American University of Armenia. Masters Paper

American University of Armenia Masters Paper THE NECESSITY OF THE INSTITUTION OF COMPENSATION OF MORAL DAMAGES IN ARMENIA AND ITS APPLICATION IN PRACTICE LLM 2-nd year student Ani Chilingaryan Instructor Armen Mazmanyan Yerevan 2011 1

C O N T E N T Introduction--------------------------------------------------------------------------------------------------3 Chapter 1. RA Legislation 'Regulating' the Compensation of Moral Damages and Case Law-----5 Chapter 2. The Institution of Compensation of Moral Damages in Other Countries--------------13 Conclusion------------------------------------------------------------------------------------------------23 Bibliography---------------------------------------------------------------------------------------------24 2

INTRODUCTION RA Civil Code entered into force in 1999 and it was a great success in terms of the regulation of civil relations and the level of reforms of different legal institutions. But of course there were also some gaps one of which is the absence of the regulation of the compensation of moral damages, an institution which importance and demand is growing day by day. Not only material goods need to be protected from illegal actions but also non-material goods the basis of which is the mental integrity and physical welfare of human beings. The application of this institution is highly recommended by the established practice of lots of countries, both Anglo-Saxon and Germanic legal systems. It is also stipulated in the Model Civil Code of CIS countries which was adopted in October 1994 by the Interparliamentary Assembly of the CIS. There is a separate article which lists the means of protection of civil rights and one of those means is the compensation of moral damages. Model Civil Code, Art. 12, p.9. Article 17 and then Articles 1024 and 1025 regulate the institution in more details. Moreover, this institution existed in the former RA Civil Code which explicitly prescribed the compensation of moral damages as a separate means of responsibility. We cannot say the same about the present-day Civil Code which does not use the term compensation of moral damages though there has been some progress in regulating this sphere recently. This paper will further explore the existing Armenian regulation concerning this issue as well as the practice of countries which prescribe the possibility of compensating not only the damages for violation of material rights but also for causing mental and physical suffering. 3

The core issue of this paper is whether the institution of compensation of moral damages is regulated in Armenia when there is no direct stipulation of this kind of damages in RA Civil Code. The answer to this question may be given by analyzing the existing legislation. The aim of this paper is to try to find out whether we can consider that RA Civil Code regulates the field and if the answer is no then what steps should be taken to create this institution and to improve it. For this reason RA relevant articles are discussed and then cases concerning this issue are analyzed to find out what improvements and steps should be taken to ensure the necessary level of regulation of relations connected with the compensation of moral damages pointing out the weaknesses of the regulation of this sphere, if any. The second chapter concerns the comparative discussion of international practice on this issue and possible solutions for Armenia. The paper ends with a conclusion which brings together the ideas expressed in the main body of the paper. 4

CHAPTER 1. RA LEGISLATION REGULATING THE COMPENSATION OF MORAL DAMAGES AND CASE LAW The study and analysis of each legal institution is better to start by considering the constitutional basis for the existence of this or that legal right. Such constitutional basis is needed to give rise to more detailed regulation of relevant relations on the level of laws and other normative acts. Thus, RA Constitution, Article 3 recognizes the human being, his/her dignity and the fundamental human rights and freedoms as a penultimate value. Furthermore, it is stipulated that human dignity shall be respected and protected by the state as an inviolable foundation of human rights and freedoms. RA Constitution. Ch. 2 Art. 14. Article 18, part 1 prescribes that everyone shall be entitled to effective legal remedy to protect his rights and freedoms before judicial as well as other public bodies. As we can see, there is no distinction between property and personal non-property rights so according to the Constitution both these rights are protected in the same way. This means that constitutional basis for the detailed regulation of compensation of moral damages exists but the real regulation shall be provided by laws, particularly RA Civil Code. The analysis of the mentioned articles of RA Constitution only gives us the opportunity to assume or to imply the institution of moral damages. Article 162, part 1 of RA Civil Code lists the rights which constitute personal nonproperty rights and part 2 regulates the question how these rights should be protected. These rights include but are not limited to the following: Life and health Human dignity 5

