CASE OF JISHKARIANI v. GEORGIA

FIFTH SECTION

CASE OF JISHKARIANI v. GEORGIA

(Application no. 18925/09)

JUDGMENT

STRASBOURG

20 September 2018

FINAL

20/12/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Jishkariani v. Georgia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Yonko Grozev,
André Potocki,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 28 August 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 18925/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Ms Mariam Jishkariani (“the applicant”), on 9 January 2009.

2. The applicant was represented by Mr I. Khatiashvili and Ms L. Mukhashavria, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.

3. The applicant complained that the domestic courts had failed to protect her right to reputation under Article 8 of the Convention against defamatory statements made by the then Minister of Justice.

4. On 17 January 2017 the complaint under Article 8 was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1965 and lives in Tbilisi.

A. Background

6. The applicant is a psychiatrist and a founder and director of the Rehabilitation Centre for Victims of Torture “Empathy”, a non‑governmental organisation (“the NGO”).

7. On 4 October 2003 the applicant’s NGO concluded an agreement with the Ministry of Justice (“the Ministry”) and undertook, among other tasks, to create a psychosocial rehabilitation office in Tbilisi Prison no. 1. The agreement specified that, depending on the availability of resources, the NGO was to involve specialists, use clinical laboratory and diagnostic methods, and provide medication to inmates if treatment was prescribed. It was to provide quarterly progress reports to the Ministry and make suggestions on how to solve the social problems it identified through its activities. The Ministry undertook to support the proper functioning of the rehabilitation office and to designate a coordinator from the Ministry’s Medical Department in order to ensure the implementation of the contract.

8. On 3 August 2004 the applicant became member of the Public Monitoring Commission overseeing the implementation of the inmates’ rights and competent to issue recommendations if any irregularities were observed. Presidential order no. 309 issued to that end specified that the members of the Commission could enter all prisons during the working hours without prior authorisation. The persons concerned had the right to meet inmates in private and access any documentation except that which was classified as confidential.

9. On 29 November 2004 the then Minister of Justice created the Inmates’ Mental Health Research and Monitoring Commission. It included seven State and non-State mental health experts, including the applicant. The document did not elaborate on the specific functions of the Commission or its members.

10. On 10 September 2005 Mr L.Ts. – an inmate placed in the prison hospital in view of his mental health issues – physically assaulted the Director and the head doctor of the prison hospital (“the incident of 10 September 2005”). He had been transferred to the prison hospital by the director of the Medical Department of the Ministry (“the Medical Department”), based on the applicant’s medical opinion to that end. In an unrelated incident that happened at around the same time, an inmate died of a complication in his health problems and it was reported that numerous others were waiting in vain to be admitted to the hospital. Both incidents attracted wide media coverage in view of the allegations of corruption and mismanagement in the medical management of the penal system. Some members of the civil society contended that the transfers to the prison hospital were not implemented adequately and objectively but were based on suspicious arrangements within the Ministry.

11. On 11 September 2005 an investigation was opened into the incident of 10 September 2005 on account of an alleged abuse of official power. On an unspecified date the applicant was questioned as a witness.

12. On 13 September 2005 the then Minister of Justice, Mr K.K. (“the Minister”) commissioned an internal investigation concerning the activities of the Medical Department of the Ministry carried out between the period of 1 January 2005 and 13 September 2005. The General Inspectorate of the Ministry was to deliver its findings on 13 October 2005.

B. Statements made in respect of the applicant

13. On 16 September 2005, while speaking live on a private television channel, Rustavi 2, about allegations of corruption and mismanagement within the Ministry and its Medical Department, the Minister, Mr K.K., stated:

“I am impelled to specify surnames and specific facts... Mariam Jishkariani, the president of non-governmental organisation [Empathy] and a member of the [public] monitoring council [for penal institutions] has been ... grossly exceeding her powers and writing medical conclusions concerning specific persons, bypassing the commission [set up for that purpose]. I have those conclusions on my desk. The investigation has them already and practically speaking a full assessment will be carried out which will reveal whether this was done for the sake of pretty eyes or whether it was precisely the type of business that this shameless person – I cannot call her anything else – has found for herself. Because it was owing precisely to Jishkariani’s scribbles on a piece of paper that [two allegedly healthy inmates who later assaulted doctors] found themselves in the prison hospital without any legal grounds for that ...”

