Communicated on 21 February 2018
FIRST SECTION
Application no. 59180/15
Lili MINASYAN and Others
against Armenia
lodged on 24 November 2015
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are activists involved in various spheres of activity, such as women’s and LGBT rights, human rights, left-wing movements, journalism for LGBT websites, blogging and social activism. Some of them are members of various NGOs, such as Society Without Violence and PINK Armenia, and other groups advocating LGBT rights and gender equality and campaigning against gender-based violence, gender stereotypes and gender or sexual orientation-based discrimination. Some of them have allegedly been harassed or persecuted or targeted by conservative groups because of their activism.
On 16 May 2014 a press conference took place on Facebook, where the Armenian jury members of the 2014 Eurovision song contest, Ms I.A. and Ms A.A., allegedly said during an interview that they had awarded the lowest points to Conchita Wurst because of their internal revulsion, adding that “just like mentally-ill persons cause aversion, so do such phenomena”. Many of the participants in the press conference, including the applicants, challenged the jury members, pointing out that their comments were discriminatory, hateful, intolerant, unconstitutional, inhumane and offensive to sexual minorities and persons with mental disabilities.
On 17 May 2014 an article was published on the website of Iravunk (Law) newspaper, apparently written by its editor-in-chief, Mr H.G., entitled “They Serve the Interests of International Gay Lobby: the Black List of Enemies of the Nation and the State”, with the following content:
“Lobbyists of gay interests are trying to establish their game rules in our country in an aggressive manner. In connection with the disgusting phenomenon of so-called Eurovision, they started harassing and breaking people who voiced their personal natural disgust towards the human waste called Conchita. Their intention is clear: to intimidate all those who would dare to oppose the efforts to have perversion become a norm in Armenia. The aims of the gay lobby are quite obvious: to establish such game rules that would drastically limit the population’s capacity to reproduce, while combat-readiness of the generation eligible for military service would be reduced to zero. ...There is only one way to stop the advance of those lobbyists: ZERO TOLERANCE. Regardless of the fact of whether they were paid, forced or brainwashed to become gay campaign-supporting zombies. It is all irrelevant; every lobbyist is an internal enemy of the Nation and the State, that’s it. For that purpose, to the extent that I was able to devote time to this, I managed to compile a blacklist of those who harassed [I.A. and A.A.] on the web page of the Facebook press conference. Now, for whom would such blacklists would be useful?
1. ORDINARY PEOPLE: for them to stop any contact with the lobbyists both on the internet and in real life; not to greet them; not to help them with any issues and not to do any business with them.
2. PUBLIC OFFICIALS: for them not to hire those lobbyists for public service jobs, and if they already work there, to fire them under any convenient pretext.
3. EMPLOYERS: for them not to hire those lobbyists.
4. OWNERS OF MEDIA COMPANIES: for them not to give those lobbyists an opportunity to influence public opinion.
5. HEADS OF EDUCATIONAL INSTITUTIONS: for those lobbyists not to have the possibility to participate in the education of younger generations.
These are of course not the only ways to limit the activities of gay lobbyists. Below we present a list of Facebook profiles of those persons who were active participants in the harassment campaign of [I.A. and A.A.].”
This article was followed by a list of hyperlinks to a number of Facebook profiles, including those of the applicants.
On 31 May 2014 all the applicants, except applicants Minasyan and Arustamyan, requested a retraction from the president of the editorial board of the newspaper, Mr H.B., who was also a member of Parliament and of the ruling Republican Party, and its editor-in-chief, Mr H.G., alleging that the article contained information which did not correspond to reality and was defamatory and insulting to their honour, dignity and business reputation.
On 3 June 2014 another article was published on the website of the newspaper, entitled “And They Still Dare to Request a Retraction?”
On 16 June 2014 the applicants instituted civil proceedings against the newspaper and its editor-in-chief, claiming that the statements made in the article contained insults and pursued the sole purpose of tarnishing their honour and dignity. They furthermore amounted to incitement to hate and discrimination. The applicants argued that the permissible limits of free speech under Article 10 of the Convention had been overstepped.
Between 11 and 30 July 2014 the newspaper published a series of five articles, including an article about the applicants entitled “Such Phenomena Have Sued Iravunk” containing a photo of applicant Saghumyan, an article about applicant Kazhoyan entitled “When the Daughter of a Public Official Engages in Gay Lobbying” and published in a section called “Conchita’s Witnesses”, an article about applicant Sedrakyan entitled “How the Son of a Bandit Became a “Conchita’s Witness””, an article about applicant Hovsepyan and the PINK Armenia NGO headed by him, entitled “Camps: Young Gay Lobbyists”, and an article entitled “The Gay Lobbyists Are Losing their Tempers”.
On 5 September 2014 H.G. initiated a Facebook event calling on everyone who was not indifferent towards traditional values and who valued the institution of the family and the nation’s morality to come to the court hearing to take place on 20 October 2014 and to support the newspaper which had thrown down the gauntlet to gay lobbyists, thereby defending the right to live in an environment free from perverse influences. It appears that on the day of the hearing about a dozen people gathered in front of the court building holding posters, including “Stop Anti-Armenian Propaganda”, “Propaganda of Perversion Must be Banned by Law” and “Gender Equals Perversion”.
