Case of Rustavi 2 - Tea Tsulukiani makes a statement on Strasbourg"s decision

Published in Justice
Thursday, 18 July 2019 18:19

"The dispute has ended with the victory of the state,"- Tea Tsulukiani, the Justice Minister of Georgia made a statement a few minutes ago.

According to her, only part of the Strasbourg decision on Rustavi 2"s case is not subject to appeal - the cancellation of the suspension mechanism.

"The state has won the dispute with a full victory. The Chamber composed of seven judges decided unanimously that it is no longer appropriate to maintain the application of the suspension mechanism and it is removed. They found inadmissible all complaints of "Rustavi 2" . They found inadmissible the complaint on property rights of brothers Kharamanishvili and " TV Sakartvelo". They unanimously ruled that the right of the brothers Karmanishvili and TV " Georgia" regarding the fair court, which is linked to Nino Gvenetadze was not violated. There is no need to discuss the complaint in this case, "Tea Tsulukiani said.

www.rustavi2.ge

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    by six votes to one, that there had been no violation of Article 6 § 1 (right to a fair trial by an
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    unanimously, that there had been no violation of Article 6 § 1 of the European Convention as
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    by six votes to one, that there had been no violation of Article 6 § 1 as concerned the composition
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    However, the Supreme Court had extensively assessed any fears in that regard and had convincingly
    dissipated them in a thoroughly reasoned ruling.
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    systematically introduced ill-founded recusal requests against many different judges at all three
    levels of jurisdiction in a probable attempt to paralyse the administration of justice, while Rustavi 2’s
    Director General had made gratuitous and virulent attacks in the media against the domestic judges
    involved in examining the ownership row and against the Georgian judiciary in general.
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    under Rule 39 of its Rules of Court indicating to the Georgian Government that it should among
    other things suspend enforcement of the decision of March 2017.
    1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
    any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
    considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
    judgment. If the referral request is refused, the Chamber judgment will become final on that day.
    Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
    Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
    2
    Principal facts
    The applicants are Rustavi 2 Broadcasting Company Ltd, a television channel in Georgia, and its
    current owners, TV Company Sakartvelo Ltd and Levan and Giorgi Karamanishvili, two brothers who
    are Georgian nationals living in Tbilisi. There were numerous transfers of Rustavi 2 shares from one
    private party to another from 1996, when the television channel was founded, until 2011, when the
    second to fourth applicants took over.
    In August 2015 a former owner of Rustavi 2, K.K., brought civil proceedings against the applicants
    alleging that he had been coerced into selling his shares in the company in 2005 and 2006 by the
    then leaders of the governing party, the United National Movement. He submitted in particular that
    President Saakashvili, who was dissatisfied with Rustavi 2’s editorial policy, and high-ranking State
    officials had threatened him and his family if he refused to sell his shares. He had then had to leave
    the country for fear of further persecution, and was granted political asylum in Germany. In his
    claim, he also requested that he be acknowledged as the creator of the channel’s logo and three
    entertainment shows.
    In November 2015 the first-instance court found in K.K.’s favour regarding most of his claims, apart
    from those regarding his intellectual property, which it dismissed as unsubstantiated. In particular it
    found that there had been no coercion under Article 85 of the Civil Code, but that there had been a
    “manifest discrepancy” between the actual value of Rustavi 2 in 2005-2006 and the payment K.K.
    had received in exchange. It therefore considered that the agreement which he had entered into
    was void under Article 54 of the Civil Code. The current owners of Rustavi 2 had to have been aware
    that the property they were acquiring had been misappropriated and they could not therefore be
    considered bona fide third-party acquirers. In June 2016 the appeal court upheld that decision in full.
    In March 2017, following an appeal on points of law lodged by the second to fourth applicants, the