14. The Minister further noted that the director of the Medical Department was “the one who... [relied on] Jishkariani’s illegal notes ... not signed by the members of the [medical] commission... to transfer the inmates [to the prison hospital].” He noted that “therefore he [was] the suspect in these illegal arrangements and “[would] become an object of the investigation along with Jishkariani.” The Minister continued to note that “there are not only these two facts and the investigation is pending because it was Mariam Jishkariani who was the most important figure and [whose opinions were guiding the director’s actions]...”

15. The Minister also criticised the Public Defender and accused his representatives of having a vested interest in transferring certain inmates to the prison hospital.

16. The Rustavi 2 TV channel also transmitted brief comments made by representatives of the civil society, including the Public Defender, who were involved in the public monitoring of the prisons (see paragraph 8 above). They noted that the accusations levelled by the Minister had been groundless in view of the fact that the transfers of inmates to and from the prison hospital had been within the exclusive competency of the Ministry.

17. The programme also featured the applicant’s brief comment, as recorded by a journalist, that the Minister wanted to have “a monitoring council that [would] not take a peek inside a prison]” and “the prisons [were] in the same conditions ... as those under Saddam Hussein’s regime.”

18. On 20 September 2005 the daily newspaper Rezonansi published an interview with the Minister. He discussed allegations of corruption in the management of medical facilities in the penal system. The relevant excerpts of the interview read as follows:

“Journalist: You give two names – Jishkariani and [the director of the Medical Department] that were involved in corruption. What concrete facts do you have when making such statements?

The Minister: [The director of the Medical Department] was completely under the influence of Mariam Jishkariani. Jishkariani is a psychiatric doctor of non‑governmental organisation [Empathy]. That field is very tainted with respect to prisons. Even during Soviet times a lot of money was made on psychiatric reports. Certificates of declarations of insanity were granted to those who were not entitled to them.

It was precisely in her own interests that this lady [referring to the applicant] made a nest in this monitoring council. ...

The confrontation started immediately after we uncovered materials where Mariam Jishkariani had signed documents on the transfer of inmates to the prison hospital. It was revealed that there had been healthy people amongst those inmates. ...

Journalist: Are you saying that money taken from the inmates was circulating among those people?

The Minister: Only among them. Doctors at the medical department are responsible for the medical reports. Their boss was [the director of the Medical Department]. Jishkariani and others were accomplices. The money they took should either have been brought to me or taken by them. Nothing was brought to me. [The inmates] who assaulted the personnel had been transferred to the prison hospital based on Jishkariani’s medical report even though they are healthy. She had no authority to do that. Is that not a crime? Naturally, Jishkariani could not have committed it alone. She only wrote a report, or to be precise, scribbled something on a piece of paper that was not signed by any of the commission members. Despite this [the director of the Medical Department] ordered the transfer [of the two inmates] to the Republican Hospital.”

C. Subsequent developments concerning the investigation

19. On 13 October 2005 the General Inspectorate delivered its report. It principally concerned the actions and omissions of the director of the Medical Department in the management of the transfers of inmates to the prison hospital. The report mentioned the applicant, in brief, and only with respect to one transfer. In particular, it noted that an inmate L.Ts. (see paragraph 10 above) was assessed by the medical commission of the Ministry on 12 January 2005. He was diagnosed with organic personal disorder with periodic episodes of decline. The commission noted that the inmate had been receiving treatment for a mental illness since 2002 and had a second-degree disability status. He had further suffered a head trauma on 8 January 2005. However the commission did not recommend his transfer to the prison hospital. According to the report, the same inmate was reassessed on 21 January 2005 by the applicant who, noting his medical history described above, wrote in the commission’s journal that the inmate needed to be supervised in a psychiatric ward, and prescribed him certain medication. Subsequently, despite the fact that the members of the medical commission did not agree with the applicant’s assessment, “the director of the Medical Department bypassed the commission and decided – unilaterally – to transfer L.Ts. to the prison hospital based on [the applicant’s] medical conclusion [in the journal] ... and in doing so he violated ... all the relevant rules concerning the prisoners’ transfers to the medical establishment.”

20. On 27 December 2007 the investigation into the incident of 10 September 2005 was discontinued on the grounds of the absence of a crime, as provided under Article 28 § 1 (b) of the Code of Criminal Procedure (see paragraph 32 below).

