Information Note on the Court’s case-law 231

July 2019

Rustavi 2 Broadcasting Company Ltd and Others v. Georgia - 16812/17

Judgment 18.7.2019 [Section V]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Alleged bias of judges at three levels of jurisdiction in dispute regarding ownership of a television station: no violation

Facts – The applicants, the former owners of a telev ision station, Rustavi 2, complained that the examination of an ownership dispute regarding the station had not been conducted by an independent and impartial court either at the first, appellate or cassation levels of jurisdiction.

Law – Article 6 § 1

(a ) Independence and impartiality of the first level of jurisdiction – The applicants had asserted that, being aware that the first instance judge had been the only civil judge specialising in intellectual-property disputes on duty at the City Court, the for mer owner, who had initiated the ownership proceedings, had artificially included in his action a clearly unmeritorious copyright claim. On the facts of the case, the Court could not see indices of the type of judicial “forum shopping” alleged by the appli cants. The documents available suggested that two other judges with such a specialisation had also been available. The judge himself had confirmed that the decision on allocation of the ownership dispute had been made, in accordance with the relevant legal provisions, in alphabetical order. The applicants had been unable to refute that credible explanation and had not provided any evidence in support of an alternative version as to how the case might have been assigned to him. Those complaints were unsubsta ntiated.

The judge’s wife had published a number of posts on Facebook conveying negative views of Rustavi 2 as a television channel and to its Director General, personally. She had not, however, commented in any manner on the eventual outcome of the on-going owners hip dispute. None of the Facebook posts could be understood as creating an impression that the judge’s spouse had been attempting to exploit her husband’s judicial position or influence him. According to the Bangalore Principles of Judicial Conduct , a judge should not allow his or her family, social or other relationships to influence his or her judicial conduct. The requirement of judicial impartiality could not prevent a judge’s family expressing their views on issues affecting society. However, it could not be excluded that the activities of close family members might, in certain circumstances, adversely affect the public’s perception of a given judge’s impa rtiality. In the case at hand, the applicants had not presented any evidence that the judge had been influenced by his spouse’s social networking statements while adjudicating the case. In his decision dismissing the applicants’ request for him to recuse h imself, the judge had emphasised that his spouse had never agreed the contents of her Facebook posts with him and that he had not even been aware of the existence of those posts. From the standpoint of an objective observer, the judge had sufficiently dist anced himself from the opinions which his wife had published on Facebook.

The Court also dismissed the applicants’ argument that the judge might have been influenced by criminal proceedings brought against his mother. Both the prosecution authority at the domestic level and the Government in the Convention proceedings had provided a sound explanation in respect of the alleged suspicious circumstances relied upon by the applicants in support of that argument. Finally, the Court dismissed the applicants’ comp laints that the various procedural decisions delivered by the judge and as well as the speed with which the case had been examined suggested that he had been biased against them. A series of procedural decisions unfavourable to one party could not be seize d upon by that party as a valid proof of judicial bias.

A violation of Article 6 § 1 could not be grounded on the alleged lack of independence or impartiality of a decision-making tribunal if the decision taken had been subject to subsequent oversight by a judicial body that had had full jurisdiction and ensure d respect for the guarantees laid down in that provision. The applicants had had access to the Court of Appeal which had not only ensured a full re-examination of the merits of the ownership dispute but also addressed the applicants’ challenge to the judge ’s independence and impartiality.

Conclusion : no violation (six votes to one).

(b) Independence and impartiality of the Court of Appeal – The applicants had challenged the independence and impartiality of the Court of Appeal on account of the alleged prox imity of one of the three judges on the appellate bench to the first instance judge. These allegations were unsubstantiated. There was nothing improper in the fact that both judges had been founding members, together with sixteen other judges, of the Union of Judges of Georgia, an association representing acting judges’ interests.

As regards the issuance of statements by the association of judges, there was nothing improper about that occurrence either. The Director General of Rustavi 2 had made abusive pu blic attacks on the first-instance judge intentionally, with the aim of provoking the judge and obtaining grounds for requesting the latter’s recusal. There was nothing unfitting in the judicial association’s decision to issue public statements in defence of the judiciary in general and the first-instance judge in particular, especially since the latter had been precluded himself from replying by a duty of discretion. The statements made had been civil and balanced.

Conclusion : no violation (unanimously).

( c) Independence and impartiality of the Supreme Court – The Court dismissed as unconvincing the applicants’ complaint that one of the judges should have stepped down because she had made financial contributions to a political party some years previously. T he ownership dispute over Rustavi 2 shares concerned two private parties. Neither the political party in question nor any State authority had been a party to the proceedings or had been related to the substance of the case before the Court of Appeal. The j udge had contributed to the political party in question some years previously, at a time when she had been employed in the private sector. The applicants had not been able to submit to the Court any other fact suggestive of the judge’s involvement in any p artisan political activity during her term of office.

The fact that an applicant had challenged for bias all or majority of the judges of the various levels of jurisdiction involved in the examination of his or her case could, under certain circumstances, be considered as an attempt to incapacitate the administration of justice and was therefore indicative of the abusive nature of the motion for bias. Requests for recusal of domestic judges should not be aimed at paralysing the defendant State’s legal syste m and that aspect bore special importance where courts of last instance were concerned and where such requests could not, therefore, be decided upon by the appeal court.

As regards the President of the Supreme Court, the applicants had claimed that she mig ht have had a personal bias against the Director General of Rustavi 2 because the latter had played a role, in his former capacity as a member of the High Council of Justice, in disciplinary proceedings against her eleven years previously. Personal animosi ty against a party had normally to be treated as a compelling reason for disqualification as judges were required to act without ill-will. The facts referred to by the applicants raised an arguable claim about lack of impartiality. A set of disciplinary pr oceedings leading to dismissal was a serious matter which, in principle, could have a significant effect on the private and professional life of the person concerned. With that mind, the Court considered that the enlarged bench of the Supreme Court, the bo dy seized with the relevant request for recusal of its President, had had to subject the request to a serious scrutiny. In the circumstances when the applicants had been systematically introducing ill-founded recusal requests against many different judges of all three levels of jurisdiction and when the attacks broadcast by Rustavi 2 against some of the judges involved in the case had been sustained, the Court considered that the Supreme Court’s well-reasoned decision to maintain the President had not, give n the circumstances of the case and the elements relied on when seeking her recusal, been unjustified.

Lastly, the Court also attached significance to the fact that the President was only one judge of the enlarged bench of the Supreme Court, composed of ni ne judges, that had examined the ownership dispute. That being so, the Court was of the opinion that, from the standpoint of an objective observer, the whole of the enlarged bench could not be said to have been tainted by the applicants’ challenge to the P resident of the Supreme Court, especially when that judicial formation decided on the case by unanimous vote.

Conclusion : no violation (six votes to one).

(Compare Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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