Communicated on 22 November 2016
FIRST SECTION
Application no. 32251/12
SKIZB MEDIA KENTRON LTD (I)
against Armenia
lodged on 18 May 2012
STATEMENT OF FACTS
The applicant company, Skizb Media Kentron, is a limited liability company with its registered office in Yerevan. It is represented before the Court by Mr N. Baghdasaryan, a lawyer practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant company publishes Zhamanak, a daily newspaper.
On 25 September 2010 an article was published in issue no. 157 entitled “The Blood from the Kocharyans, the High from Tsarukyan and the Anti-Seizure from ‘Lfik’” with the following content:
“According to the information provided by the Ministry of Health of Armenia, there are currently thirty companies involved in the importation of medicine into the country.
At first glance it appears that monopolisation has not succeeded in the pharmaceutical market; however, here also there are monopolies, simply not obvious ones. It is not a secret that the dominant position in the Armenian pharmaceutical market is held by an MP, [S.A., also known as ‘Lfik’]. Even the position held in the pharmaceutical market by Bela Kocharyan, the wife of the second President of Armenia Robert Kocharyan, yields to his. The family of [S.A.] officially owns a company importing medicine into Armenia called Natali Pharm. However, according to our sources, 50% of the mentioned thirty companies importing medicine belong to [S.A.]. Simply, in order to avoid unnecessary fuss, he has registered the other companies under other names. The fact that there is also a monopoly in the pharmaceutical market is proven simply by one fact: there are only two companies importing anti-seizure and anti-epileptic medicines, namely Natali Pharm belonging to [S.A.] and its competitor Alfa Pharm, accounting [together] for one third of the market. Furthermore, we tried to clarify from the Ministry of Health the names of [individuals] importing medicine but, as it turned out, they were able to provide only a list of companies involved in this activity.
Thus, according to the 2009 data, [there are thirty companies importing medicine into Armenia, including Alfa Pharm, Natali Pharm and twenty-eight others]. It is notable that the chain of pharmacies called 911 belonging to the Kocharyan family is missing from that list. We also tried to obtain an official comment from the Head of the Drugs Unit of the Ministry of Health, [M.H.], who mentioned in conversation with us that they registered only the names of companies and not of importers, therefore no list containing the names of actual importers could be provided. Nevertheless, we were able to clarify that in 2009 the following companies were among the top ten importers of medicine ... based on the volume of imported goods: Natali Pharm, Alfa Pharm [and eight other companies].
The spokesperson of the Armenian State Commission for the Protection of Economic Competition, [N.D.], also could not specify the names of individuals importing medicine into Armenia because of lack of data. However, the Commission provided us with the names of companies with a dominant position in Armenia’s pharmaceutical market, as well as information as to which company imports which medicines. According to the data provided by the Armenian State Commission for the Protection of Economic Competition, as of 1 August 2010 Natali Pharm Ltd and Alfa Pharm CJSC are involved in the importation of anti-seizure and anti-epileptic medicines, holding [together] 54.43% of the market. Alfa Pharm also controls one third of the market for anti-migraine medicines – 80.22%. Arpimed Ltd and Alfa Pharm CJSC control 51.6% of the psychotropic medicine market. It must be noted that Arpimed belongs to the chairman of [the Prosperous Armenia Party, G.T.], while Alfa Pharm has six owners who are considered in the pharmaceutical market as serious competitors to [S.A.] and who are waging a serious price war with one another. Komstar Ltd and Likvor CJSC dominate the blood specimens and plasma substitutes market, which constitutes one third of Armenia’s pharmaceutical market. The former controls 55% of the market, while the latter has 40%. According to our sources, these companies are also controlled behind the scenes by the Kocharyan family. In Armenia’s pharmaceutical market they also pull strings for New International Business Pharm Ltd which imports blood-affecting [(արյան վրա ազդող)] medicines and controls one third of the market – 35.5%. A dominant position in Armenia’s pharmaceutical market is also held by Pharmatex Ltd, which imports antihistamines and anti-anaphylaxis medicines, with at least one third of the market – 36.7%. This company also imports medicines for the respiratory system, controlling one third of that market – 39.2% – and solutions regulating the water-salt and pH balance, holding 54.9% of the market. The owner of the company is an Englishman who is similarly under the patronage of the Kocharyan family. The owners of the other companies operate in the shadows. One of the main reasons for that is the fact that they are controlled behind the scenes by one person but present themselves under different names.”
On 29 September 2010 another article was published in issue no. 159 entitled “Diamond Bob” with the following content:
“It seems [former President] Robert Kocharyan is not satisfied with the enormous fortune which he embezzled from the State as now he is hungry to acquire new sources of income. Thus, according to our official sources, the Kocharyan family has recently made another business acquisition. To our knowledge, Robert Kocharyan’s elder son, Sedrak Kocharyan, has acquired a diamond mine in India, registering that transaction as an investment. The transaction was performed through Conversebank. Let us remind you that, according to certain sources, the Kocharyans also have diamond mines in Namibia.”
