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SECOND
SECTION
CASE OF GORELISHVILI v. GEORGIA
(Application
no. 12979/04)
JUDGMENT
STRASBOURG
5
June 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gorelishvili v. Georgia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12979/04) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Ms I. Gorelishvili, a Georgian
national, on 10 March 2004.
- The
applicant was represented by Mr L. Tchavtchavadze, a lawyer
practising in Georgia. The Georgian Government (“the
Government”) were represented by their Agent, Mr M. Kekenadze
of the Ministry of Justice.
- On
8 March 2006 the Court decided to give notice of the applicant's
complaint under Article 10 of the Convention concerning an alleged
breach of the applicant's freedom of expression as a journalist. On
the same date, the Court decided to apply Article 29 § 3
of the Convention and to examine the merits of the application at the
same time as its admissibility.
- The
applicant and the Government each filed observations on admissibility
and merits (Rule 54A of the Rules of Court).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Tbilisi. She was a journalist
at the material time.
- In July 2000, the applicant published an article in the
newspaper “Meridiani 44” (no. 75 (579), 3-5
July 2000). This article, entitled “The Head of the 'twofold'
Ministry does not know where and how much he has saved”, was a
continuation of a regular rubric which informed the public of the
financial situation of various political figures in the light of
their property declarations. The background to the rubric was the
problem of corruption in the public service.
- In the article, amongst other politicians and
government officials, Mr Givi Lominadze, a Member of Parliament
at the material time, was criticized for his declared assets.
- The article began on the first page of the newspaper
with a black and white photograph (12x11 cm) of the
parliamentarian's summer house. The following comment was underneath
the picture: “The summer house of the Abkhazia exile and Member
of Parliament, Mr Givi Lominadze, does not look that modest. So
what? The Georgians who have lost Abkhazia deserve to take a breather
somewhere ...”
- In the article the applicant cited the words of Grigol
Robakidze, a 20th century Georgian writer: “the
Government is a sacred phenomenon; there is no place for blackguards
there”. She further continued: “the main principle of the
relationship between the people and the Government – justice –
is breached today; we obey arbitrariness ... Let's have a look now at
the financial position of the officials suspected of arbitrariness.”
- The passage of the article describing Mr Lominadze's
assets in the light of his latest property declaration was placed on
the fifth page of the newspaper:
“... If Mr B.'s pride is his son, Mr Givi
Lominadze – Head of the Parliamentary Fraction “Abkhazia”
(although, he might soon forfeit this post) – is proud of his
son in law, Mr P., who is the Head of the President's
Security Service (we already spoke about the latter in the previous
edition). The son-in-law has probably given a hand to his
father in law, otherwise the latter could hardly have
finished for some 25 35,000 Laris [EUR
11,500-16,170]
the construction of the summer house (which, in fact, looks like a
palace) in the village of Tsitelsofeli on the banks of Aragvi River.
You all know how difficult the everyday life of the
refugees from Abkhazia is, and, as it seems, still missing the sea,
they want to be close to the water – Aragvi is undoubtedly a
gorgeous river.
Mr Lominadze has also managed to purchase an apartment
in Tbilisi for the price of GEL 40-45,000 [EUR 18,500 20,800]
(Mr Lominadze gives such approximate, “twofold”
prices everywhere). And, with due regard to the price of the
Tsitelsofeli summer house, then Mr Lominadze's Tbilisi apartment
should be a truly grandiose construction. Or, maybe Mr Lominadze
made a mistake and “could not correctly” assess the price
of his riverside summer house?!
In the list of his real property, Mr Lominadze has also
cited the house he inherited in the village of Senaki, valued at GEL
20,000 [EUR 9,240], and the family library, valued at GEL 10,000 [EUR
4,640]. Despite the fact that, last year, the parliamentarian's only
income was his salary amounting to GEL 6,300 [EUR 2,900] in
total, his savings amount to GEL 7,000 [EUR 3,200]. One can only
wonder whether Lominadze and people like him feed on air, without
ever spending salaries; how else could they manage to save so much?!”
- Mr Lominadze sued the applicant and the editor of the
newspaper for defamation. He claimed that the facts mentioned in the
article were untrue. They indirectly suggested that he had acquired
the summer house and the Tbilisi apartment since becoming a
parliamentarian in 1993, but in reality the origin of most of those
possessions dated back to the 1970 80s.