D. Civil-law defamation proceedings instituted by the applicant

21. On 26 September 2005 the applicant instituted civil-law defamation proceedings against the Minister. She claimed non-pecuniary damages and requested a retraction of the false accusations by the same means as they had been disseminated. According to the applicant, the drafting of recommendations on inmates’ mental health had been part of the agreement of 4 October 2003 (see paragraph 7 above) and that all of her conclusions had been based on verifiable medical documents readily available in inmates’ medical files. The explicit and public allegations of corruption and fraudulent behaviour against her circulated by the Minister through the media outlets were false and devoid of any factual grounds, especially considering that no investigative actions had ever been taken against her. The Minister’s false allegations had had all the more of a negative impact on the applicant’s reputation as a mental health professional because of the Minister’s position as a high-level public official and the public confidence that it invited.

22. On 13 April 2006 the Tbilisi City Court dismissed Mr K.K.’s application to discontinue the consideration of the case based on Section 5 of the Freedom of Expression and Speech Act (“the Act”) (see paragraph 30 below). It reasoned that while a public debate existed on the matter, it was not of a political character for the purposes of that provision as the applicant was not a politician. Yet, according to the court, she could have been considered as a public figure in view of the public attention that her activities had attracted.

23. On 22 June 2006 the Tbilisi City Court found against the applicant. In spite of the applicant’s reliance on Article 18 of the Civil Code (see paragraph 31 below), it applied the standards established by the Freedom of Expression and Speech Act (“the Act”) as lex specialis. The court concluded that the applicant was a public figure for the purposes of the Act (see paragraph 30 below) in view of her activities in prison (see paragraph 7 above), and that the burden of proving the existence of the three cumulative conditions set out in Section 14 of the Act (see paragraph 30 below) to classify the Minister’s statements as defamation had rested with her.

24. The court agreed that the applicant had presented evidence that she was not and had not been a suspect, or otherwise officially accused of violating the law, and concluded that the Minister’s accusations “may have contained erroneous facts.” However it continued to note that in any event, the other two requirements of Section 14 of the Act had not been met. Namely, according to the court, the applicant had failed to show what harm she had suffered from the false information being disseminated by the Minister in the media, as required by the second condition set by Section 14.

25. With respect to the third criterion of whether the Minister had known that the impugned statements were false or had acted with apparent and gross negligence, the court noted the following:

“The court agrees with the respondent’s argument that Mr K.K. took measures to verify the information before communicating it. The respondent presented Order no. 1640 of the Minister of Justice of Georgia of 13 September 2005 instructing the General Inspectorate of the Ministry to carry out an inspection of the Medical Department. Thus [the Minister] issued an order aimed at verification three days prior to making the public statement. Accordingly, it is possible that he was in possession of preliminary information about the existence of irregularities. However, the possession of [such information] is not confirmed in the case file. According to the case file, the existence of violations in the medical department is confirmed by the General Inspectorate’s conclusion dated 13 October 2005. Therefore it has not been confirmed that the Minister was aware that the information was false by 16 September 2005. It has also not been proven that he acted with gross negligence when making the statement. [The Minister] scheduled the inspection of a department within the scope of his competence and thus he took measures to verify the information.”

26. The Tbilisi City Court concluded that the statements in question had been made as part of an important public discussion surrounding the management of medical facilities in the penal system. It noted that the Minister had enjoyed freedom of expression to voice his opinion about the state of affairs within his Ministry and that his statements had fallen within the limits of acceptable criticism, which it found to be wider in respect of the applicant because of her status as a public figure.

27. On 2 July 2007 the Tbilisi Court of Appeal fully upheld the lower court’s judgment. Regarding the third criterion of whether the Minister had known that the impugned statements were false or had acted with apparent and gross negligence, the court noted the following:

“The Appellate Chamber shares the reasoning of the [lower court’s] judgment that the applicant had failed to demonstrate that [the Minister] was either aware of the falsehood of the disseminated facts, or that [he] acted with apparent and gross negligence which led to the dissemination of a statement containing a substantially false fact.