Personal immunity Honor and good name, business reputation Inviolability of private life Secret of personal and family life The rights of freedom of movement and choice of residence The right to name The right of authorship These rights are protected in cases and procedure provided by RA Civil Code and other laws as well as in cases when the use of means of the protection of civil rights is applicable considering the nature of mentioned non-material values. RA Civil Code Art. 162. p,1. One of the means of the protection of civil rights listed in Article 14 is the compensation of damages. Article 19 is devoted to the protection of honor, dignity and business reputation. It protects the mentioned values from the defamation and libel made in a public manner. This formulation is relatively new since before that this article prescribed the means of protection of these rights such as the refutation of degrading information and also the compensation of damages. This change was the result of a new article which was added to RA Civil Code. It is Article 1087.1 which prescribes the procedure of the compensation of damages caused to honor, dignity and business reputation through insult or libel. This amendment was made on 18.05.2010. The aim was to prevent the possible abuses of freedom of speech since it is not an absolute right and may be restricted for the protection of others rights. In cases described in the mentioned article the person has the right to turn to court. The article defines both terms. Insult is a public statement through words, pictures, signs or other means made with the purpose of discrediting other s honor, dignity or business reputation. Libel is defined as the statement of such facts presented in 6

public that are not real and discredit one s honor, dignity and business reputation. The article also describes the circumstances when this or that action is not considered insult or libel. The exhaustive list of means of protection from insult or libel is provided. In case of insult those are the following: 1. Apologize in public the form of which decides the court. 2. Publish the decision of the court or the part of it in the same media if the insulting information is in that media. 3. To compensate in the amount of 1000 minimum salary. In case of libel one may require one or more of the following means: 1. If the libel is contained in the information disseminated by the one who implements the media activity, to refute in public the statement of facts and/or publish his response by that media. 2. To compensate in the amount of 2000 minimum salary. RA Law on Mass Media also prescribes the right to refutation and response but if the person has used his right to refutation and response according to the procedure prescribed by the abovementioned law and the implementer of the media activity has fulfilled his request, he cannot rely on the means of protection stipulated in Article 1087.1 of RA Civil Code 1. This article also provides for some criteria to be considered when deciding the amount of compensation. These are: The characteristics of the certain case The manner and the scope of dissemination of insult or libel The economic state of the insulter or the libeller. 1 RA Law on HO-14-N Mass Media, adopted 13 December 2003, Art 8. 7

The joint analysis of these articles shows that in order to bring into life the application of the mentioned rights we need effective protection mechanisms. The refutation of the information cannot be considered as an enough effective remedy for the protection of human dignity. This is obvious in such cases, for example, when graceless expressions are used to describe a person since these expressions cannot be refuted as is in the case of the dissemination of degrading information. Of course this does not mean that the refutation of the information is not an effective remedy at all. But in most cases and for most people this is not enough. In case the institution of moral damages is established everyone will be free to choose whether to use his right to get compensation or not. The problem is solved in part by Article 1087.1 but only this cannot be considered as the existence of the institution of moral damages. This is because, as explained in the next chapter, moral damages are not stipulated as a separate type of damages and that s why we cannot speak about the institution of moral damages. This article can only be considered as an adjacent institution or an alternative regulation. Now let s turn to case law and discuss several recent cases. On 07.02.2011 the Court of First Instance of Kentron and Nork-Marash Communities issued the judgment concerning the case filed by Armenian Oligarchs against Dareskizb LLC 2. Three of Armenia's wealthiest businessmen have filed a libel lawsuit against a pro-opposition daily that implicated them in a criminal activity in Russia. A report was published by the daily newspaper "Haykakan zhamanak" in October in which Smbat Karakhanian was quoted as alleging that Russian authorities suspect eight senior Armenian officials and government-connected businessmen of involvement in drug trafficking, money laundering and other serious crimes committed in Russia. Russian officials have not confirmed the allegations. 3 Armenian businessman from that 2 RA Court of general jurisdiction of Kentron and Norq-Marash Communities. Case N ºÎ /2347/02/10 (2011). 8

