"Center for Strategic Litigations" Human Rights NGO

Facts of the case: Following the announcement of the preliminary results of the presidential elections in Armenia in 2008 and an outbreak of oppositional demonstrations, a decree declaring a state of emergency in Yerevan was adopted. The Government notified the Council of Europe of the derogation from, inter alia, rights protected by Article 10 of the Convention and imposed restrictions on publications by mass media in the country. The applicant company, an oppositional newspaper, was prevented from being printed for 18 days. After the state of emergency was lifted, the applicant company initiated several proceedings before a domestic court 1) claiming that there had been no domestic legal provision authorising the President to declare a state of emergency, 2) complaining of the national security officers preventing it from printing issues of its newspaper in violation of the rights guaranteed by domestic legal provisions and by Article 10 of the Convention. Domestic court refused to entertain the applicant company’s application holding that the lawfulness of the presidential decree could be tested only in the Constitutional Court, since no statute had been adopted regulating the legal framework of a state of emergency. The Constitutional Court ruled that the applicant company lacked standing to bring a constitutional complaint to contest the presidential decree in question. Further, appeals by the applicant company were unsuccessful.

Complaint: The applicant company complained that the ban on its publications as a result of the restrictions imposed by the presidential decree constituted an unjustified interference with its right guaranteed by Article 10 of the Convention. It also invoked violation of Article 6 of the Convention.

Findings of the Court: Examining the case under Article 15 of the Convention, the Court found that the derogation failed to satisfy the requirements of Article 15 § 1 of the Convention as the responded State did not provide convincing evidence that the opposition demonstrations could be characterised as a public emergency “threatening the life of the nation”. The Court stated that there has been an interference with the applicant company’s rights but refrained from the assessment of the lawfulness of the declaration of a state of emergency.

It further noted that that the “duties and responsibilities” which accompany the exercise of the right to freedom of expression by media professionals assume a special significance in situations of conflict and tension. The existence of a “public emergency threatening the life of the nation”, in the Court’s opinion, must not serve as a pretext for limiting freedom of political debate. It noted that the prohibition on publication was imposed without providing any reasons. Since the newspaper did not intend to print materials containing hate speech or incitement to violence or unrest, such restrictions, which had the effect of stifling political debate and silencing dissenting opinions, went against the very purpose of Article 10, and were not necessary in a democratic society.

When examining the applicant company’s complaints under Article 6 of the Convention, the Court established the existence of a systematic judicial practice in Armenia at the material time in accordance with which the courts would refuse to entertain claims against the presidential decrees. It found that the applicant company, being a subject to such practice and lacking standing to bring a constitutional complaint, was prevented from contesting the presidential decree and the interference with its Article 10 rights before any domestic judicial authority. This, according to the Court, impaired the very essence of the applicant company’s right of access to court. It lastly considered that it is not necessary to separately examine whether there has been a violation of Article 6 of the Convention as regards the composition of the court, which had ruled on the applicant company’s appeal.

Ruling of the Court: Violation of Articles 6 § 1 and 10 of the Convention.

Non-pecuniary damage: 9 000 EUR.