Civil procedure is based on the principle of adversarial procedure which, in addition to conferring certain rights to the parties, also imposes procedural obligations in their own interest. The failure of a party to abide by [those obligations] will lead to an unfavourable result. This rule stems from Article 4 of the Code of Civil Procedure according to which the parties have an equal possibility to define facts in support of their [position] and they themselves decide which evidence shall confirm those facts. Article 102 of the same Code provides that each party shall prove the circumstances on which it bases its [requests]. ”

28. The appellate court concluded that “K.K. had a right to voice his opinion about the state of affairs within his Ministry and the applicant, in view of her status as a public figure, was obliged to tolerate it as acceptable criticism.”

29. On 16 May 2008 the Supreme Court declared the applicant’s appeal on points of law inadmissible as manifestly ill-founded.

II. RELEVANT DOMESTIC LAW

30. The relevant provisions of the 2004 Freedom of Speech and Expression Act are as follows:

Section 1(i)

“A public figure [is] an official as defined by Section 2 of ... Conflict of Interest and Corruption in Public Service Act; a person whose decision or opinion has an important influence on public life; [or] a person about whom there is public interest as a result of certain actions carried out in relation to particular matters.

Section 5: Freedom of political speech and speech in court

“1. A statement shall not entail liability for defamation if made:

a) in the course of political debates, as well as by a Member of Parliament or [a local self-government body] as part of carrying out his or her duties...”

Section 14: Defamation of a public figure

“A person shall bear responsibility under the civil law for defamation of a public figure if the plaintiff proves in court that the respondent’s statement contains a substantially false assertion in relation to the plaintiff, that the latter suffered damage as a result of the statement, and that the falseness of the assertion was known to the respondent or the latter acted with apparent and gross negligence, which led to the dissemination of a statement containing a substantially false assertion.”

31. Article 18 of the Civil Code as it stood at the material time and insofar as relevant, provided as follows:

“...2. A person may protect in court, according to the procedures laid down by law, his or her honour, dignity, privacy, personal inviolability or business reputation from defamation.

3. If information defaming the honour, dignity, business reputation or privacy of a person has been disseminated through the mass media, it shall be retracted by the same means...

6. The values referred to in this provision are protected regardless of the culpability of the wrongdoer. If a violation is caused by a culpable action, [the victim] may claim damages. Damages may be claimed in the form of the profit accrued to the wrongdoer. In case of culpable violation, [the victim] may also claim compensation for non-pecuniary (moral) damage...”

32. Article 28 § 1 (b) of the Code of Criminal Procedure (1998) in force at the material time provided that “...a preliminary investigation shall be discontinued ... if the [imputed] act is not unlawful.”

33. Sections 4, 5, and 23 of the Internal Regulations of the Ministry of Justice (adopted by the Government’s Decree no. 70 of 30 August 2004) as they stood at the material time specified that the Ministry was the entity in charge of, among many other issues: managing the penal system; implementing policies and measures aimed at protecting the rights and well-being of prisoners; preventing and redressing the commission of crimes therein; and through its Medical Department, supervising medical services in prisons, including the prison hospital, and the inmates’ placement therein. According to the Internal Regulations of the General Inspectorate of the Ministry of 11 February 2002, the General Inspectorate was under the direct supervision and authority of the Minister.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

34. The applicant complained that the domestic courts’ refusal to protect her reputation against the publicly voiced unconfirmed accusations of corruption and fraudulent behaviour by the then Minister of Justice amounted to a violation of her rights under Article 8 of the Convention. The provision in question reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

35. The Government contested that argument.

A. Admissibility

36. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

37. The applicant submitted, among other arguments, that the Minister had publicly accused her of criminal behaviour without any factual grounds available to him either at the time those statements were made or at a subsequent stage. She maintained that the commissioning of an internal investigation on the matter just before making the impugned statements without waiting for its outcome could hardly be regarded as complying with his due diligence obligation to verify the information.

38. The applicant further submitted that the domestic courts’ refusal to protect her reputation as a mental health professional against the unfounded factual accusations by such a high-level Government official amounted to a violation of her right to reputation under Article 8 of the Convention.

39. The Government submitted that the interference, if any, in the applicant’s right to reputation, was not of such severity to attract the protection of Article 8 of the Convention. They maintained that the Minister’s statements were made in the context of a public debate surrounding the question of medical management of the penal system, and the applicant participated therein by responding to the Minister’s accusations publicly. They reiterated the findings of the domestic courts that the applicant was to be regarded as a public figure due to her activities in the penal institutions in view of which the limits of permissible criticism towards her were wider.