list were seeking 7.5 million drams for the damage caused to their honor and dignity since the information containing in the report was false. The legal basis of the claim was Article 1087.1 of RA Civil Code. The court applied the mentioned article considering that disseminated information may constitute libel if: 1. The information discredits one s honor, dignity or business reputation. 2. The information is false and 3. The information is presented in public This is a conjunctive test and all these conditions shall be met for the action to be considered a libel. The court found that these requirements are met and moreover the defendant did not provide any evidence to prove that the information was not false despite the fact that the burden of proof was on the defendant. The information was considered to discredit plaintiffs honor and dignity since drug trafficking, money laundering are crimes according to RA Criminal Code. This is for sure an unacceptable behavior especially on behalf of members of parliament and will degrade them in the eyes of the society. Thus, all this was enough for the court to make a judgment in favor of the plaintiffs to recover moral damages in the amount of 2 million drams each. As it was already mentioned the plaintiffs were members of parliament and therefore they are public figures. The court considered this issue a very important factor and noticed that their position was endangered since the negative opinion of the society discredits the plaintiffs reputation both as a person and as a member of parliament. Their position as representatives of legislative authority in public life was taken into consideration when deciding the amount of the compensation and this was the reason why the court determined the highest possible amount of compensation. As we can see the position of the plaintiffs does not play a significant role for the solution of the case. A different approach is applied in US. The fact whether the plaintiff is a 9

public or private figure and whether there is a public or private concern plays a decisive role. This is because the First Amendment to the US Constitution applies which provides for the freedom of speech. If the plaintiff is a public figure and sues regarding public concern than the Amendment has a threefold impact on the plaintiff s right to recover 3. This was first stipulated in New York Times v. Sullivan case. In such cases: 1. the burden of proof is shifted to the plaintiff who shall prove falsity 2. the plaintiff shall prove that the defendant acted with "actual malice" 3. a higher standard of proof is required, that is convincing clarity. This is also true for cases dealing with private figures and public concerns with slight differences. Gertz v. Robert Welch, Inc. The same outcome had also the case Qocharyan L. v, Haykakan jamanak and the same reasoning was applied here as in the case of olygarchs 4. These two cases were decided when Article 1087.1 was already in force. The case Hrach Qeshishyan v. Hraparak daily 5 was decided before that when RA Civil Code was not amended by Article 1087.1. The case was rejected since the court considered that the institution of compensation of moral damages does not exist in RA legislation. The court mentioned that the notion of damages is defined in Article 17 of RA Civil Code and according to that definition two types of damages exist: real damages and loss income. The court found that moral damage is 3 Burnham, W. Introduction to the law and legal system of the United States, 4 th edition, USA, Thomson/West, 2006. 4 RA Court of general jurisdiction of Kentron and Norq-Marash Communities. Case N ºÎ /0565/02/09. 5 RA Court of general jurisdiction of Kentron and Norq-Marash Communities. Case N ºÎ /1765/02/09 (2010). 10

a separate type of damages and the compensation of moral damages is a separate means of responsibility. Consequently, it shall be prescribed by law to be applied by courts when deciding the cases with claims of compensation of moral damages. Now let s turn to another case concerning the compensation of moral damages which was dismissed by the court. Maryam Sukhudyan v. RA Government 6. The claim of compensation of moral damages was based on the violation of the presumption of innocence. The plaintiff mentioned that in Alen de Ribemon v. France case the European Court of Human Rights decided that the representatives of authotities shall not violate the presumption of innocence. This is not for judges only. For example, it prohibits governmental officials to declare that the defendant is guilty. Along with this negative obligation Article 6 of European Convention on Human Rights and Fundamental Freedoms obligates countries to compensate damages caused by violating the presumption of innocence (positive obligation). The reasoning of the court in this case is the same as in case of Hrach Qeshishyan. Since moral damages is not explicitly defined as a different type of damages, it may not be compensated due to lack of regulation. As we can see from the last 2 cases, the court considered that there shall be an explicit stipulation that moral damage is a separate type of damages and the compensation of moral damages is a different means of responsibility. Thus, it is supposed that unless there is a change in Article 17 of RA Civil Code which defines the term damages and stipulates its types, there cannot be a possibility of compensation of moral damages. In contrast, in cases where the court decided to grant the compensation of moral damages, the court does not consider anymore the fact that moral damages as itself is not mentioned in Article 17 and it cannot be considered as a 6 RA Court of general jurisdiction of Kentron and Norq-Marash Communities. Case N ºÎ /1437/02/10 (2011). 11

type of damages as before. If we consider the reasoning of the court, then Article 1087.1 cannot be the basis for granting the compensation for moral damages. Moreover, this means that there is a contradiction between Article 17 and Article 1087.1 since Article 17 provides only two types of damages and the damage that is allowed to compensate according to Article 1087.1 is neither real damage nor loss income. 12