- On 23 January 2002 the Vake Saburtalo District
Court in Tbilisi allowed his claim and obliged the respondents to
publish a rectification, conceding that the previous publication had
been the result of a superficial research of the facts and only
reflected the journalist's subjective opinion. The court also ordered
each of the respondents to pay to the parliamentarian GEL 100
[EUR 46] for non-pecuniary damage and GEL 500 [EUR 230]
for costs and expenses.
- In its reasoning, the District Court acknowledged that
the facts exposed in the article with regard to the parliamentarian's
assets were correct, since they were based on the official data
submitted in the property declaration and were never disputed by the
plaintiff. Nonetheless, the court concluded that the structure of the
article, the epithets and artistic expressions were of such a
sarcastic and humiliating nature that they would necessarily arouse
in readers negative sentiments towards the parliamentarian. The court
shared the plaintiff's concern that the article implied that his
declared assets were of illegal origin. Since the applicant failed to
discharge, under Article 18 § 2 of the Civil Code, the burden of
proof by showing that she had not intended to accuse Mr Lominadze
of corruption, the District Court found her liable in defamation.
- On 19 February 2003 the Appeal Chamber of the
Tbilisi Regional Court quashed and replaced the judgment of
23 January 2002. The court reasoned that the journalist's
criticism was aimed at the private sphere of the parliamentarian's
life rather than the political sphere. It concluded that the
applicant had failed to bring proof of such statements
as “the son-in-law has probably given a hand to his
father-in-law, otherwise the latter could hardly have finished ...
the construction of the summer house ...” and “one can
only wonder whether Lominadze and people like him feed on air,
without ever spending salaries; how else could they manage to save so
much?!”
- The Regional Court ordered the journalist and the
newspaper to retract those statements as untrue and to pay jointly
GEL 100 [EUR 46] in non-pecuniary damages. The President of the
Appeal Chamber expressed a dissenting opinion, mostly based on the
principles of the case-law of the European Court of Human Rights.
- Subsequent to the applicant's cassation appeal, on
12 September 2003 the Supreme Court quashed the judgment of the
Regional Court and decided the case anew.
- The Supreme Court recognised that the margin of
criticism with regard to political figures was wider than that
regarding other persons. However, considering that she had failed to
prove the truthfulness of her suggestion that the impugned property
had originated during the parliamentarian's political life in the
1990s, the court found, on the basis of Article 18 of the Civil
Code, that the applicant's criticism was unfounded and therefore
defamatory. It noted that she had indirectly called the
parliamentarian a “blackguard” and had gratuitously
accused him of “arbitrariness”.
- The Supreme Court further stated that, “in view
of journalists' high degree of responsibility within society, each
and every one of their judgments should be based on well-investigated
and well-examined facts and not on unfounded assumptions”, as
in the applicant's case. The court concluded that the applicant had
been negligent when writing about the parliamentarian.
- The Supreme Court ordered the applicant and the editor
to pay jointly GEL 100 [EUR 46] in non-pecuniary damages.
The applicant was further ordered to publish a rectification,
specifically retracting the two phrases - “the son-in-law has
probably given a hand to his father-in-law, otherwise the latter
could hardly have finished ... the construction of the summer house
...” and “one can only wonder whether Lominadze and
people like him feed on air, without ever spending salaries; how else
could they manage to save so much?!” – as untrue
statements.
- According to the applicant, the final judgment of
12 September 2003 was notified to her outside the time-limit
prescribed by law and did not bear the stamp or signature of the
Registrar of the Supreme Court.
B. Relevant domestic law
21. The Constitution
Article
24 guarantees freedom of thought and expression, together with the
freedom of the mass media.
22. The Civil Code, as it stood at the material time
Article 18
provided that an individual was entitled to request in court a
rectification of the “information” (cnobebi),
which was damaging to his or her honour, dignity or professional
reputation, unless the person who had disseminated that information
could prove its truthfulness. The aggrieved
party could also claim pecuniary and non-pecuniary damages,
which he or she had sustained as a result of the dissemination of
such information.