40. In the Government’s opinion, the domestic courts correctly applied the standards established in the European Court’s case-law while balancing the applicant’s right to reputation under Article 8 of the Convention against the Minister’s freedom of expression and the public’s right to receive information concerning an important topic. They further maintained that in view of the wide margin of appreciation afforded to States, the domestic courts had an exclusive competence to maintain balance between the freedom of expression and the right to private life under the Convention. Furthermore, in view of the decriminalisation of defamation, the legislative trend at domestic level had been shifted in favour of the freedom of expression.

2. The Court’s assessment

(a) General principles

41. The Court reiterates the principles it has established in its case-law concerning the protection afforded by Article 8 to the right to reputation as part of the right to respect for private life (see, among other authorities, Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95-99, ECHR 2012, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 82-84, 7 February 2012, and Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007). In order for Article 8 to come into play, an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015, and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, 27 June 2017). In cases that concerned allegations of criminal conduct the Court also took into account that under Article 6 § 2 of the Convention individuals have a right to be presumed innocent of any criminal offence until proved guilty (see, among other authorities, Worm v. Austria, 29 August 1997, § 50, Reports of Judgments and Decisions 1997‑V; and Du Roy and Malaurie v. France, no. 34000/96, § 34, ECHR 2000-X).

42. The choice of the means calculated to secure compliance with Article 8 of the Convention is in principle a matter that falls within the Contracting States’ margin of appreciation, whether the obligations on the State are positive or negative. Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 162, 27 June 2017, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 90, ECHR 2015 (extracts)). However, this margin goes hand in hand with European supervision by the Court, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see, among other authorities, Von Hannover (no. 2), cited above, § 105, and Egill Einarsson v. Iceland, no. 24703/15, § 36, 7 November 2017).

43. In cases of the type being examined here, the main issue is whether the State, in the context of its positive obligations under Article 8, has achieved a fair balance between an individual’s right to protection of reputation and the other party’s right to freedom of expression guaranteed by Article 10 of the Convention (see Von Hannover (no. 2), cited above, § 98, and Pfeifer, cited above, § 38). In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention or under Article 10. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in theory be the same in both cases (see Couderc and Hachette Filipacchi Associés, cited above, § 91).

44. The Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it could be excessive (see Pfeifer, cited above, § 46, with further references). The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. The Court may, however, consider it necessary to make its own assessment of the impugned statements (see Egill Einarsson, cited above, § 48).

45. When exercising its supervisory function, the Court’s task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see, among other authorities, Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 164). Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court’s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see Bédat v. Switzerland [GC], no. 56925/08, § 54, ECHR 2016, with further references).

46. The Court has indicated various relevant criteria for balancing the right to respect for private life against the right to freedom of expression (see, among other authorities, Axel Springer AG, cited above, §§ 89-95; Von Hannover (no. 2), cited above, §§ 108-113; and Couderc and Hachette Filipacchi Associés, cited above, § 93). In the circumstances of the present case, the Court finds it appropriate to consider the following applicable criteria: the contribution to a debate of general interest, how well‑known the applicant was and the nature of her prior conduct, subject of the statements, the content, form and consequences of the statements, and the method of obtaining the information and its veracity.

(b) Application of the above principles to the present case

(i) Seriousness of the accusations underlying the Minister’s statements

47. The publicly voiced clear insinuations by the Minister that the applicant, together with the director of the Medical Department of the Ministry, had been involved in the issuing of wrong medical reports concerning prisoners’ health in exchange for money, and that she was under criminal investigation (see paragraphs 13-14 and 18 above) were serious. They gave the impression that she had committed crimes, and must have affected her reputation as a medical professional and an active representative of the civil society. Therefore, the accusations attained a requisite level of seriousness as they could harm the applicant’s reputation under Article 8 of the Convention.

(ii) Contribution to a debate of general interest

48. The Court agrees with the domestic courts’ assessment that a debate on an important subject of general interest existed at the material time. The incident of 10 September 2005 and another episode involving the death of a prisoner owing to the alleged lack of medical treatment (see paragraph 10 above) prompted a discussion about whether the prisons and their medical services were managed properly by the responsible institutions. The security, health and well-being of inmates and their timely hospitalisation constituted matters which affect the public to such an extent that it may legitimately take an interest in them and attracted wide media coverage (see, among other authorities, Couderc and Hachette Filipacchi Associés, cited above, § 103).

