The Appeal Court Released a Problematic Decision

On June 26, the Civil Appeal Court rejected the appeal of Naira Khachikyan, the director of the “Ijevan Studia” Ltd and the “Ijevan” TV. Naira Khachikyan had particularly appealed the second part of March 22 decision of the court of general jurisdiction of the Tavush marz, according to which the “Ijevani Studia” Ltd and its director were obligated to pay the part of the legal expenses made by the plaintiff, the “Ijevani CHSHSH” road-constructing CJSC, though, according to the first part of the same decision, the claim was rejected.

We have already written about the controversial nature of the above mentioned court decision in the article entitled “A Court Decision or a Puzzle?” (See in the “Articles” section of the website www.khosq.am). By the way, the Information Disputes Council (IDC) had also expressed its opinion on this court case pointing out that if “this decision becomes wide practice, even in the case of winning a case, the journalists having found themselves in the situation of the respondent might be obliged to pay high monetary compensations, which will make any legal remedy null and void and seriously endanger free speech.”

There was a hope that the Appeal Court will find a reasonable solution for this 2-year lasting dispute, but alas…

It’s worth mentioning that upon the request of Naira Khachikyan, the lawyer of the Committee to Protect Freedom of Expression (CPFE), Olga Safaryan was representing the interests of the respondent.

A reference was made to the legal provisions of Point 1 of Article 73 of the RA Civil Procedure Code as a ground for the appeal. According to these provisions the legal costs are distributed amongst the parties participating in the case in proportion with the satisfied (and not rejected) claims. Meanwhile, Article 42 of the RA Constitution was mentioned, according to which “No one shall bear obligations not stipulated by the law.” There is no legal provision in the Armenian legislation, according to which the respondent can be obligated to compensate the legal costs made by the plaintiff in case of rejection of the claim, even partially.

The Appeal Court rejected the appeal referring to the Cassation Court’s April 27, 2012 decision concerning the case “Vano Yeghiazaryan vs. Boris Ashrafyan.” The court, thus, considered the grounds for the appeal in the context of the interpretations of the Article 1087.1 of the RA Civil Code. It’s worth mentioning that the Appeal Court also mentioned in its decision that this court instance examine the appeal only within the scope of the grounds and reasoning for the complaint. However, the appeal was rejected for other reasons.

According to Olga Safaryan, the reference of the Appeal Court was not appropriate, as the appeal was not to dispute the application of the Article 1087.1. Besides, the circumstances of the case “Vano Yeghiazaryan vs. Boris Ashrafyan” were quite different, and the Cassation Court did not mention that the respondent must pay the legal costs in case if the claim was rejected. According to the lawyer, the Appeal Court did not refer to the articles highlighted in the appeal at all.

It seems that the Appeal Court did not examine the appeal, it only repeated the approach of the court of general jurisdiction, thus preparing a basis for the higher court for rejection.

Despite this, the director of the “Ijevan” TV and the lawyer of the CPFE are going to appeal the decision of the Appeal Court.

By the way, as Olga Safaryan informed, the decision was not announced properly, which is a violation of the RA Civil Procedure Code. The decision was given to the party in the corridor of the court. This has become a habit for our courts. Just the same took place during the litigation based on the claim filed by the CPFE against the National Commission on Television and Radio (NCTR). (See the “Articles” and “CPFE Court Cases” sections of the website www.khosq.am).

Anna ALOYAN

CPFE expert

 

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