Resolution CM/ResDH(2008) 18 [1]

Execution of the judgments of the European Court of Human Rights

Grinberg against the Russian Federation

Zakharov against the Russian Federation

(Applications No. 23472/03 and 14881/03, judgments of 21 July 2005 and 5 October 2006,

final on 21 October 2005 and 5 January 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern disproportionate interferences with the applicants ' freedom of expression on account of them having been found guilty in defamation in 2002 and 2003, under civil law, following an article criticising a political candidate and a complaint about the irregularities in the conduct of the town council head sent by way of private correspondence to the competent State official (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with the Russian Federation ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of:

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

Noting that certain other problems relating to freedom of expression of journalists in particular were highlighted in more recent judgments of the Court (see in particular Chemodurov against the Russian Federation, judgment of 31 July 2007 and Dyuldin and Kislov against the Russian Federation, judgment of 31 July 2007), and are being addressed by the Russian authorities, under the Committee ' s supervision, in the context of the execution by the Russian Federation of those judgments;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2008)18

Information about the measures taken to comply with the judgments in the cases of

Grinberg against the Russian Federation

Zakharov against the Russian Federation

Introductory case summary

These cases concern a disproportionate interference with the applicants ' freedom of expression on account of them having been found guilty in defamation in 2002 and 2003, under civil law, following an article criticising a political candidate and a complaint about the irregularities in the conduct of the town council head sent by way of private correspondence to the competent State official.

In the Grinberg case, t he European Court found that the Russian law on defamation in force at the material time was not compatible with the Convention as it required the defendant to prove the truth of any negative statement, whether factual statements or, as in this case, value judgments not susceptible of proof.

In the Zakharov case, t he European Court noted that the domestic courts did not identify any “pressing social need” for putting the protection of the civil servant ' s personality rights above the applicant ' s right to impart information and the general interest in having irregular conduct of civil servant examined by competent authorities; they required the defendant to prove the truthfulness of any impugned negative statements which were his value judgments and consequently this requirement was impossible to satisfy. The European Court accordingly found that the interference with the applicant ' s right to impart information was not based on “relevant and sufficient” grounds.

I. P ayments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Grinberg (23472/03)

120 EUR

1 000 EUR

1 120 EUR

P aid on 27/12/2005

Zakharov (14881/03)

1 000 EUR

1 000 EUR

P aid on 2/04/2007

b) Individual measures

In both cases, the Court awarded just satisfaction in respect of non-pecuniary damage and in the Grinberg case, pecuniary damage incurred in connection with the violation found.

In these cases, no other individual measure is necessary in addition to the just satisfaction.

II. General measures

On 24/02/2005 the P lenum of the Supreme Court of the Russian Federation issued a Decree No. 3 providing guidelines to lower courts on the application of Article 152 of the Civil Code regarding defamation in the light of Article 10 of the Convention.

The Supreme Court particularly insisted on the necessity for judges to distinguish between statements of fact susceptible of proof and value judgments, opinions or convictions which do not fall within the scope of the Article (point 9 of the aforementioned Decree). The Supreme Court also drew the lower courts ' attention to the fact that political figures have decided to appeal to the confidence of the public and accepted to subject themselves to public political debate. It also concerns public officials who must accept that they will be subject to public scrutiny and criticism, particularly through the media, over the way in which they have carried out or carry out their functions, insofar as this is necessary to ensure transparency and the responsible exercise of their functions. In doing so, the Supreme Court referred to the Declaration on freedom of political debate in the media adopted by the Committee of Ministers of the Council of Europe on 12 February 2004 ( idem ).

The Supreme Court then held that if an individual refers to relevant authorities in order to inform them of a crime being committed or prepared or of other facts, which have not been confirmed at the end of an inquiry or a checking, this mere fact cannot in itself entail this person ' s liability pursuant to Article 152 of the Civil Code. This is due to the fact that, in this type of cases, the person concerned has exercised his or her constitutional right to refer to relevant authorities, which have the obligation to check factual allegations but not to spread false information that may affect the honour of or the respect for a person. The only case which may give rise to judicial proceedings is a recognised abuse of right (point 10 of the aforementioned Decree).

The Grinberg judgment was published in the Bulletin of the European Court of Human Rights (Russian edition), 2005 No.12.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, similar violations and that the Russian Federation has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 27 March 2008 at the 1020th meeting of the Ministers’ Deputies