49. In the circumstances of the present case, the statements aimed at clarifying the procedures and possible deficiencies in the management of the medical services of the prisons were part of a public debate on the matter.

(iii) How well-known the applicant was, the applicant’s conduct prior to the dissemination of the impugned statements, and the subject of the statements

50. The Court observes that the applicant, an established mental health professional and an active member of civil society, as well as the person responsible for the inmates’ rehabilitation project in prison and a member of the Inmates’ Mental Health Research and Monitoring Commission (see paragraphs 6‑9 above) was regarded by the domestic courts as a public figure rather than a private person for the purposes of the Freedom of Speech and Expression Act (see paragraphs 22 and 30 above).

51. The debate and the impugned statements did not concern the applicant’s private life but her public activities in the abovementioned domain. Considering the applicant’s position and activities in prison, including the medical assessment of prisoners (see paragraphs 6‑10 above), the Court does not see any reason to depart from the domestic courts’ finding concerning the applicant’s status as a public figure, acting in an official capacity, the extent of acceptable criticism in her respect being thus wider than in respect of ordinary citizens (see Fürst-Pfeifer v. Austria, nos. 33677/10 and 52340/10, § 46, 17 May 2016).

(iv) The content, form and consequences of the statements

52. The Court has already noted that the Minister’s accusations were serious and gave the impression that the applicant had committed crimes (see paragraph 47 above). Yet, the domestic courts concluded that the statements constituted the Minister’s opinions aimed at contributing to an important public discussion on the matter, to be tolerated by the applicant in view of her status as a public figure (see paragraphs 26 and 28 above). They therefore held, in essence, that the impugned statements constituted value judgments which were not excessive. However, none of the domestic courts elaborated on how a serious factual allegation against a named individual could constitute a value judgment and contribute to a debate of general interest.

53. In the circumstances of the present case, even assuming that the Court were to accept the classification of the accusation voiced against the applicant as a value judgment, the Court reiterates that under its settled case-law, even where a statement amounts to a value judgment there must exist a sufficient factual basis to support it, failing which it will be excessive (see Egill Einarsson, cited above, § 52, and Pfeifer, cited above, § 46, with further references).

54. The Court will therefore consider the veracity of the statements made by the Minister which, owing to his position, carried particular weight and invited the confidence of the public. This prompted all the more the need to verify their accuracy.

(v) Method of obtaining the information and its veracity

55. The Minister had argued that the inmate implicated in the incident of 10 September 2005 and transferred to the prison hospital on the basis of the applicant’s medical note had in fact been healthy (see paragraphs 13 and 14 above), and the applicant was not entitled to make entries in the journal concerning inmates’ health (see ibid.). He also clearly insinuated that the applicant had been involved in a corrupt scheme of issuing wrong medical conclusions in respect of healthy inmates so that the latter would be transferred to the prison hospital in exchange for money (see paragraph 18 above).

56. As concerns the first element, the domestic courts did not answer the applicant’s argument that the medical documentation of the relevant inmate demonstrated that he had suffered from various health issues (see paragraph 21 above). The Court notes that while the inmate implicated in the incident of 10 September 2005 was transferred to the prison hospital based on the applicant’s medical assessment of him (see paragraphs 10 and 19 above), the findings of the General Inspectorate of the Ministry delivered after the impugned statements were made confirmed, as the applicant had argued, that the inmate in question was in fact suffering from various health issues, including mental problems and a head trauma (see paragraph 19 above).

57. As for the applicant’s competency to make entries concerning the inmates’ health in the relevant journal, the domestic courts did not rule on the matter.

58. However, even assuming that the second element of the Minister’s accusation had been true and could have invited criticism towards the applicant, the main aspect of the Minister’s statements and the civil litigation instituted by the applicant concerned the third element of the Minister’s allegations, namely the veracity of the serious accusation that the applicant had issued wrong medical reports, placing healthy inmates in the prison hospital in exchange for money.

59. In this connection, the domestic courts agreed that the applicant had never been criminally investigated, and that the Minister’s accusations “may have contained erroneous facts” (see paragraph 24 above). Furthermore, the criminal investigation opened into the incident of 10 September 2005 (see paragraph 10 above) which, as it appears from the case file, may have partly concerned the broader issue of mismanagement and corruption in the medical department of the Ministry, was discontinued on the grounds of the absence of a crime (see paragraphs 20 and 24 above). Therefore, the Minister’s accusations, even assuming that the Court were to accept the classification of the statements as value judgments, lacked a sufficient factual basis. Yet the domestic judicial authorities considered that the Minister had made an effort to verify the information before making his statements by commissioning an internal investigation on the matter (see paragraphs 25 and 27 above).