    Grand Chamber of the Supreme Court confirmed the lower courts’ findings about Rustavi 2’s current
    owners not being bona fide third-party acquirers. However, it considered that Article 85 of the Civil
    Code, under which it was possible to void a contract made under duress, should have been applied
    instead of Article 54. It found that K.K. had been coerced into selling his shares, which had been
    proven, among other things, by the fact that he had been granted political asylum in Germany in
    2009 and the status of a person persecuted for political reasons by the previous regime in 2012. It
    also took into account the fact that K.K. had voiced his grievances about the coercion before the
    relevant domestic authorities as early as December 2009.
    Pending a decision in those proceedings, the judge assigned to the case at first instance, Judge T.U.,
    granted K.K.’s application for a preliminary injunction to freeze both Rustavi 2’s corporate assets and
    all of the owners’ shares in the company. Appeals against that ruling were all dismissed in November
    2015.
    Throughout the proceedings, the applicants made a series of unsuccessful recusal requests,
    complaining that judges examining their case lacked independence and impartiality. The Supreme
    Court found in particular that the judges had been right not to withdraw from the case. It referred,
    among many other arguments, to various public interviews by Rustavi 2’s Director General between
    September 2015 and March 2017, finding that he had made unacceptable insults against the judges
    of the first and appellate instances and had even confirmed that he had intentionally attacked Judge
    T.U. to provoke his recusal.
    According to the applicants, the proceedings against them were a disguised attempt to silence
    Rustavi 2, an independent television channel, and were part of a wider orchestrated campaign
    against them from 2012 when the new ruling party, the Georgian Dream Coalition (“the GDC”), came
    to power. They alleged that the campaign included among other things: criminal proceedings being
    brought against the Director General of Rustavi 2 for corruption; alleged Government wiretapping of
    Rustavi 2’s premises; a national audit of so-called “people-meters”, devices used to monitor people’s
    3
    viewing behaviour by private television channels such as Rustavi 2; numerous interviews given to the
    media by the GDC and its leaders concerning the ownership row; and the suicide of another former
    owner of Rustavi 2 who had publicly declared that he also intended to claim back the channel.
    The Government contested the applicants’ allegations, arguing that the way in which they presented
    the incidents was deliberately misleading, incomplete or unrelated to the dispute before the
    European Court of Human Rights.
    Following the decision by the Supreme Court, Rustavi 2 (the first applicant) requested that the
    European Court grant an interim measure under Rule 39 of its Rules of Court, based on fears of
    irreparable harm to the television channel’s rights under Article 10 (freedom of expression). The
    Court granted the interim measure, indicating to the Georgian Government that the enforcement of
    the final domestic decision of March 2017 should be suspended, and that the authorities should
    abstain from interfering with the first applicant company’s editorial policy. The Court subsequently
    decided to extend that measure until further notice.
    Complaints, procedure and composition of the Court
    The applicants brought a number of complaints about the injunction and main proceedings
    concerning the ownership dispute over Rustavi 2, alleging that they had interfered with their rights
    under Article 6 § 1 (right to a fair trial), Article 10 (freedom of expression), Article 18 (limitation on
    use of restrictions on rights) and Article 1 of Protocol No. 1 (protection of property).
    They all complained that those proceedings had not been fair because the judges examining their
    case had lacked independence and impartiality and had been a disguised attempt to silence the only
    independent television channel in the country.
    Rusatvi 2’s (the first applicant) complaints focussed on the injunction proceedings, while its owners
    (the second to fourth applicants) specifically alleged unfairness in the main proceedings because of
    an unwarranted change in the judicial approach to the examination of the ownership dispute by the
    Supreme Court and because the reasons given by that court in its decision of March 2017 had been
    insufficient and/or arbitrary.
    The application was lodged with the European Court of Human Rights on 3 March 2017.
    The Public Defender of Georgia and the Georgian Young Lawyers’ Association were granted leave to
