Published: 2 Oct 2019 | By Tom Kiernan
Rustavi 2 Broadcasting Company Ltd & Others v Georgia
Case No.: 16812/17
Judgment date: 18 July 2019
The applications were brought by two companies (the first and second applicants) and two individuals (the third and fourth applicants, both former owners of the first applicant the privately owned opposition television channel, Rustavi 2, and current owners of the second applicant, the channel TV Sakartvelo).
The applicants alleged that from October 2012 to August 2015, the newly elected government of Georgia led an orchestrated and aggressive media campaign concerning the legality of the second to fourth applicants’ ownership of the first applicant. The applicants asserted that this campaign culminated in a former shareholder of the first applicant, acting under duress from the government, to issue proceedings against the second to fourth applicants. The purpose of the litigation was for the former shareholder to recover their stake in the first applicant, as well as receive compensation for loss of income.
At first instance, the Tbilisi City Court granted interim freezing injunctions against various assets of the first applicant. The judge also ruled in favour of the former shareholder and stripped the second to fourth applicants of their shares in the first applicant. These decisions were upheld by the Tbilisi Court of Appeal (on 10.6.16) and the Supreme Court (on 2.3.17).
On 3.3.17, the ECtHR granted the applicants’ request for interim measures (Rule 39) ordering that enforcement of the Supreme Court decision should be suspended and that the authorities should abstain from interfering with the applicant company’s editorial policy in any manner. The measure was discontinued when judgment was given.
The majority of the applicants’ claims (under Arts. 6(1), 10 and 18 and Art. 1 of Protocol 1) were deemed inadmissible (Art. 35), as being out of time in accordance with the 6 month rule, incompatible ratione personae, manifestly ill-founded, for non-exhaustion of domestic remedies, as “fourth instance” or because the applicants were essentially asking the Court to become a finder of fact.
The Court declared admissible the second to fourth applicants’ complaints regarding the independence and impartiality of four domestic judges involved in the examination of the ownership dispute, but found no violation of Art. 6 (1) (impartial and independent tribunal).
The Court found that the first instance judge had been “selected” in alphabetical order as domestic law required and the applicants were unable to provide a credible alternative explanation as to how he was assigned. In addition, the Court held that there was no evidence that the judge’s wife’s posts on Facebook had influenced his decision making. The Court found no substantiated reason to infer that one of the Court of Appeal judges’ connections to the first instance judge would result in judicial bias against the applicants. Further, the Union of Judges was entitled to pass comment where it appeared that the applicants had attempted to stop the administration of justice through recusal applications. Finally, the passage of time between the President of the Supreme Court’s prior dismissal and the present case meant the concerns over bias were ill-founded. Further, the President had been justified to refuse to recuse herself where the applicants had previously attempted to recuse judges at every stage of the proceedings.
Judicial impartiality is typically determined on the basis of (i) a subjective test concerning the behaviour of the particular tribunal accused and (ii) an objective test which establishes whether the tribunal has offered sufficient guarantees to dismiss any legitimate doubt regarding bias. The failure of either one of these tests will result in a violation of Art. 6 (1).
In contrast with Micallef v Malta, No. 17/056/06 15.10.09, and as previously seen in Morice v France [GC], No. 29369/10, 23.04.15, the majority’s approach to an independent and impartial tribunal focuses primarily on the subjective test. Notwithstanding the presence of several factors which would likely cause an objective bystander to question the tribunal’s impartiality, the Court’s decision turned on the lack of evidence supplied by the applicants to indicate bias was actually present. In short, the Court found that the domestic court’s reasons were judicially sound despite the presence of these factors. This appears to conflict with the principle established in Micallef, that a legitimate reason to fear a lack of impartiality on behalf of a judge should result in that judge withdrawing from the case.
Judge De Gaetano disagreed with the Court’s finding of no violation of Art. 6 (1) in relation to the first instance judge and the Supreme Court President. In his dissenting opinion, he found that the Court had conflated the subjective and objective tests of impartiality, that the City Court’s judge’s inability to properly distance himself from his wife’s comments on Facebook regarding the first applicant meant that an objective observer would question his impartiality and that the President could appear, in the eyes of a reasonable observer, ill-disposed to the applicants.