Resolution CM/ResDH(2010)164[1]
Execution of the judgment of the European Court of Human Rights
Gorelishvili against Georgia
(Application No. 12979/04, judgment of 5/06/2007, final on 5/09/2007)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection 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 judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns an infringement of the right to freedom of expression of the applicant, a journalist at the material time, in that she was ordered to pay a fine for defamation in September 2003 for having published an article on the financial situation of a political personality in the light of the latter’s declaration of property (violation of Article 10) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
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 the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its 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
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)164
Information about the measures to comply with the judgment in the case of
Gorelishvili against Georgia
Introductory case summary
The case concerns an infringement of the right to freedom of expression of the applicant, a journalist at the material time, in that she was ordered to pay a fine for defamation in September 2003 for having published an article on the financial situation of a political personality in the light of the latter’s declaration of property (violation of Article 10).
The European Court noted in particular that there was no doubt that the applicant’s freedom of expression was exercised in the context of a matter of important public interest and that the expressions condemned by the Supreme Court amounted to an opinion, albeit expressed provocatively. The European Court concluded that the standards applied by the Supreme Court were not compatible with the principles embodied in Article 10, since it had not adduced relevant and sufficient reasons to justify the interference with the applicant’s right to impart information and ideas on matters of public concern. The Court therefore concluded that the interference was not necessary in a democratic society.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
1 500 EUR
-
1 500 EUR
Paid on 28/11/2007
b) Individual measures
No claim for pecuniary damage was made. The European Court however considered that the applicant must have suffered some non-pecuniary damage for which the finding of a violation would not constitute sufficient compensation and therefore awarded the applicant a sum under this head.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.
II.General measures
1) Legislative changes: The European Court stated that the Georgian law on defamation at the material time had led to the decision of the Supreme Court. In particular, Article 18 of the Civil Code made no distinction between value-judgments and statements of fact, referring uniformly to “information” (cnobebi), and required the truth of any such “information” to be proved by the respondent party. Such an indiscriminate approach to the assessment of speech is, in the eyes of the Court, per se incompatible with freedom of opinion, a fundamental element of Article 10.
Since the facts of the present case, Article 18 of the Civil code has been amended. It is no longer required of the respondent party to establish proof the information communicated. Article 18 of the Civil Code deals with the right to reply in the media and request for compensation in respect of non-pecuniary and pecuniary damages for infringements of honour, dignity, private life, personal security and reputation.
The law of 24/06/2004 concerning freedom of speech and expression replaced the law on press and media, in force at the material time.
This law defines defamation as “a statement containing false facts harmful to an individual, his / her name or reputation” (Chapter 1, Article 1e). The law further specifies that “any person, except public agents, enjoys freedom of expression which means a) absolute freedom of opinion, b) freedom of speech and of political debate” (Chapter 1, Article 3, 2).
Chapter IV of the law concerns defamation and makes a distinction between defamation towards a private individual and a public personality. It specifies that it is for the defendant to prove that a fact is erroneous and that he / she has suffered prejudice as a result of its publication. Concerning defamation towards a public personality, the civil responsibility of the defendant is engaged if the plaintiff proves that the defendant knew that the fact was erroneous. The defendant’s civil responsibility is not engaged if the publication of the erroneous statement is the result of the plaintiff’s gross negligence.
Article 15 of the law provides for the cases where the defendant enjoys partial or conditional exemption of liability. This applies to a person having stated an erroneous fact if:
a) he / she took reasonable steps to ascertain the truth of the facts but could not avoid a mistake and subsequently took measures to restore the reputation of the person offended;
b) his or her aim is to protect a legitimate public interest and the interest protected exceeds the damage inflicted;
c) the statement was made with the agreement of the plaintiff;
d) the statement constitutes a proportionate response to the statement made by the plaintiff against him or her;
e) the statement is a description lawful and accurate of an event which attracts the public attention.
Article 16 of the law provides that no one can be held responsible of defamation if he/she did not know or could not know that the defamatory statements were / would be spread.
Finally, Article 2 of the law provides that the “law may be interpreted in accordance with the Constitution of Georgia and the international obligations of Georgia, in particular the European Convention of Human Rights”.
2) Publication / dissemination of the judgment of the European Court: The judgment, translated into Georgian, was published in the Official Gazette No. 54, dated 12/11/07. It is available on the website of the Ministry of Justice of Georgia . In addition it was distributed to various state bodies and in particular the Supreme Court.
3) Direct effect of the Convention and the Court’s case-law in Georgian law: The Georgian authorities underline that, when dealing with cases concerning freedom of expression, domestic courts refer to the Convention and the Court’s case-law. Thus, in the case of Z. against K., in which the applicant Z. was complaining of the dismissal of his compensation request for defamation by the Tbilisi first instance and appeal courts, the civil chamber of the Supreme Court held by judgment of 23/07/2009 that the first-instance and appeal courts had rightly found that the statements in question constituted an opinion on a question of public interest. The Supreme Court recalled that “the interpretation of the law concerning freedom of speech and expression should be made in conformity with the international obligations of Georgia, including the European Convention on Human Rights and the case-law of the European Court of Human Rights”, and after analysing the necessity in a democratic society of a possible restriction to the freedom of expression in the case, as well as the limits of an “acceptable critic”, the Supreme Court confirmed that there had been no defamation in the case.
III.Conclusions of the respondent state
The government considers that no individual measure is required, apart from the payment of the just satisfaction and that the general measures adopted will prevent similar violations and that Georgia has thus complied with its obligations under Article 46, paragraph 1 of the Convention.
[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies
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