CHAPTER 2. THE INSTITUTION OF COMPENSATION OF MORAL DAMAGES IN OTHER COUNTRIES RA Civil Code prescribes the types of damages: actual damage and lost benefit. RA Civil Code, Art. 17. Thus, moral damage is not considered as a separate form of damages according to this article and consequently one cannot require compensation of moral damages in court because of the lack of legal basis. As Suren Anonyan, a judge of the Court of Cassation of RA stated before Article 1087.1 had entered into force, all the cases were dismissed by courts 7. The institution of moral damages is a broad notion and it does not include only the protection of honor, dignity and business reputation. Mr. Beqmezyan who is a specialist in the sphere of compensation of damages mentioned that moral damages should be claimed when the harm is caused to one s life, health or freedom 8. He brought an example when a person was unlawfully convicted and imprisoned. Five years later it turned out that he was convicted by mistake and he was acquitted. This is a very simple example of a case when the person shall be compensated for her both mental and physical suffering. In case of pain and suffering compensation, which is the same as compensation for moral damages the payment is awarded on the grounds that the victim experienced pain and suffering due to the actions of the defendant and deserves a financial compensation for it 9. But there is also an opinion that Armenia is not ready to have such an institution in practice. This institution may be fully effective only in real democratic countries 10. 7 Antonyan, Suren. Personal interview. 18 Jan 2011 8 Beqmezyan, Grigor, Personal interview. 18 Jan 2011 9 Wisegeek. What is pain and suffering compensation? 13, March, 2011 http://www.wisegeek.com/what-is-pain-and-suffering-compensation.html 10 Aysor, Compensation of Moral Damages is not for Armenia. 10.12.2010, 15.45, 10.30.2011 13

The first problem concerning this issue is that we do not have the legal definition of moral damages. This is because we do not have this institution at all. To start the regulation of the field we need first of all to define this notion to realize what its aim is, what components it has and for the protection of which rights it serves. According to Article 151 of Russian Civil Code moral damage is defined as physical or mental suffering. Every illegal action or omission can cause mental suffering of different levels and have a fatal impact on the mental well-being of a person. The essence and explanation of moral damages is somehow given in the Supreme Court Plenum Decision according to which moral damages constitute mental or physical suffering caused by actions or omissions which infringe upon non-property rights such as life, health, dignity, business reputation, or which violate personal non-property rights or property rights of citizens. Supreme Court Plenum Decision, N 10, adopted 10 December 1994. Moral damages may result in mental suffering connected with, for example, loss of parents, loss of employment, dissemination of false information discrediting honor, dignity and business reputation of a citizen. The definition given in Russian Civil Code is a little vague whereas Supreme Court Plenum Decision defines the term wider and gives a detailed explanation. To avoid misinterpretations and uncertainty, it is better to mention the rights which shall be protected by means of compensation of moral damages. In my opinion these are right to life, right to health and right to freedom. Physical suffering which is a part of the definition of moral damages may be confused with physical harm. The main distinction between these two notions is that the latter is defined as negative changes in human organism preventing his normal functioning. These changes in their turn bring to the deterioration of mental well-being 11. In other words physical harm may http://www.aysor.am/am/news/2010/12/10/moral-damage-armenia/ 11 Эрделевский, А. М. Компенсация морального вреда. 3-е издание. Москва: Волтерс Клувер, 2007, стр. 3. 14