    intervene in the proceedings as third parties.
    Judgment was given by a Chamber of seven judges, composed as follows:
    Angelika Nußberger (Germany), President,
    Yonko Grozev (Bulgaria),
    Vincent A. De Gaetano (Malta),
    Síofra O’Leary (Ireland),
    Mārtiņš Mits (Latvia),
    Lәtif Hüseynov (Azerbaijan),
    Lado Chanturia (Georgia),
    and also Milan Blaško, Deputy Section Registrar.
    Decision of the Court
    Complaints brought by Rustavi 2
    The Court declared inadmissible all the complaints brought by the first applicant, Rustavi 2, under
    Article 6 § 1, Article 10, Article 18 and Article 1 of Protocol No. 1.
    4
    The part of the application concerning the injunction proceedings had been submitted out of time.
    In particular, for an application to be admissible it had to be lodged within six months of the last
    judicial decision in the case; Rustavi 2 had submitted its complaints about the injunction proceedings
    in March 2017, more than six months after the final decision had been taken by the domestic courts
    upholding the injunction measures, namely in November 2015.
    Furthermore, it found that the television channel did not have standing to bring a complaint about
    the main proceedings, namely the ownership row over Rustavi 2 shares. A person or company could
    not complain of a violation of the Convention in proceedings to which he or she had not been a
    party. Rustavi 2 was the object rather than the subject of the ownership dispute and it could not
    therefore claim to possess an interest.
    Complaints brought by Rustavi 2’s owners
    The Court also declared inadmissible most of the complaints brought by Rustavi 2’s owners, the
    second to fourth applicants, under Article 6 § 1, Article 18 and Article 1 of Protocol No. 1, finding
    them to be manifestly ill-founded.
    It considered that the Supreme Court applying Article 85 instead of Article 54 of the Civil Code in the
    case had not been a change in approach at cassation level but a clarification of a point of law.
    Indeed, it had simply accepted the argument of duress that had been made by K.K. and contested by
    Rustavi’s owners from the beginning to end of the proceedings. Moreover, both sides had been
    given equal opportunity to make written submissions and, on that basis, the Supreme Court had
    been fully capable of properly reviewing the lower courts’ interpretation of the relevant legal
    provisions. The principles of a fair hearing under Article 6 § 1, including equality of arms and
    adversarial nature of the proceedings, had not therefore been infringed.
    Nor could the Court find, contrary to what was alleged by Rustavi 2’s owners, any “manifest errors of
    assessment” in the reasons given by the Supreme Court for its judgment of March 2017.
    The relevant applicants’ complaints calling into question the outcome of the ownership dispute did
    not raise a prima facie issue under Article 1 Protocol No. 1 because that provision did not guarantee
    the right to a particular outcome in civil litigation. The ownership dispute could not therefore
    amount to an interference with their property rights.
    Because Article 1 Protocol No. 1 was manifestly ill-founded and Article 18 could never be relied on
    alone, it followed that the second to fourth applicants’ complaint about a State-led campaign against
    Rustavi 2 brought under Article 18 in conjunction with Article 1 Protocol No. 1 was also manifestly illfounded.
    The Court found, however, that the complaints about the judges deciding the ownership dispute had
    raised serious issues of facts and law which required an examination of the merits.
    It addressed each of the levels of jurisdiction separately and found that none of the judges had
    lacked either independence or impartiality.
    First, it examined the second to fourth applicants’ challenge to T.U., the judge appointed to examine
    the case at first instance. It found no substantiation for the allegation that K.K. had decided to
    include a copyright claim in his action that had clearly lacked merit so that he would be sure to have
    Judge T.U., who was specialised in intellectual property disputes, sitting in his case. The Court found
    that there had been two other judges specialising in intellectual property law at that judicial level
    and, in any case, Judge T.U. had been assigned according to the usual procedure, namely in
    alphabetical order.
    The allegation that criminal proceedings against the Judge T.U.’s mother for attacking her son-in-law
    had been revived to influence the judge was likewise unsubstantiated. The Court found that any
    delay in the proceedings against his mother could be explained by the fact that it was the
    5
    prosecuting authorities’ practice in such cases, involving a senior citizen in poor health accused of an
