On December 28, 2009, "Lydian Armenia" CJSC (formerly "Geotim" CJSC) despite numerous violations of the legislation received permission from the RA government to operate the Amulsar gold mine.
Residents of Jermuk community and surrounding villages, being very worried about the negative consequences of the Amulsar project, which directly affect the environment, people's health, the development of Jermuk spa, the quality of agricultural products, the Red-Book-listed animal species living and moving through the area, have been regularly resorting to various ways of protest, including civil actions since 2012, the time they learned about the project. Since June 22, 2018 they started blocking roads as a direct resistance and a demand to stop the mining process.
"Lydian Armenia" CJSC organized counter-actions, during which there were posters insulting the citizens opposing the mine, which caused social tension in the affected communities, and from 2018-2019, the company started lodging lawsuits against the most active citizens, demanding not to criticize the company, as well as to pay a large compensation for the alleged damage caused to the company's reputation.
Among other citizens, the environmentalist, public figure, journalist Tehmine Yenokyan, who is the head of the Green Armenia NGO, as well as is a resident of the affected Gndevaz village, actively spoke out against the exploitation of the Amulsar mine.
On September 12, 2018, residents of Jermuk, Gndevaz and Kechut villages organized a solidarity action dedicated to the defense of Amulsar: a motorcade throughout the affected region of Armenia and a people's march, which was concluded with a rally during which various speeches were delivered.
Among others, T․ Yenokyan spoke out. Her statements including the following verbatim: “I especially welcome all the people who are upholding our Amulsar strongholds for 51 days now and are not allowing a criminal like Lydian to continue their crimes. ... and I also want to say that over the years Lydian has provoked many times, spread false information, tried to incite hostilities within the community, between communities, as well as between states, it has tried to incite disputes both in Gndevaz, Jermuk, Kechut, and in Gorayk, Saravan and among a number of other communities…”
On September 5, 2019, "Lydian Armenia" CJSC filed a lawsuit against T. Yenokyan, demanding that she refute the words in her speech of September 12, 2018, claiming them to be a slander and insult. It also demanded to confiscate 1 000,000 AMD as compensation for the damage caused to their business reputation.
By a decision of December 15, 2021 Armenia's Court of first instance partially satisfied the claim of "Lydian Armenia" and ordered T. Yenokyan to refute the above-stated discrediting data. Regarding the assessment of the word “criminal” as an insult, the Court found that the Defendant was an ecologist by profession, and not a lawyer, so she could not understand the true meaning of the word she had uttered. Therefore, the claims for monetary compensation for non-pecuniary damage were denied.
Both Tehmine Yenokyan and “Lydian Armenia” CJSC filed an appeal against this decision to the Court of Appeals. On July 22, 2022 the court made a decision by which T. Yenokyan's complaint was rejected, and the complaint of “Lydian Armenia” CJSC was fully satisfied. The Court ordered T. Yenokyan to publicly refute the slanderous information and confiscate 500,000 AMD from her as slander and 500,000 AMD as material compensation for the insult to "Lydian Armenia" CJSC. The Court of Appeals also ordered T. Yenokyan to pay legal costs, including 24,000 AMD as an advance payment of the state fee and 200,000 AMD as a reasonable attorney's fee for Lydian's legal expenses.
Yenokyan filed a complaint against the decision of the Court of Appeals to the Court of Cassation, which, however, was rejected by the decision of November 9, 2022 on the grounds that the Court of Appeals did not commit violations of such norms of material and procedural law, which violated the essence of justice. Thus, the decision of the Court of Appeals entered full legal force.
Based on the factual circumstances of the case and the judicial acts passed, it can be concluded that no slander and insults were committed by T. Enokyan and the judicial acts are groundless and unconstitutional for the following reasons:
- Despite the arguments presented to the Court that T. Yenokyan's expressions are evaluative in nature, the Court regarded them as factual data. Even in that case, it should have been guided by the Civil Code of the Republic of Armenia, which stipulates that the presentation of factual data is not considered slander defamation and insult if it is determined to be in the eminent public interest in the given situation and by its content (Civil Code of the Republic of Armenia, Article 1087.1, Clause 5).
