Communicated on 24 August 2015

FOURTH SECTION

Application no. 19419/12 Davit KHARADZE against Georgia lodged on 21 March 2012

STATEMENT OF FACTS

1. The applicant, Mr Davit Kharadze , is a Georgian national, who was born in 1969 and lives in Tbilisi . He is represented before the Court by Ms T. Mikeladze , a lawyer practising in Tbilisi .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant starting suffering from a mental disorder since 1987. In 1999 he was diagnosed with chronic p aranoid schizophrenia and was formally declared a handicapped person of the second category.

4. On 17 June 2005 Rustavi 2, a private television station with the countrywide coverage, broadcast, as part of its daily television police chronicles Patrol, a video report concerning an episode of purported cattle theft which had occurred earlier that day in the village of Gldani , near the town of Mtskheta . The report was provided to the Rustavi 2 Channel by the Ministry of the Interior; cameramen of the Ministry ’ s media unit had made the relevant recordings.

5. The video report was accompanied by two major written subtitles: “the fact of a cattle theft occurred in the village of Gldani ” and “the inhabitants of the Gldani village have arrested a cattle thief and notified thereof the local police patrol officers”. These written statements were followed by the images of the applicant who bore visible signs of ill ‑ treatment on his face and shirtless chest. Briefly interviewed by a reporter, the applicant stated that he did not commit a theft but had merely mistaken his neighbour ’ s cows for his owns. A following interview was made with a group of inhabitants of the village of Gldani who claimed that cattle thefts became regular in the village and that it was undoubtedly the applicant who was behind all those other crimes. One of the inhabitants acknowledged that he had restrained the applicant ’ s liberty and beaten him as a retribution for the fact of the theft. At the end of the report, a police patrol officer gave a brief interview: “We operatively went to the scene and discovered a tensed situation. We tried to calm everything down. The gathered people were beating this thief who had been caught red-handed. He appeared to be a cattle thief. We are now waiting for the anti-criminal police unit to arrive from Mtskheta ”.

6. By a prosecutorial resolution of 20 October 2005, the investigation into the fact of cattle theft was closed for the absence of a criminal offence. The main conclusion was that there had indeed been a similarity between the cows owned by the applicant and those which he, a person with a mental disorder, had mistakenly tried to herd home.

7. On 25 August 2006 a court declared the applicant a legally incapacitated person in view of his mental disorder and granted his brother, Mr Teimuraz Kharadze the power to represent the applicant in legal relations.

8. On 12 October 2006 the applicant ’ s brother requested the Rustavi 2 Channel to retract the untrue factual information which had been transmitted in the Patrol program on 17 June 2005 concerning his brother ’ s implication in a theft. The company left this request without any reaction.

9. On 19 October 2006 the applicant ’ s brother sued the Ministry of the Interior and the Rustavi 2 Channel under Article 18 of the Civil Code. The claimant requested that the respondents should provide public retraction of the false information that the applicant had committed a theft (paragraphs 3 and 4 of Article 18). In addition, each of the respondents should pay the victim 50,000 Georgian Laris (some 23,000 Euros at an exchange rate applicable at the material time) in non-pecuniary damage (paragraph 6 of Article 18).

10. After the first series of circulation of the case between the three levels of jurisdiction, by its judgment of 8 October 2009 the Supreme Court of Georgia finally terminated the dispute as regards the Rustavi 2 Channel by dismissing the applicant ’ s claim directed against that particular respondent. As to the civil responsibility of the Ministry of the Interior, the Supreme Court remitted the case for a fresh consideration by the lower courts.

11. Subsequent to that remittal, the Tbilisi City Court examined the applicant ’ s civil action against the Ministry of the Interior, which consisted in requests for retraction of untrue facts and payment of non-pecuniary damages, anew, and, by its judgment of 13 October 2010, ruled to dismiss this action for not having been lodged in accordance with relevant provisions of the Act of 24 May 2004 on Freedom of Speech and Expression, the lex specialis in the instant case. As regards the claim for non-pecuniary damages, the City Court, whilst acknowledging that the applicant ’ s presumption of innocence had been marred by the statements made during the Patrol program, stated that the claimant had failed to explain what kind of non-pecuniary harm had been caused to his brother.

12. An appeal of the applicant ’ s brother was dismissed by the Tbilisi Court of Appeals, after an examination on the merits, in its judgment of 23 December 2010. The appellate court stated that the civil action should rather be examined in the light of the Act on Freedom of Speech and Expression only. That being so , the court recalled th at according to Section 16 of the Act, a person cannot be held liable for defamation if he or she could not have known that the impugned information was of defamatory nature. Thus, since the police officer who stated during the television report that the applicant had committed a theft could not have known that in reality no theft had been committed at that time, the officer could not be held liable for having made a defamatory statement. On the other hand, the appellate court continued, due to the specificity of the television program Patrol, which was a police chronical, it should have been clear for any common observer that information divulged to the public within the context of that program represented preliminary suspicions about possible commission of criminal offences.

13. The appellate court also stated that, in any event, the applicant ’ s suit for defamation had been belated for having been lodged after the expiry of the relevant statutory time-limit of 100 days, as envisaged by Section 19 of the Act on Freedom of Speech and Expression.

14. Lastly, the appellate court stated that, even assuming that the case at hand could also be examined under Article 18 of Civil Code, no claim for non-pecuniary damage could be upheld given that the civil legislation envisaged for such an award only in the event of knowingly wrongful infliction of harm. However, reiterating its previous findings about the impossibility for the police officer in question to know at the time of the applicant ’ s arrest that the fact of his encroachment upon another person ’ s cattle did not qualify as a theft, the appellate court concluded that there was nothing knowingly wrongful in the officer ’ s interview.

15. The applicant ’ s brother then lodged a cassation claim against the Tbilisi Court of Appeals ’ judgment of 23 December 2010, arguing that his action should not have been examined within the scope of the Act on Freedom of Speech and Expression but under the relevant provisions of the Civil Code, as originally requested in the statement of claim itself. The applicant referred to Section 3 § 2 of the Act which stated that a State body could not possess the right to freedom of expression, which in its turn automatically entailed, in his view, the inapplicability of the Act with respect to one of the respondents, the Ministry of the Interior.

16. The cassation claim was rejected as inadmissible by the Supreme Court on 21 September 2011.

B. Relevant domestic law

17 . Article 18 of the Civil Code 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. If the damaging information had been disseminated through a mass media, a claimant is entitled to obtain retraction from in the same media. The aggrieved party (claimant) could also claim pecuniary and non-pecuniary damages, which he or she had sustained as a result of the dissemination of such information.

18 . Section 3 § 2 the Act of 24 May 2004 on Freedom of Speech and Expression provided that “everyone except for administrative agencies enjoy the right to freedom of expression”. Its Section 16 stated that “a person shall not be imposed a liability if he or she did not and could not have know n that he/she disseminated defamation.” Section 19 set a statutory limitation for bringing an action for defamation – 100 days after the claimant actually learnt or could have learnt of the existence of the defamatory information.

C. Recommendation of the Committee of Ministers

19. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (Adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers ’ Deputies) contains the following principle of particular interest to the present case:

Principle 8 - Protection of privacy in the context of on-going criminal proceedings

“ The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”

COMPLAINT

20. The applicant complains under Article 8 of the Convention that his right to respect for private life was infringed by the police television report prepared by the Ministry of the Interior.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?