    offence which was not of a serious nature, to only bring charges after all attempts at reconciliation
    had failed.
    As concerned Facebook posts published by Judge T.U.’s wife about Rustavi 2 and its director, they
    had been negative but they did not comment on the eventual outcome of the ownership dispute,
    nor did they give the impression that his wife, who was the author of the posts, had been attempting
    to influence her husband or exploit his judicial position. Moreover, there was no evidence to show
    that the judge had actually approved of his wife’s personal opinions. On the contrary, the case file
    showed that Judge T.U. had sufficiently distanced himself from the opinions expressed by his wife,
    an everyday citizen who had every right to be politically and socially active, while adjudicating the
    case.
    Furthermore, the Court did not see anything to suggest that Judge T.U. had been unduly close to
    N.G., one of three judges who had adjudicated the case on appeal. There was nothing improper
    about both of those judges being founding members of the Union of Judges of Georgia, an
    association representing acting judges’ interests, or about the fact that they were still members of
    the association, together with some 50 other judges, at the time of the ownership dispute.
    Nor did the Court find anything untoward about the association’s statements in October 2015 in
    defence of the judiciary in general and Judge T.U. in particular following what it considered to be
    abusive public attacks by Rustavi 2’s Director General. In televised statements the Director General
    had notably referred to Judge T.U. as a “Sonder-judge” (which has a Nazi connotation) and had used
    such expressions as “soil will burn under the judge”, “illiterate”, “corrupt”, “puppet”, “pseudoservant of Themis”, “armed with an axe”, “for hire” and “scoundrel”. The Director General had not
    chosen to voice his criticism in a courtroom, although he had every possibility to do so, but via
    Rustavi 2’s powerful media, without even hiding his intention to provoke the judge and artificially
    create conditions for his recusal.
    Lastly, as concerned the cassation proceedings, the Court looked at allegations of impartiality against
    one of the judges, M.T., sitting on the bench of the Grand Chamber of the Supreme Court and
    against that court’s President.
    It noted that M.T. had made financial contributions to the new ruling party, the GDC, but found that
    that was not sufficient to disqualify her. It would normally be preferable for a judge to refrain from
    contributing to political parties or campaigns, however, she had contributed to the political party in
    question some years previously, at a time when she had been employed in the private sector.
    Furthermore, the ownership dispute over Rustavi 2 shares had concerned two private parties.
    Neither the GDC as a political party nor any State authority had been a party to the proceedings or
    had been related to the substance of the ownership dispute.
    The Court considered that the involvement of Rustavi 2’s Director General, when he had been a
    member of the High Council of Justice, in disciplinary proceedings against the President of the
    Supreme Court, which had resulted in her dismissal from her judicial office some years previously,
    was a serious matter which could raise an arguable claim about lack of impartiality. However, the
    Supreme Court had extensively addressed the relevant arguments of Rustavi 2’s owners, giving a
    thoroughly reasoned ruling which convincingly dissipated any fears in that regard. Furthermore,
    there was no evidence in the case file to show that the President of the Supreme Court had ever
    expressed any views at all about Rustavi 2, its director or the latter’s role in the disciplinary
    proceedings conducted against her a decade ago. In any event, it was difficult to see any long-lasting
    effects of her dismissal from her judicial post, given that she had subsequently risen to the position
    of the President of the highest judicial body in the country.
    When examining the challenges against those two Supreme Court judges, the Court bore in mind in
    particular that Rustavi 2’s owners had systematically introduced ill-founded recusal requests against
    6
    many different judges at all three levels of jurisdiction. Such actions could be considered an attempt
    to paralyse the administration of justice, and could even be indicative of the abusive nature of the
    motion for bias.
    The Court therefore found that there had been no violation of Article 6 § 1 as concerned the
    independence and impartiality of the judges who decided on the ownership dispute over the Rustavi
    2 television channel.

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