On 25 October 2014 H.B. and H.G. were awarded medals and other honours, including for their great contribution to the success of the newspaper, by the President of Armenia and the President of the National Assembly on the occasion of the newspaper’s twenty-fifth anniversary.
On 30 October 2014 the Kentron and Nork-Marash District Court of Yerevan dismissed the applicants’ claim. Relying on Article 10 of the Convention, the District Court held that the article did not aim to insult the applicants but simply contained an element of journalistic exaggeration and provocation. The article was balanced overall, and tried to give an equal response to those who, according to the author, tried to establish – in an aggressive manner – new game rules in the country which might have destructive consequences. Thus, it was within the permissible boundaries of freedom of journalistic speech and pursued a pressing social need. The author had been guided by the principle of plurality of opinions and had not pursued the aim of tarnishing the applicants’ honour or dignity, even if some of the formulations used might have shocked or disturbed the applicants. By criticising jury members I.A. and A.A., the applicants had joined a public discussion and ended up being a subject of criticism themselves. Having joined a public discussion, they should have shown more tolerance towards the critical statements which were part of an open debate and concerned the instilling of homosexual and similar ideas in society and not deviating from a Christian path, rather than constituting personal insults. Lastly, value judgments were not susceptible to proof.
On 28 November 2014 the applicants lodged an appeal.
On 2 March 2015 another article was published in the newspaper, entitled “Adventures of the Armenian Gay Lobbyists in Istanbul”, covering the visit of applicant Hovsepyan to Istanbul and stating, inter alia, that those establishing contact with Turkish gays still dared to demand rehabilitation of their honour from an Armenian newspaper, whereas it would have been more logical for their activities to be examined by Armenia’s national security authorities. The article further stated that the LGBT logic was interesting. It was rightly said that “obscenity was the second happiness”: they had travelled to kiss Turkish gays and, at the same time, sued an Armenian journalist who had dared to tell the truth.
On 5 March 2015 the Civil Court of Appeal dismissed the applicants’ appeal and upheld the judgment of the District Court.
On 25 March 2015 H.B. gave a speech in the Armenian Parliament, in which he alleged that George Soros, through his Open Society Foundation, was sponsoring such NGOs as PINK Armenia for them to initiate judicial persecution against Iravunk newspaper. It appeared that the activities of the Foundation were aimed not only against the system of traditional values but also against such a core democratic principle as freedom of speech and of the media.
On 7 April 2015 the applicants lodged an appeal on points of law, which was declared inadmissible for lack of merit by a decision of the Court of Cassation of 29 April 2015. A copy of that decision was served on the applicants on 29 May 2015.
The applicants allege that, following the decision of the Court of Cassation, the newspaper continued publishing similar articles about them.
B. Relevant domestic law
Article 14.1 of the Constitution provides that every one is equal before the law. Discrimination on the ground of sex, race, skin colour, national or social origin, genetic characteristics, language, religion, ideology, political or other opinion, association with a national minority, property, birth or disability status, age or personal or other circumstances of a social nature is prohibited.
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).
COMPLAINTS
The applicants complain that the newspaper publications and the failure of the State to ensure respect for their private life violated the guarantees of Article 8 of the Convention.
The applicants complain under Article 14 in conjunction with Article 8 of the Convention that the newspaper publications contained discriminatory language and incitement to discrimination against them due to their association with the LGBT community and/or their perceived sexual orientation. The courts ignored their allegations of discrimination, which was also conditioned by the fact that the State had failed to put in place legislative and procedural mechanisms that would have allowed them to claim discrimination and/or hate speech based on sexual orientation and gender identity.
The applicants complain under Article 17 of the Convention that the State failed to hold the respondents liable for dissemination of hate speech and afforded hate speech protection under Article 10 of the Convention.
QUESTIONS
1. Has there been a violation of the applicants’ right to respect for their private family life, contrary to Article 8 of the Convention?
2. Have the applicants suffered discrimination, contrary to Article 14 of the Convention?
3. Were the acts or omissions of the State in the present case aimed at the destruction or the limitation of any of the rights and freedoms set forth in the Convention to a greater extent than is provided for in the Convention, within the meaning of Article 17?
APPENDIX
No.
Firstname LASTNAME
Birth year
Nationality
Place of residence
Lili MINASYAN
1990
Armenian
Yerevan
Gayane ARUSTAMYAN
1968
Armenian
Yerevan
Vardan HAMBARDZUMYAN
1989
Armenian
Yerevan
Mamikon HOVSEPYAN
1982
Armenian
Gyumri
Vahancheraz ISHKHANYAN
1964
Armenian
Yerevan
Pertchuhi KAZHOYAN
1989
Armenian
Yerevan
Nvard MARGARYAN
1988
Armenian
Abovyan
Arevik MARTIROSYAN
1987
Armenian
Yerevan
Elvira MELIKSETYAN
1991
Armenian
Vanadzor
Anna NIKOGHOSYAN
1990
Armenian
Yerevan
Lusine SAGHUMYAN
1987
Armenian
Vanadzor
Vahan SEDRAKYAN
1994
Armenian
Yerevan
Anna SHAHNAZARYAN
1984
Armenian
Sevan
Davit TADEVOSYAN
1992
Armenian
Yerevan
Full & Egal Universal Law Academy