constitute a ground for compensation of pecuniary damages and physical suffering is a precondition for the right to compensation of moral damages to arise. It is well-known that the right to compensation cannot arise by itself in every case when one suffers from something. In order this right to arise some grounds and conditions are needed such as: 1. Suffering 2. Illegal action (omission) through which the damage was caused 3. Causation between the first two conditions 4. Guilty mind There is a contradiction between Russian legislation and judicial practice. According to Article 56 of Civil Codе each party shall prove the circumstances on which his statements are based. On the contrary Russian courts apply the presumption of moral damages, that is if the illegal action is proved to be made, then the courts suppose the moral damages (suffering) to be caused and decide the amount to be compensated 12. If we choose this model and apply the presumption of moral damages, then it is reasonable to give the defendant an opportunity to prove that the plaintiff did not suffer any physical or mental suffering. According to the Russian practice moral damages are supposed to be caused in every single case and the court just determines the amount of damages. In such case the burden of proof shall be shifted to the defendant and he shall prove the absence of moral damages. Otherwise, we will violate the equality before the court and the right of parties to adversary proceeding. Moreover, according to Russian legislation and practice no real detraction of nonproperty values is required for the right to compensation for the plaintiff to rise. The real threat 12 Эрделевский, 91 15

of the detraction is quite enough. This is inferred from Article 151 of Civil Code which defines the ground for the right to compensation to threaten non-property values of citizens. As a rule, one shall have a guilty mind (either intent or negligence) to be responsible for causing moral damages. But there are some exceptions to this general rule listed in Article 1100 of Civil Code such as: Damage caused to one s life or health by a source of extreme danger. Damage caused as a result of illegal conviction or illegal imprisonment Damage caused through the dissemination discrediting honor, dignity and business reputation. This speaks about relatively well-developed institution of moral damages in Russia. In any case in Armenia even in cases when guilty mind exists one is not responsible for his actions or omissions which caused another s pain and suffering. Russian model concerning these exceptions is a very good option for Armenia as well. Article 150 contains a non-exhaustive list of non-property values which are subject to protection. Those are: life and health, human dignity, personal integrity, honor and good name, business reputation, integrity of private life, personal and family secret, right to movement, choice of residence, right to name, right to authorship as well as other personal non-property rights and values which are indispensable from citizens. These are the rights which violation brings to the right to get compensation of moral damages. Article 151 stipulates that when rights other than mentioned in Article 150 are violated, the compensation of moral damages is possible if it is explicitly provided by law. 16

It may sound surprising, but there are also some property rights which, if violated, are also subject to compensation of moral damages 13. The most important one is the breach of consumers rights. In these cases consumers are entitled to get compensation of moral damages only if defendant had a guilty mind. Concerning the amount of the compensation to be paid, it may not depend on the price of the merchant but it should consider the nature of the mental and physical suffering caused to the consumer in each particular case. Supreme Court Plenum Decision, N 10, adopted 10 December 1994. Another type of the compensation of moral damages according to Russian legislation is the case of the family members of a deceased person. The compensation of moral damages caused to honor, dignity and business reputation is considered only a part or a type of the institution of moral damages whereas in Armenia it is the only case which can make the impression that the institution of moral damages is somehow addressed in Armenian legislation. Referring to the amount of the compensation there is no regulation on how to calculate the compensation which is to be paid. There are no clear and precise criteria or methodology according to which the courts shall assess the amount of the compensation. Anyhow, Article 151 and 1101 contain some criteria which shall be considered by courts when deciding the amount of compensation. The first criterion to be considered is the level of guilt. Of course, this is not applied to such cases when the compensation of moral damages is available notwithstanding the fact that there is no guilty mind. The next two criteria are the level and the nature of physical and mental suffering which are connected with individual characteristics of the injured party and also the conditions of causing the moral damage. The mentioned criteria imply the deepness (the average deepness) of 13 Эрделевский,106 17

suffering which may be increased because of individual characteristics and vice versa. Concerning the nature of suffering, there is an opinion that the nature of non-property values which were caused to be damaged shall be considered instead of the physical and mental suffering 14. The last criteria are the requirements of reasonableness and fairness. This is mainly about the requirement to define reasonable and fair amounts of compensation for different kinds of cases 15. Other criteria for deciding the amount of compensation are the level of guilt of the injured party and the wealth of the offender. The first one is considered to be mandatory and the second one is somewhat supplementary. The institution of compensation of moral damages exists also in Germany. The right to get compensation is possible if the criteria which were discussed in case of Russia exist. That is: 1. Suffering 2. Illegal action (omission) through which the damage was caused 3. Causation between the first two conditions 4. Guilty mind Until recently German courts have been lowering the amount of compensation when the injured party was not able to suffer and to realize his situation as a result of a serious harm caused to him. But this point of view was strongly criticized by some German legal researchers and as a result this approach was changed. Now the loss of feeling and taking the surrounding world in a real form as a result of a bodily harm caused to the injured serves as a condition for 14 Эрделевский, 204-205 15 Эрделевский, 205 18