60. The question that remains to be answered is whether the Minister had demonstrated due diligence in an attempt to verify the information he spread. The domestic legislation as applied by the domestic courts to the applicant’s case required the applicant, not the Minister, to prove not only the falseness of the accusation levelled against her and the damage sustained, but also that the Minister had acted with apparent and gross negligence in disseminating the otherwise uncorroborated accusations (see paragraph 30 above).

61. Against this background, and bearing in mind the principles established by the Court when balancing rights and freedoms under Articles 8 and 10 of the Convention (see paragraphs 41-46 above), the Court cannot accept the finding of the domestic courts that the Minister had shown due diligence in attempting to verify the veracity of the claims he had made or that the applicant had failed to demonstrate lack of diligence on his part (see paragraph 27 above). While the Minister had in fact commissioned an internal investigation, he did not wait for its completion. Nor was he in possession of other verified information against the applicant (see paragraphs 24-25 above). Therefore, commissioning an inquiry without waiting for its outcome cannot be considered to be an effort living up to the standard of due diligence.

62. The Court reiterates in this connection that the Convention cannot be interpreted to require individuals to tolerate, in the context of their rights under Article 8 of the Convention, being publicly accused of criminal acts by Government officials who are expected by the public to possess verified information concerning those accusations, without such statements being supported by facts (see, mutatis mutandis, Egill Einarsson, cited above, § 52).

63. In the light of the foregoing, the Court is not convinced that the reasons advanced by the domestic courts for protecting the Minister’s freedom of expression outweighed the right of the applicant to have her reputation safeguarded. The Court therefore considers that the domestic courts failed to strike a fair balance between the competing interests involved.

There has accordingly been a violation of Article 8 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

64. 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

65. The applicant claimed 335,775 euros (EUR) in respect of pecuniary damage with regard to the alleged loss of income. She also sought EUR 100,000 in respect of non-pecuniary damage.

66. The Government submitted that the applicant’s claims were not duly substantiated, and that in any event, there was no link whatsoever between the alleged violation of the Convention and the damage, if any. They considered the applicant’s claims for non-pecuniary damage to be excessive and invited the Court to make an award on an equitable basis should it find a violation of the Convention.

67. The Court rejects the applicant’s claim for pecuniary damage as unsubstantiated. As regards the non-pecuniary damage, the Court considers that the applicant must have suffered distress as a result of being falsely accused of criminal activities by a high-level Government official and the domestic courts’ failure to protect her right to reputation which would not be adequately compensated for by the mere finding of a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage.

B. Costs and expenses

68. The applicant also claimed EUR 233 for the costs and expenses incurred before the domestic courts, EUR 36 for the postage fee, and EUR 3,200 for legal costs of her two representatives before the Court.

69. The applicant asserted that her representatives had spent 32 hours each at the rate of EUR 50 on the Court proceedings. In support of this claim, the applicant submitted a contract dated 14 February 2017 concluded with Mr I. Khatiashvili. The latter document specified that the applicant was to pay the relevant sum to Mr Khatiashvili if the European Court established a violation of her rights under Article 8 of the Convention. As regards the applicant’s second representative, Ms L. Mukhashavria, the applicant only submitted the first page of a supposed contract.

70. The Government objected to these claims. They noted that the document submitted in respect of Ms L. Mukhashavria was incomplete, lacked signatures, did not reflect any contractual obligations, and was in any event excessive in view of the work carried out by the applicant’s primary representative, Mr I. Khatiashvili. As regards the court fees incurred before the domestic courts, the Government disagreed that the evidence submitted by the applicant was sufficient to demonstrate the payment of such fees. Finally, the postage fee was paid by the NGO Empathy, not the applicant, and the latter had failed to show that it related to her application.

71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,600 in respect of the applicant’s representation before the Court by Mr I. Khatiashvili and EUR 233 in respect of the expenses incurred at domestic level.

C. Default interest

72. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint under Article 8 of the Convention admissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,500 (one thousand five hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,833 (one thousand eight hundred and thirty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

Full & Egal Universal Law Academy