- T. Yenokyan, as a resident of the affected community, an an environmentalist with many years of experience, a public figure and a journalist, was obliged to inform the members of her community about the processes carried out in relation to their living environment, the damage to nature, possible health problems and the rights of citizens.
- T. Yenokyan made purely evaluative expressions and did not present any factual data, she was guided by eminent public interest and therefore her expressions could not be qualified as defamation. She did not have any intention to slander and insult, and consideration of the actions of "Lydian Armenia" CJSC as a "crime" is purely her assessment of the company's attitude towards nature.
- The Court of Appeals of the Republic of Armenia examined the case in a written procedure, that is, it made a decision without calling court sessions and hearing the parties, completely overruling and changing the first instance verdict. The Court of Appeals could make such a decision when the factual circumstances confirmed by the Court of first instance make it possible to make such an act, and if it is in the interests of the efficiency of justice (Civil Procedure Code of RA, Article 380, Part 1, Clause 5) .
- The Court of Appeals could not change the verdict, because the factual circumstances confirmed by the Court of first instance do not allow such an act to be passed. In particular, the first instance Court did not refer to the method of defamation, the scope of dissemination, as well as T. Yenokyan's material situation, while according to Article 1087.1, Part 11 of the RA Civil Code, the court should have taken these circumstances into account when determining the amount of compensation. As a result, confiscation of an unprecedentedly disproportionate amount was determined, as a result of which T. Yenokyan has appeared in a difficult financial situation. This action comes to prove the fact that the decision of the Court of Cassation is not aimed at restoring the good reputation of the plaintiff, but rather to financially and morally oppress T. Yenokyan, limiting her freedom of speech and environmental activities.
- The RA Court of Cassation was obliged to accept T. Yenokyan's appeal, because there is a violation of T. Yenokyan's constitutional rights to freedom of speech, fair trial and property, especially that the two lower courts made contradictory decisions.
There are a number of decisions of the Constitutional Court of the Republic of Armenia and the European Court of Human Rights, with which it is justified that the decisions of the Courts of the Republic of Armenia violated T. Yenokyan's freedom of speech, access to justice, fair trial and by establishing compensation for material damage, property rights were also violated as defined by the Constitution of the Republic of Armenia. In particular, were violated the rights defined by Articles 6 and 10 of the Convention on Human Rights and Fundamental Freedoms, the rights defined by Article 1 of the amended 11th Protocol, the international legal principles stipulated on November 15, 2011 in the 997 decision of the Constitutional Court of the Republic of Armenia.
Based on the RA Constitutional Court application of human rights defender of RA on November 15, 2011 decision of the Constitutional Court in the case of determining the issue of compliance with Article 1087.1 of the RA Civil Code, Article 14, Article 27, Parts 1, 2 and 3 Article 1087.1 of the RA Civil Code, Article 14, Article 27, Parts 1, 2 and 3 and Article 43 of the RA Constitution.
2 Tհօrgier Tհօrgeirsօn v. Icland (1992), Bսsսiօc v. Mօldօva (2004), Ukrainian Media Grօսp v. Ukarine (2005), Steel and Mօrris v. United Kingdօm (2005)
We, the undersigned civil society organizations and active citizens of RA, believe that the trial against Tehmine Yenokyan endangers democratic values and has the intention not only to silence Tehmine Yenokyan, but also to have a chilling effect on the activities of environmental activists.
We find that the decisions made by the Courts limit Tehmine Yenokyan's rights to freedom of speech, fair trial and create a negative precedent in terms of suppressing and silencing activists and representatives of civil society in cases of public importance.
We call on the Human Rights Defender of RA to assess the persecutions against Tehmine Yenokyan and the attempts to judicially suppress activists and freedom of speech in RA, and to jointly protect the rights and freedoms of Tehmine Yenokyan and the civil society.
We demand from the RA Ministry of Justice and the Supreme Judicial Council to take steps to take disciplinary action in relation to the judges involved in the case of Tehmine Yenokyan, based on the blatant and gross violation of material and procedural norms in the administration of justice.