PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I cannot subscribe to points 3 and 5 of the operative part of the judgment. In my view, there was a violation of Article 6 § 1 of the Convention in so far as Judge T.U. (the single-judge composition of the Tbilisi City Court; see paragraph 334 of the judgment) and the President of the Supreme Court (who was sitting on the bench of the last-instance court; see paragraph 354 of the judgment) were concerned.

2. I have no issue with the general principles as to the objective test of impartiality, as spelled out in paragraph 332 of the judgment. As a career judge I set great store by appearances, not in the negative sense of course ( colorem habet, substantiam vero nullam ) but in the sense that appearances are of importance for the proper administration of justice, and in some cases more than in others such appearances must be given considerable weight when assessing issues of objective impartiality. The case of Rustavi 2 before the domestic courts was a very high-profile case attracting considerable media coverage, a case with political overtones and undercurrents – indeed, it was not just a case but the case for many months in Georgia. For this reason appearances were crucial.

3. While there is no doubt that, in general, members of a judge ’ s family are free to be politically and socially active, as well as free to express their views on controversial issues affecting society, a judge must constantly bear in mind the possibility that, in some proceedings, such activities of close family members may adversely affect the public perception of his or her impartiality. This is also conceded by the majority in paragraph 344 of the judgment. But then the majority slide from the objective to the subjective test by stating that the second to fourth applicants “have not presented any evidence that Judge T.U. was influenced by his spouse ’ s social networking statements while adjudicating the case”. The majority go on to say that “there is no proof in the case file that the judge ever discussed the ownership dispute over Rustavi 2 shares with his spouse either privately or in public”. Did the majority expect evidence of pillow talk between the judge and his wife? Or surreptitious recordings of conversations over dinner in a public restaurant? The majority then go on to say that Judge T.U., in his decision of 19 October 2015, stated 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” (clearly a reference to paragraph 104 of the judgment). On the basis of those considerations alone, the majority were of the view that Judge T.U. had sufficiently distanced himself from his wife ’ s views as expressed on Facebook.

4. I beg to differ. Here we are dealing with objective impartiality, as well as dealing with possibly the most sensitive case of the decade before the Georgian courts. Judge T.U. ’ s cursory, almost dismissive, statement that he was not aware of his wife ’ s Facebook posts at the time they were published (because, evidently, later he was aware of them) could not, by and of itself, dismiss from the mind of a reasonable lay observer the suggestion that he and his wife had aired the ownership dispute in their family discussions. To my mind, Judge T.U. did not sufficiently distance himself from his wife ’ s opinions, either by denouncing the Facebook posts as inappropriate or, at least, by indicating that he and his wife had had a “Chinese wall” in their household, that is to say, a deliberately installed ethical barrier that prevented communication (in this case between the spouses) on matters relating to the former ’ s judicial functions. The judge merely referred to his wife ’ s freedom of expression, implicitly suggesting that he himself did not see anything inappropriate in the content of her remarks. Moreover, to compound the problem of perceptions, in his decision of 19 October 2015 he even went on the offensive by saying that the Director General of Rustavi 2, N.Gv., had orchestrated the public campaign against him (see paragraph 106 of the judgment). From this standpoint alone, Judge T.U. could be readily associated by a reasonable observer with his wife ’ s opinions published on Facebook.

5. But there is more. The majority did not deem it necessary to examine in detail the character of the Facebook posts in question to ascertain their impact on a fair-minded observer in this highly delicate case. The Facebook posts related either to Rustavi 2 as a television channel or to its Director General, N.Gv., personally. Neither of these two represented an actual party to the ownership dispute; however, it was reasonable to look, from the perspective of a lay observer, at both the first applicant – the television channel Rustavi 2 – and the owners of the first applicant – the second to fourth applicants – as a single whole sharing identical goals in the judicial saga over Rustavi 2 which was unfolding before the domestic courts. Indeed, both at the domestic level and before the Court, the owners of the television company publicly expressed their fears for the channel ’ s editorial independence, whilst the channel itself fought tooth and nail, alongside its corporate interests, for the owners ’ pecuniary rights. In such circumstances, when the publicly declared interests of the television channel and its owners coincided, any invective coming from a close family member of the judge, to wit his wife, could only be perceived by the public as an indication of ill-will towards the owners of the channel – that is, towards the second to fourth applicants.