23. The Act of 17 October 1997 on the Corruption
and Conflict of Interests in Public Service,
as it stood at the material time
Section 1 stated that the aim of the Act was to fight corruption in
the public service.
Pursuant to section 14, a public official was obliged to file
property and financial declarations within a month of taking up
office. The declarations had to be regularly submitted (once a year)
during his or her public service, as well as upon resignation or
dismissal.
Pursuant to sections 15 and 16, the property and financial
declarations were to provide comprehensive information about all the
public official's immovable and movable assets, securities, savings
deposits, bank accounts, currency, participation in business
activities, performance of any remunerated work apart from business
activities, contractual engagements, gifts and the existence of other
income exceeding GEL 1,500 [EUR 693].
Under section 17 § 1, in case the value of a declared asset
could not be established without an expert assessment, an approximate
value was to be indicated. Section 19 § 1 stated that the
official's property and financial declarations, except for certain
confidential parts, were public documents.
24. The Press and Media Act of 10 August 1991, in force
at the material time
Pursuant
to section 24 § 2, a journalist was responsible for verifying
the correctness of information before publishing it.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the defamation proceedings had
unjustifiably restricted her journalistic freedom in violation of
Article 10 of the Convention, which insofar as relevant reads as
follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society ... for the
protection of the reputation or rights of others ...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. The Court further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government did not dispute the fact that there was an interference
with the applicant's freedom of expression. However, they submitted
that the applicant had not acted, as a journalist, in “good
faith”. Insofar as the property declaration did not disclose
how and when exactly the impugned assets had been acquired, the
applicant, pursuant to section 24 § 2 of the Press and
Media Act, should have investigated the issue further before
imprudently implying in her article that the plaintiff had obtained
the summer house and Tbilisi apartment corruptly during his political
life. The Government stated that, contrary to the aim of the
newspaper's rubric, the applicant's purpose was not to raise a public
debate but to undermine Mr Lominadze's reputation.
- The
Government submitted a copy of the parliamentarian's property
declaration. It disclosed the same kind and value of the assets as
described by the applicant in her article. Apart from the “twofold”
prices, criticised by the applicant, the declaration did not contain
any details about the dates of acquisition or the origin of the
possessions.
- The
Government also noted that the article had been published when no
active public debate was pending. Consequently, as she did not face a
risk that her publication might lose its news worthiness, the
applicant had had ample time to undertake an investigation. Finally,
the Government submitted that the light penalty imposed on the
applicant by the Supreme Court was not disproportionate, in breach of
Article 10 § 2 of the Convention.
- The
applicant disagreed with the above arguments and maintained that she
had a right to criticise the parliamentarian for what was, in her
opinion, the defective manner in which the latter had declared his
assets. Moreover, the object of her article was a person who had for
years represented the legislative branch of the Abkhazian Government
in exile. Given the high political sensitivity of any issue related
to the breakaway region, her publication could not be said to have
been devoid of news value. The targeted politician was under an
obligation to show, as a public figure, more tolerance towards her
criticism.
2. The Court's assessment
- It
is not disputed between the parties that the Supreme Court judgment
of 12 September 2003, being the final instance in the defamation
proceedings, constituted an “interference” with the
applicant's rights under Article 10 § 1 of the
Convention. The Court notes that the interference was “prescribed
by law” – Article 18 of the Civil Code – and
pursued the legitimate aim of protecting the reputation or rights of
others. This point was also not disputed by the parties.
Consequently, the Court's remaining task is to determine
whether the interference was “necessary in a democratic
society”.
- As
a matter of general principle, the “necessity” for any
restriction on freedom of expression must be convincingly
established. It is in the first place for the national authorities to
assess whether there is a “pressing social need” for the
restriction and, in making their assessment, they enjoy a certain
margin of appreciation. However, in cases concerning the media, the
national margin of appreciation is circumscribed by the interests of
a democratic society in ensuring and maintaining a free press.
Similarly, that interest will weigh heavily in the balance in
determining, as must be done under paragraph 2 of Article 10, whether
the restriction was proportionate to the legitimate aim pursued
(see Fressoz and Roire v. France [GC], no. 29183/95,
§ 45, ECHR 1999 I).