the amount of the compensation to raise. The injured party recovers damages for loss of enjoyment 16. In Germany also there are such cases when even in the absence of guilt one is responsible for non-property harm caused to the injured party. As a general rule, the infringer is responsible directly before the injured party and those who suffered indirectly witnessing the accident are not compensated. But there is an exception to this rule for those who are in close ties with the injured 17. Indeed, sometimes the witness of an accident suffers more than the directly injured person. For example, mother who has seen a car run over her child. In such cases the witness should have the right to get compensation for moral damages. The provision which speaks about the right to compensation for non-property rights is contained in German Civil Code. Article 253 which is named Non-property damage prescribes that monetary compensation for non-property damage is possible only when directly stipulated by law. This means that if there is no specific provision in a law which requires compensation for moral damages as a result of certain actions, then this right does not exist. In case of Armenia if this kind of damage is included in Article 17 of RA Civil Code as a type of damages there will be no need to have such a provision in law. Whenever the person has the right to compensation for damages, he will have both the right to compensation of pecuniary and moral damages by virtue of Article 17 of RA Civil Code. Before turning to the issue of the amount of the compensation let's consider the aims of such compensation 18. One of its functions is to mitigate the physical and mental suffering. Another function is satisfactory function which means that the injured party has the right to get 16 Эрделевский, 57-58 17 Эрделевский, 58 18 Эрделевский, 62 19

moral satisfaction by putting the burden of monetary compensation on the defendant. When determining the amount to be paid courts first of all consider the first function of the compensation of moral damages and not its satisfactory character. The compensation needs to be fair which means that the aim of which is to put the injured party in a position in which he was before the violation of his right. This shall not lead to such a situation when the injured party is put in a better position than before. The compensation is made in a lump sum (sometimes by way of periodic payments) and what is the most important courts take into consideration the amount of compensation determined by other courts in similar cases 19. The notion of fair compensation is quite vague which is more or less detailed due to judicial practice. The following criteria are established and are used to determine fair compensation. These include 20 : 1. Physical suffering the type of injury, the length of the treatment, the length of the consequences etc. 2. Mental suffering remaining consequences, the age of the injured, disfigurement, the possibility of further professional working, the level of realization of the hardship of his situation, etc. 3. Conditions connected with the injurer the level of guilt, financial situation, etc. There is a similar regulation for the determination of the amount of moral damages in CIS Model Civil Code which stipulates that when deciding the amount of compensation the following criteria shall be considered: 1. The nature of physical and mental suffering 2. The level of guilt 19 Эрделевский, 64 20 Эрделевский, 69 20

3. Reasonableness and fairness In the US one of the types of damages is compensatory damages one of the components of which is non-economic loss 21. This includes pain and suffering which means that physical injury is accompanied by physical pain and mental suffering. There is a distinction between the moral damage caused by negligence and joined by bodily injury and moral damage caused by negligence but without any bodily injury. In the first case the damage shall be compensated but the same cannot be said about the second case. The rationale behind this rule is the necessity to exclude the possibility of false actions, as well as the difficulty to prove the mental damage without any physical injury. Thus, one may demand the compensation of moral damages only when there was physical influence on him or mental suffering resulted in physical injury, for example, heart attack. An eye-witness of such actions may also demand compensation but only when one of the following criteria exists: 1. The witness was close to what happened 2. He was in special relationship with the injured 3. The injurer had a contractual obligation for towards the eye-witness and the injured. In some cases the eye-witness may be compensated even without the existence of the mentioned criteria considering only the forseeability in the frames of reasonableness, the possibility to cause mental harm to witnesses 22. In case of actual malice there are very few obstacles for the plaintiff to recover damages. For example, one may get compensation even when the only consequence of the violation was the emotional distress. Or in case of battery there is no need to prove the physical contact. 21 Burnham, W. Introduction to the law and legal system of the United States, 4 th edition, USA, Thomson/West, 2006 22 Эрделевский, 48 21