6. The first Facebook post published by Judge T.U. ’ s wife on 7 July 2015 was rather anodyne. It conveyed her views on a reality television music competition broadcast by Rustavi 2, with her criticism of the members of the jury, rather than of the channel itself. However, the second post, published on 13 August 2015, was quite explicit: in it she compared Rustavi 2 with a Georgian literary character, Arkipo Seturi, who is an artistic image for a type of “Big Brother” totalitarian ruler. A fair-minded and properly informed observer could not in this instance escape the conclusion that the judge ’ s wife held utterly negative views (of a “political” character) on Rustavi 2. As regards the third Facebook post, published by her on 2 October 2015 (and therefore when her husband had not yet delivered his decision of 19 October on the recusal issue, much less the judgment of 3 November 2015 on the merits), whilst the comments she appended to it can be said to constitute a mere personal attack on N.Gv., and were therefore not directly associable with the television channel itself, what I find extremely troubling is the origin of that post. For the purposes of advancing her negative and satirical views on N.Gv. on Facebook, the judge ’ s wife shared a status update from a “fun” page called “Property-frozen Rustavi 2”, and by doing so she either inadvertently or deliberately referred to the injunction ruling issued by her husband on 5 August 2015. For me – as, I am sure, for any reasonable observer even if bereft of the experience of being a career judge – the conduct of the judge ’ s wife displayed all the signs of satisfaction that came from her husband ’ s decision to freeze Rustavi 2 ’ s assets in the course of the examination of the ownership dispute. By publishing the Facebook posts on 13 August and 2 October 2015, Judge T.U. ’ s wife expressed in a public forum her negative opinion of Rustavi 2 ’ s editorial policy and further displayed signs of Schadenfreude regarding her husband ’ s decision to freeze the company ’ s assets. From the standpoint of a reasonable, fair-minded and informed observer, such conduct on the part of the judge ’ s close family member could not but tarnish T.U. ’ s capacity to examine the ownership dispute without perceived bias against Rustavi 2 and its owners (the second to fourth applicants). The Tbilisi Court of Appeal cavalierly dismissed the overall picture conveyed by these posts and its implications for the issue of objective impartiality.

7. Which brings me to the Tbilisi Court of Appeal. In paragraph 345 of the judgment, the majority rely also on Helle v. Finland (19 December 1997, § 46, Reports of Judgments and Decisions 1997-VIII) to dismiss the complaint of a violation of Article 6 § 1 on the ground of Judge T.U. ’ s wife ’ s Facebook posts. Although it is true that a violation of Article 6 § 1 of the Convention cannot be grounded on the alleged lack of independence or impartiality of a decision-making tribunal if the decision taken was subject to subsequent oversight by a judicial body that has full jurisdiction and ensures respect for the guarantees laid down in that provision, in the circumstances of the instant case this principle is inapplicable. Despite the fact that the applicants had, notionally at least, further access to the Tbilisi Court of Appeal, which indeed had full jurisdiction to assess matters of fact and law, this appellate court could not redress the breach of the impartiality requirement at the first-instance level, for two reasons: firstly, the independence and impartiality of the appellate court itself was also intensely contested by the applicants; and, secondly and more critically, the Tbilisi Court of Appeal, contrary to what the majority hold in paragraph 345, failed to ensure a sufficient examination of the applicants ’ appeal against Judge T.U. ’ s decision of 19 October 2015 not to withdraw from the case (see paragraph 147 of the judgment and compare with Editorial Board of Grivna Newspaper v. Ukraine , no. 41214/08, § 68, 16 April 2019, with further references therein). To say that the Court of Appeal “addressed, albeit not in the same detailed manner as was subsequently done by the Supreme Court”, the recusal issue is, with all due respect, not factually correct as regards the appellate court.

8. As already indicated, I also disagree with the majority ’ s view regarding their finding of no violation of Article 6 § 1 because of the composition of the Grand Chamber of the Supreme Court. My disagreement, however, is limited to the presence of the President of the Supreme Court, and not because of the presence of Judge M.T. The majority dismiss this complaint basically for four reasons (see paragraphs 361 to 363 of the judgment): (1) the second to fourth applicants have not presented any information to show that the President of the Supreme Court held negative attitudes with regard to N.Gv.; (2) these applicants had systematically lodged “ill-founded recusal requests” against several judges; (3) the passage of time (from 2006, when the said President had been dismissed from her judicial post following disciplinary proceedings brought by and conducted against her by N.Gv. when he had been a member of the High Council of Justice (see paragraph 156) to 2017, when the composition of the Grand Chamber of the Supreme Court was announced (see paragraph 161)); and (4) the President was only one judge out of several in the enlarged bench of the Grand Chamber.