- In
exercising its supervisory function, the Court does not take the
place of the national authorities, but rather reviews under
Article 10 the decisions which they have taken pursuant to their
power of appreciation. In so doing, the Court must look at the
“interference” complained of in the light of the case as
a whole and determine whether the reasons adduced by the national
authorities to justify it were “relevant and sufficient”
and whether they based their decisions on an acceptable assessment of
the relevant facts (see Grinberg v. Russia, no. 23472/03,
§§ 26 27, 21 July 2005; Vogt v. Germany,
judgment of 26 September 1995, Series A no. 323, pp. 25 26,
§ 52). Moreover, the Court will take the following elements
into account: the position of the parties to the defamation
proceedings, the subject matter of the impugned publication and the
qualification of the contested statements by the domestic courts (see
Jerusalem v. Austria, no. 26958/95, § 35, ECHR
2001 II).
- As
regards the applicant's position as a journalist, the Court
reiterates that the press fulfils an essential function in a
democratic society. Although it must not overstep certain bounds,
particularly as regards the reputation and rights of others, its duty
is nevertheless to impart – in a manner consistent with its
obligations and responsibilities – information and ideas on all
matters of public interest (see De Haes and Gijsels v. Belgium,
judgment of 24 February 1997, Reports of Judgments and
Decisions 1997 I, § 37; Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 59,
ECHR 1999 III). Moreover, journalistic freedom covers possible
recourse to a degree of exaggeration, or even provocation (see Prager
and Oberschlick v. Austria (no. 1), judgment
of 26 April 1995, Series A no. 313, § 38).
- As
to Mr Lominadze, the Court observes that he was an exiled
parliamentarian from the Abkhazian legislature at the material time.
It is to be recalled, in this regard, that the limits of acceptable
criticism are wider as regards a politician, than as regards a
private individual. Unlike the latter, the former inevitably and
knowingly lays himself or herself open to close scrutiny of every
word and deed by journalists and the public at large. Therefore, such
persons must display a greater degree of tolerance (see, for example,
Incal v. Turkey, judgment of 9 June 1998,
Reports 1998 IV, p. 1567, § 54).
- The
subject matter of the impugned publication was the applicant's
assessment of Mr Lominadze's financial situation in the light of
his property declaration. None of the parts of that document
criticized by the applicant was confidential and its publication was
not prohibited (cf., a contrario, Fressoz and Roire,
cited above, §§ 52 and 53). It is to be noted that the
applicant's article contributed to a regular rubric which informed
readers of the material welfare of different political figures. The
specific concern with this particular parliamentarian's assets was
heightened by his association with the sensitive “Abkhazian
problem” (paragraphs 8, 10 and 30 above). Also taking also
into account the problem of corruption in the public service at the
material time (paragraphs 6 and 9 above) – a fact not
disputed by the Government – the Court has no doubt that the
applicant's freedom of expression was exercised in the context of a
matter of important public interest (c.f., a contrario,
Katamadze v. Georgia (dec.), no. 69857/01,
14 February 2006). Consequently, an interference with the
exercise of press freedom cannot be compatible with Article 10 of the
Convention unless it is justified by another overriding requirement
of public interest (Fressoz and Roire, cited above,
§ 51).
- The
Court further observes that the scope of the interference imposed by
the Supreme Court judgment of 12 September 2003 extended not to
the publication in its entirety but solely to the two following
phrases: “the son in law has probably given a hand to
his father-in-law [the Parliamentarian], otherwise the latter could
hardly have finished ... the construction of the summer house ...”
and “one can only wonder whether Lominadze and people like him
feed on air, without ever spending salaries; how else could they
manage to save so much?!”.
- The
Supreme Court found these phrases defamatory since they were, in its
view, untrue. Thus, without examining the question whether they could
be considered to be value-judgments (see, a contrario,
Katamadze (dec.), cited above), the Supreme Court concluded
that they were statements of fact, since only the latter are
susceptible of proof (see Grinberg, cited above, § 30).
The state of the Georgian law on defamation at the material time led
to this incomplete analysis. Notably, Article 18 of the Civil
Code made no distinction between value-judgments and statements of
fact, referring uniformly to “information” (cnobebi),
and required that the truth of any such “information” 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 of the Convention (see, Zakharov v. Russia,
no. 14881/03, §§ 29 and 30, 5 October 2006;
Karman v. Russia, no. 29372/02, §§ 42
and 43, 14 December 2006).