In order not to let the injurer who acted with actual malice and caused serious bodily harm to another person escape responsibility US courts widen the notion of physical influence including the influence on clothes of the injured, his car or house 23. Thus, in order to say without any doubt that compensation of moral damages does exist in RA and to prescribe a relevant regulation, we shall: 1. Amend Article 17 of RA Civil Code and add moral damages within its definition enumerating the types of damages. 2. Provide the legal definition of moral damages which shall include the protection of right to life, right to health and right to dignity. 3. To define clearly when the burden of proof is on the defendant and when on the plaintiff. Particularly, when the plaintiff and consequently the victim is a public figure, a preferable solution will be to shift the burden of proof on the plaintiff. She shall have to prove the falsity with a relatively high standard of proof. 4. If Russian model concerning the presumption of moral damages is integrated in Armenia, the burden of proof shall be places on the defendant to prove that the plaintiff has not suffered moral damages. 5. To separate the bases when the right to compensation arises when the defendant had a guilty mind and bases when the right can arise even in the absence of guilty mind. 6. To define criteria for determining the amount of compensation, such as the level of guilty mind, the level and nature of mental and physical suffering, reasonableness and fairness. 7. To think on integrating US experience concerning the right to compensation of eyewitnesses, as discussed above. 23 Эрделевский, 48 22

C O N C L U S I O N Taking into consideration all that was discussed in this paper it is not so easy to give an answer to the question whether the institution of moral damages exists according to RA legislation. Both answers may have some justification. Indeed, Article 1087.1 of RA Civil Code is a progress and a step towards the regulation of institution of moral damages. But on the other hand, as explained in the paper there is a contradiction between Article 17 and Article 1087.1. And this contradiction does not allow me to state that Article 1087.1 regulates the institution of moral damages. It can be considered only as a neighboring institution but not exactly the same as the compensation of moral damages is. The fact that it is already the time for Armenia to have such an institution is beyond reasonable doubt. But for integrating this institution into RA legislation we need to align all laws or articles together so as not to leave room for interpretation. International experience shall play an important role in drafting the rules concerning the institution of moral damages of course taking into consideration our own approaches and our mentality. The quality of laws and provisions become clear during application, that s why we need to study the regulations concerning this institution in such countries that have at least a minimum application of the stipulated provisions. The countries discussed in the paper are good models and Armenia can take some provisions regulating the institution of moral damages examining also their application in practice and thus deciding which provision may work in Armenia and which is irrelevant for us. Thus, undoubtedly the institution shall be integrated in RA legislation to ensure more effective protection of the rights mentioned in the paper. 23

B I B L I O G R A P H Y 1. RA Constitution 2. RA Civil Code ՀՕ-239, adopted in 05.05.1998 3. Model Civil Code of CIS countries 4. RA Law on HO-14-N Mass Media, adopted 13 December 2003 5. Burnham, W. Introduction to the law and legal system of the United States, 4 th edition, USA, Thomson/West, 2006 6. Эрделевский, А. М. Компенсация морального вреда. 3-е издание. Москва: Волтерс Клувер, 2007 7. Wisegeek.What is pain and suffering compensation? 13, March, 2011 http://www.wisegeek.com/what-is-pain-and-suffering-compensation.htm 8. Aysor, Compensation of Moral Damages is not for Armenia. 10.12.2010, 15.45, 10.30.2011 http://www.aysor.am/am/news/2010/12/10/moral-damage-armenia/ 9. RA Court of general jurisdiction of Kentron and Norq-Marash Communities. Case N ºÎ /0565/02/09. 10. RA Court of general jurisdiction of Kentron and Norq-Marash Communities. Case N ºÎ //1765/02/09 (2010). 11. RA Court of general jurisdiction of Kentron and Norq-Marash Communities. Case N ºÎ //1437/02/10 (2011). 12. RA Court of general jurisdiction of Kentron and Norq-Marash Communities. Case N ºÎ //2347/02/10 (2011). 24

13. Beqmezyan, Grigor, Personal interview. 18 Jan 2011 14. Antonyan, Suren. Personal interview. 18 Jan 2011 25