal acts referred to in Articles 198 to 200

 

Article 201

Perpetrator of an act referred to in Articles 198 to 200 of the present Code shall not be punished if a statement has been given within serious critique in a scientific, literary or artistic work, or within performance of an official duty, journalistic writing, political activity, defence of a right or protection of justifiable interests, provided that  the way of expression or other circumstances prove that s/he has not done it with intention of belittling or if s/he proves the truthfulness of his/her claims or that he had founded reason to believe in verity of what s/he was saying or transmitting.

 

Prosecution for offences against honour and reputation

 

Article 202

(1) Prosecution for acts referred to in Articles 195 to 197 of the present Code is undertaken by a  private claim. 

(2) If the offences referred to in Articles 195 to 197 of the present Code are done to a person that passed away, prosecution is undertaken by a private action of his/her spouse or person who lived with the diseased in a permanent extramarital association, a direct relative, adoptive parent, adopted child, brother or sister of the deceased person.

(3) Prosecution for an offence referred to in Article 200 of the present Code is undertaken after obtaining a permit of the Supreme State Prosecutor of the Republic of Montenegro .

 

Promulgation of the sentence for criminal acts against honour and reputation

 

Article 203

When pronouncing a sentence for acts referred to in Articles 195 to 197 of the present Code done through media or other similar means or at a public gathering the court may, on the request of the prosecutor, decide to publish the court sentence in its entirety or as an excerpt through the same medium and at the expense of the convicted person.