- The
Court considers that the expressions condemned by the Supreme Court
in the present case amounted to an opinion, albeit expressed
provocatively, as they represented the applicant's subjective
assessment of the credibility of the parliamentarian's property
declaration. The burden of proof in respect of such an assessment is
obviously impossible to satisfy.
- Sarcastic
and cynical as the applicant's phrases were, in the Court's view,
they did not constitute a gratuitous personal attack upon the
parliamentarian (cf., a contrario, Katamadze v. Georgia
(dec.), no. 69857/01, 14 February 2006), since they were not
devoid of any factual basis (De Haes et Gijsels, cited above,
§ 47), e.g. the kind and value of the parliamentarian's
declared property, his salary level, his kinship with the Head of the
President's Security Service, etc. In other words, there was a
sufficiently close link between the applicant's contested phrases and
the circumstances of the case (see Feldek v. Slovakia,
no. 29032/95, § 86, ECHR 2001 VIII).
- The
Court is not convinced by the argument that the applicant was under a
duty to enquire when and how exactly the impugned property had been
acquired by the parliamentarian. It notes in this regard that, as
acknowledged by the Government, no such information was contained in
Mr Lominadze's property declaration. The Court further observes
that the applicant's article described the kind and value of the
assets exactly as disclosed by the parliamentarian's declaration
(paragraph 28 above). Consequently, whilst the applicant could
not be said to have either knowingly distorted or recklessly
disregarded the publicly available information about the origin of
the parliamentarian's assets, the Court finds that she, as a
journalist, was entitled, when contributing to the public debate on a
matter of legitimate concern, to rely on the contents of the property
declaration - an official document - without having to undertake
independent research. To hold otherwise would undermine the vital
role of public-watchdog which the press fulfils in a democratic
society (see Colombani and Others v. France,
no. 51279/99, § 65, ECHR 2002 V).
- In
the light of the above, the Court concludes that the standards
applied by the Supreme Court were not compatible with the principles
embodied in Article 10, since it did not adduce relevant and
sufficient reasons justifying the interference with the applicant's
right to impart information and ideas on matters of public concern.
Therefore, the Court concludes that the interference was not
necessary in a democratic society.
- There
has accordingly been a violation of Article 10 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The applicant complained of a violation of 6 § 1
of the Convention on account of the Supreme Court's failure to
communicate to her a reasoned copy of the judgment of 12 September
2003 in a timely fashion. She contended that, as a result, she almost
missed the six months' time limit for applying to the Court.
The relevant provisions of Article 6 § 1 read as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- However,
the Court finds that the case file does not disclose any appearance
of violation of Article 6 § 1 of the Convention during the
domestic proceedings assessed as a whole (see Miailhe v. France
(no. 2), judgment of 26 September 1996, Reports
1996 IV, p. 1338, § 43). This part of the
application is therefore manifestly ill-founded and must be rejected
in accordance with Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (“EUR”) in respect of
non pecuniary damage. No claim for pecuniary damage was made.
- The
Government submitted that the applicant's claim was unsubstantiated
and excessive.
- The
Court considers that the applicant must have suffered some
non pecuniary damage for which the finding of a violation would
not constitute sufficient compensation. Making its assessment on an
equitable basis, the Court awards the applicant EUR 1,500 under
this head.
B. Costs and expenses
- The
applicant also claimed EUR 5,800 for the costs and expenses incurred
before the Court, without submitting any document in support.
- The
Government considered that the claimed amount was unsubstantiated and
excessive.
- The Court observes that the applicant failed to submit
itemised particulars of this claim or any relevant supporting
documents, although she was invited to do so. She did not therefore
comply with the requirements set out in Rule 60
§ 2 of the Rules of Court. In these circumstances, the
Court makes no award under this head (see, among many other
authorities, Boulougouras v. Greece, no. 66294/01, § 34,
27 May 2004).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 10 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 1,500 (one thousand five hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable, which sums
are to be converted into the currency of the respondent State at the
rate applicable on the date of settlement:
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points.
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 June 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
S. Dollé F. Tulkens
Registrar President