9. As regards the first of these four reasons, here again the majority drift – whether inadvertently or deliberately is not at all clear – from objective to subjective impartiality. As to the second reason (it is not clear whether by the adjective “ill-founded”, with reference to the recusal requests, the majority meant requests which were an abuse of process or requests which turned out to be simply unjustified – not every unjustified request is an abuse of process), this is tantamount to saying falsus in uno, falsus in omnibus – a common-law principle once applied in the assessment of the credibility of witnesses, which has been ditched in most jurisdictions. The majority then endorse, and consider to be “well-reasoned”, the Supreme Court ’ s decision (see paragraph 162 of the judgment) dismissing the challenge to the President. Even a cursory examination of this decision shows that the Supreme Court approached the issue only from the subjective limb of impartiality, omitting entirely to examine the objective limb. Regarding the passage of time, the majority find it “difficult, from the standpoint of an objective observer, to see any long-lasting effects of the professional blow of the past”. I find this (third) reason, to say the least, extraordinary. From my experience – always as a career judge – the ordinary man in the street will say: “At last, after ten years, she can now exact her pound of flesh” (with apologies to Shylock). While I am prepared to assume that the President of the Supreme Court could not be said to have been subjectively biased against Rustavi 2 – there is no evidence to that effect – I find it highly problematic that this judge took part in the examination of the ownership dispute over Rustavi 2, whose Director General – the person whom everyone associated with the channel, the face and spokesman of the channel – had ten years earlier brought charges against her, as a result of which she was dismissed from the post she then held. Admittedly, unlike the situation in the case of Tocono and Profesorii Prometeişti (no. 32263/03, §§ 28-33, 26 June 2007), the President of the Supreme Court in the instant case had never expressed, either privately or in public, any comments conveying animosity towards either Rustavi 2 or its owners or, indeed, towards the Director General (N.Gv.). However, since the disciplinary proceedings conducted by the said N.Gv. had resulted in the President ’ s dismissal from the judicial post she had then held, such a severe professional blow from the past was sufficient, even in the absence of any additional circumstances, to make the President of the Supreme Court appear, in the eyes of a reasonable observer, ill-disposed to Rustavi 2 ’ s Director General personally and, by close association if not indeed identification, to the channel itself and its owners.

10. Finally, the fourth reason. The majority attempt to distinguish the instant case from Morice v. France ([GC], no. 29369/10, §§ 79-92, ECHR 2015) by very selective references to that judgment of the Grand Chamber. For instance, in paragraph 363, the majority state: “The Court is not oblivious to the fact that in the case of Morice v. France it found that the fact that only one judge was, as such, ‘ open to genuine doubt ’ , was sitting on an enlarged bench was not decisive for the objective-impartiality issue under Article 6 § 1 of the Convention.” The majority, however, omit the rest of the paragraph of Morice from where that idea is taken. I quote paragraph 89 of Morice in its entirety:

“89. Lastly, the Court takes the view that the Government ’ s argument to the effect that J.M. was sitting on an enlarged bench comprising ten judges is not decisive for the objective-impartiality issue under Article 6 § 1 of the Convention. In view of the secrecy of the deliberations, it is impossible to ascertain J.M. ’ s actual influence on that occasion. Therefore, in the context thus described (see paragraphs 84-86 above), the impartiality of that court could have been open to genuine doubt .” (Emphasis added)

In the instant case, the deliberations of the Georgian Supreme Court were also secret; and moreover in this case we are not talking about just any judge, but about the President of the Supreme Court (compare, mutatis mutandis , Perote Pellon v. Spain , no. 45238/99, § 50, 25 July 2002, and Castillo Algar v. Spain , 28 October 1998, § 49, Reports 1998 ‑ VIII). The majority then refer to paragraphs 84-83 and 89 of Morice to justify the statement that “ ... [t]he Court [in Morice ] explicitly specified that the aforementioned finding was limited to ‘ the very singular context ’ of the French case”. What could, with all due respect, be more singular than the case of Rustavi 2 before the domestic courts? Given the sensitivity of the case, irrespective of the lack of evidence of any explicit personal animosity between the President of the Supreme Court and N.Gv. (at the end of paragraph 363 the majority again slide into subjective impartiality), and in light of the previous history between her and the said N.Gv., the presence of the President of the Supreme Court as part of the composition which was to have the final say in the case at domestic level should have been more than enough reason for the President to either abstain or be recused. From the standpoint of an objective observer, even one biased judge may plausibly render the whole of the enlarged bench of judges vulnerable, and in reality there is no need to ascertain the extent of that judge ’ s actual influence on that occasion (see Morice , cited above, § 89).

11. To sum up, by conflating the subjective and objective tests of impartiality, and by ignoring the substance of Morice , the majority come to a conclusion in respect to the alleged breach of Article 6 § 1 which I find baffling. I would like to believe that my disagreement on the above two issues is due to my sensitivity as a career judge to objective impartiality and not to the fact that the Court is detached from the reality of life and of court litigation at domestic level.

[1] . I n colloquial Georgian , the literary character of “ Arkipo Seturi ” or “the Father-Breadwinner” has become a synonym for a type of “Big Brother” totalitarian ruler who uses the tools of total surveillance, disinformation, intimidation and manipulation to govern people, making them to adhere to the cult of the leader’s personality as a guiding ideology . “Asineta” is the personal name of a female character in the same novel.