On 7 October 2010 another article was published in issue no. 165 entitled “Volvo + Spayka = Sedrak Kocharyan” containing the following passage:
“A few days ago interesting news appeared on the Internet: the giant Swedish lorry manufacturer Volvo Trucks has entrusted its official representation in Armenia to a company called Spayka. According to that source, Volvo has signed a contract with Spayka for 100 lorries in Central Asia and the Caucasus. Forty-five of these lorries have already reached their destination, while the remaining fifty-five will arrive in Armenia in the first quarter of 2011. At first glance this is seemingly ordinary news which, however, points to the existence of another monopoly in Armenia. The thing is that, even if this company is officially owned by an individual called Davit Ghazaryan, in reality it is the Kocharyan family which is behind the company, in particular Robert Kocharyan’s son, Sedrak Kocharyan ...”
On 13 October 2010 Bela and Sedrak Kocharyan addressed a letter to the applicant company, demanding that it publish a retraction of the factual inaccuracies appearing in the above articles. The applicant company did not respond to this letter.
On 24 November 2010 Bela and Sedrak Kocharyans instituted civil proceedings against the applicant company, claiming that the above articles contained statements tarnishing their honour, dignity and good reputation and seeking their retraction and payment of damages for insult and defamation.
On 20 December 2010 the applicant company filed its observations in reply, arguing that the articles in question did not contain any insulting or defamatory statements.
On 6 June 2011 the Kentron and Nork-Marash District Court of Yerevan allowed the claim, ordering the applicant company to publish a retraction and to pay damages in the amount of 3,000,000 Armenian drams (AMD). In doing so, the District Court reached the following findings:
(a) The phrase “The Blood from the Kocharyans” used in the title constituted an insult and tarnished the honour and dignity of the plaintiffs, because it induced negative impressions in the reader since the word “blood” could be interpreted negatively in multiple ways in respect of the plaintiffs (for example, to suggest some sort of criminal activity). It would have not constituted an insult only if it had been possible to infer from the title a non-negative connotation of the word “blood”. However, the phrase in question could not be understood by its usual and direct meaning because this phrase was normally used to induce negative emotions and impressions. Thus, it could not in itself induce positive ideas of respect and good reputation regarding the plaintiffs in the readers, while the article did not contain any explanations of the non-negative meaning of the title;
(b) The following statements constituted defamation:
(i) “Even the position held in the pharmaceutical market by Bela Kocharyan, the wife of the second President of Armenia Robert Kocharyan, yields to his”.
(ii) “It is notable that the chain of pharmacies called 911 belonging to the Kocharyan family is missing from that list”.
(iii) “Komstar Ltd and Likvor CJSC dominate the blood specimens and plasma substitutes market which constitutes one third of Armenia’s drugs market. The former controls 55% of the market, while the latter has 40%. According to our sources, these companies are also controlled behind the scenes by the Kocharyan family.”
(iv) “A dominant position in Armenia’s drugs market is also held by Pharmatex Ltd which imports antihistamines and anti-anaphylaxis medicines, with at least one third of the market – 36.7%. This company also imports medicines for the respiratory system, controlling one third of that market – 39.2% – and solutions regulating the water-salt and pH balance, holding 54.9% of the market. The owner of the company is an Englishman who is similarly under the patronage of the Kocharyan family.”
(v) “Thus, according to our official sources, the Kocharyan family has recently made another business acquisition. To our knowledge, Robert Kocharyan’s elder son, Sedrak Kocharyan, has acquired a diamond mine in India, registering that transaction as an investment. The transaction was performed through Conversebank. Let us remind you that, according to certain sources, the Kocharyans also have diamond mines in Namibia.”
(vi) “The thing is that even if this company is officially owned by an individual called Davit Ghazaryan, in reality it is the Kocharyan family which is behind that company, in particular Robert Kocharyan’s son, Sedrak Kocharyan.”
The District Court found that the facts submitted by the plaintiffs disproved their links to the pharmaceutical market, the blood specimen and plasma substitutes market and to Pharmatex Ltd, as well as disproving having made any bank transfers through Conversebank to Namibia or India, while the applicant company failed to prove the veracity of the statements in question or to indicate their source. Furthermore, the published information had not been the subject of a public debate nor had it been in the public interest, while the insulting and defamatory statements which had appeared in those articles were not value judgments but inaccurate statements of fact which had tarnished the plaintiffs’ honour and dignity.
On 6 July 2011 the applicant company lodged an appeal.
On 11 October 2011 the Civil Court of Appeal dismissed the appeal and upheld the judgment of the District Court.
On 14 November 2011 the applicant company lodged an appeal on points of law.
On 7 December 2011 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
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).
COMPLAINT
The applicant company complains under Article 10 of the Convention that its right to freedom of expression was breached.
QUESTION TO THE PARTIES
Has there been a violation of the applicant company’s right to freedom of expression, in particular its right to impart information and ideas, contrary to Article 10 of the Convention?
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