Communicated on 17 January 2017
FOURTH SECTION
Application no. 18925/09
Mariam JISHKARIANI
against Georgia
lodged on 9 January 2009
STATEMENT OF FACTS
The applicant, Ms Mariam Jishkariani, is a Georgian national who was born in 1965 and lives in Tbilisi. She is represented before the Court by Mr B. Botchorishvili, Mr Z. Khatiashvili and Mr I. Khatiashvili, lawyers practising in Tbilisi.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a psychiatrist and a founder and director of the Empatia non-governmental organisation (NGO), which works on medical and psychosocial diagnostics, and the rehabilitation and treatment of victims of torture and violence.
On 4 October 2003 the applicant’s NGO concluded an agreement with the Ministry of Justice of Georgia and undertook, among others 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 of Justice and make suggestions on how to solve the social problems it identified through its activities. The Ministry contracted to support the proper functioning of the office and to designate a coordinator from the Ministry’s Medical Department in order to ensure the plan was implemented effectively.
On 16 September 2005, while speaking live on private television channel Rustavi 2 about allegations of corruption and mismanagement within the Ministry and its Medical Department, the then Minister of Justice, Mr K.K., stated:
“... Mariam Jishkariani, the president of non-governmental organisation Empatia 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 ...”
The Minister further noted that the head of the Medical Department “will become an object of the investigation along with Jishkariani.”
On 20 September 2005 the daily newspaper Rezonansi published an interview with the Minister of Justice. 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 head of the Medical Department] that were involved in corruption. What concrete facts do you have when making such statements?
The Minister of Justice: [The head of the Medical Department] was completely under the influence of Mariam Jishkariani. Jishkariani is a psychiatric doctor of non-governmental organisation Empatia. 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 appeared 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 head 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 head of the Medical Department] ordered the transfer [of the two inmates] to the Republican Hospital.”
On 26 September 2005 the applicant instituted civil-law defamation proceedings against the Minister of Justice. She claimed non-pecuniary damages and requested a correction of the false accusations by the same means as they had been disseminated. The applicant argued that the drafting of recommendations on inmates’ health had been part of the agreement of 4 October 2003 and that all of her conclusions had been based on verifiable medical documents readily available in inmates’ medical files. She submitted that the explicit allegations of corruption and fraudulent behaviour against her were false and devoid of any factual grounds, especially considering that no investigative actions had been taken against her. The applicant submitted that the minister’s false allegations had had all the more of a negative impact on her reputation as a psychiatric health professional and on her professional activities in that field because of his position in society as a public official and the trust put in his statements.
On 22 June 2006 the Tbilisi City Court found against the applicant. While it agreed that the Minister’s accusations had been devoid of solid grounds, it stated 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 further concluded that the applicant was a public figure for the purposes of the Freedom of Expression and Speech Act in view of the agreement of 4 October 2003 and that the burden of proving the existence of the three cumulative conditions set out in section 14 of the Act to classify the Minister’s statements as defamation had rested with her. The court found that while the first condition of the falseness of the impugned statements could be regarded as having been met, the applicant had failed to show what damage she had suffered from their being disseminated in the media or that the Minister had known or ought to have known that he had given false information.
With respect to the 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 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.”
The Tbilisi City Court concluded 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.
On 2 July 2007 the Tbilisi Court of Appeals fully upheld the lower court’s decision.
A cassation appeal by applicant was rejected by the Supreme Court on 16 May 2008.
B. Relevant domestic law
The relevant provisions of the 2004 Freedom of Speech and Expression Act are as follows:
Section 1(i) (Definition of terms)
“A public figure is an official as defined by section 2 of Georgia’s Conflicts 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 13 (Defamation of a private individual)
“A person shall bear responsibility under the civil law for defamation of a private individual if the plaintiff proves in court that the respondent’s statement contains a substantially false assertion in relation to the plaintiff and that the latter suffered damage as a result of the statement.”
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 and 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.”
COMPLAINT
The applicant complains that the publicly voiced, unconfirmed accusations of corruption and fraudulent behaviour by the then Minister of Justice and the domestic courts’ refusal to protect her reputation amounted to a violation of her right to reputation under Article 8 of the Convention.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention (see, for the general principles, Karakó v. Hungary, no. 39311/05, §§ 17-26, 28 April 2009)?
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