Published on 11 December 2023
FOURTH SECTION
Application no. 5837/17
NEW GENERATION HUMANITARIAN NGO
against Armenia
lodged on 29 December 2016
communicated on 23 November 2023
SUBJECT MATTER OF THE CASE
The applicant is a non-governmental organisation which, inter alia, strives for the protection of sexual minorities. According to the applicant’s charter, its strategic goals include, among other things, the protection of human rights, promotion of gender equality and diversity, and fight against stigma and discrimination.
On 11 July 2014 the applicant NGO lodged a defamation claim against a local media company and its journalist because of an article written by the journalist and published in the newspaper run by the company. The applicant alleged that the article in question had contained hate speech and discriminatory and insulting language tarnishing its reputation and targeting it solely because of its association with sexual minorities. The contested parts of the said article, which was published under the rubric “Anti-national” and was titled “When the grant-sucker defenders of homosexuals receive state aid”, read as follows:
“[I]t turns out that the Ministry of Sport and Youth extends the best NGO award to also those who call for “respect for human rights” and “an end to homophobia”, thus defend homosexuals. On 17 May, the humanitarian NGO “New Generation”, which the Ministry of Sport and Youth had awarded as organisation of the year at the end of last year in the region of Shirak, made such a declaration. For what merit had this NGO – the defender of immoral human waste which last year had disgraced the Independence Day, that is 21 September, in Gyumri with its pacifist-tolerance-promoting campaign – been recognised as the best of the year, we tried to find out from the head of the Department of Youth Policy of the Ministry, Mr A.P. ...”
The impugned article also displayed a photo of the members of the applicant NGO brandishing a placard which contained the expression “No Hate Speech”. Under the photo, the caption read:
“21 September 2013. “New Generation” NGO is in effect disgracing the Independence Day by holding a pacifist campaign. Mostly the demonstrators could be seen holding placards reading “No hate speech”. This is the number one motto of the lobbyists of homosexuals’ interests.”
The applicant asked the court that (1) the journalist apologise publicly for the insults; (2) that she pay compensation for non-pecuniary damage in the amount of one million Armenian drams; and (3) that the media company publish in the same newspaper facts established by the court in favour of the applicant NGO, in particular that the respondents tarnished its reputation; the facts showing that they spread hate speech and used discriminatory language, as well as the operative part of the judgment.
The first-instance court dismissed the applicant NGO’s claim since, even though the impugned statements incited to hatred and were disparaging, they did not target the applicant NGO as such but sexual minorities. As regards statements “grant-sucker defender of homosexuals”; “defender of immoral human waste”; and “[which] had disgraced Independence Day with pacifist-tolerance-promoting campaign”, the court considered those value judgments with factual basis and thus protected under Article 10 of the Convention. This judgment was upheld on appeal. Both the first instance and the appeal court considered that the applicant’s third claim – requesting publication in the newspaper – was derivative of its main claim for compensation and apology and thus did not address it.
The applicant NGO lodged an appeal on points of law, which the Court of Cassation returned on 25 May 2016 without examining the merits because the applicant had failed to attach to its appeal the electronic copy of the appeal and had failed to pay court fees. The Court of Cassation gave the applicant three days to rectify the errors identified in its decision and resubmit the appeal.
The applicant NGO, having attached the electronic copy of its appeal and having paid the court fees, corresponding to one pecuniary and one non‑pecuniary claim, resubmitted its appeal.
On 15 June 2016 the Court of Cassation left the applicant’s appeal on points of law without examination. In particular, it noted that the applicant had only partially rectified the errors already identified in its previous decision – it had paid court fees only for one pecuniary and one non-pecuniary claim, whereas it had raised two non-pecuniary claims and had thus underpaid court fees. The court did not set a new time-limit to resubmit the appeal. By that time, the three-day time-limit for such resubmission had expired․
The applicant NGO complains under Article 6 § 1 about lack of access to the Court of Cassation. In particular, the applicant argues that the domestic law lacked clarity as regards the payment of court fees in the event of multiple claims. It further submits that, in any event, the restriction imposed on its right of access to the Court of Cassation was disproportionate since it was of purely technical nature. Relying on Article 14 in conjunction with Articles 10 and 11 of the Convention, the applicant also complains that it fell victim to hate speech and discrimination by association because it defends rights of sexual minorities and that the domestic authorities failed to comply with their positive duties as they rejected its civil claim. The applicant further claims that it had no effective domestic remedy against discrimination either under civil or criminal law. In the circumstances of the case, the complaint under Articles 10 and 11 is communicated under Article 8 of the Convention, taken alone or in conjunction with Articles 13 and 14.
QUESTIONS TO THE PARTIES
1. Was the refusal of the Court of Cassation to examine the applicant NGO’s appeal on points of law in breach of its right of access to a court guaranteed under Article 6 § 1 of the Convention? In particular, what was the legal basis for the decision of the Court of Cassation regarding the calculation of court fees? The parties are invited to provide information on and examples of the relevant domestic practice at that time concerning the amount of court fees to be paid in cases of multiple non-pecuniary claims within the same set of proceedings, in particular in presence of a main claim and other deriving claims, as well as to clarify the amount of court fees paid by the applicant for its appeal before the court of appeal.
2. In any event, did the restriction on the applicant NGO’s right of access to the Court of Cassation comply with the requirement of proportionality under Article 6 § 1 of the Convention?
3. Has the applicant exhausted the domestic remedies in respect of its complaints under Article 8 § 1 of the Convention, taken alone or in conjunction with Article 14 of the Convention?
4. Is Article 8 of the Convention applicable in the circumstances of the present case? In particular, does the applicant company’s reputation fall within the notion of “private life” under that Article?
5. If so, has there been a violation of Article 8 of the Convention, taken alone or in conjunction with Article 14 of the Convention, on account of the authorities’ alleged failure to ensure adequate protection of the applicant NGO’s right to reputation free from hate speech and discrimination?
6. Did the applicant NGO have at its disposal an effective domestic remedy for its complaints under Article 8, taken in conjunction with Article 14, as required by Article 13 of the Convention?
Full & Egal Universal Law Academy