Communicated on 8 September 2016
FOURTH SECTION
Application no. 44920/09
STUDIO MONITOR and ZURIASHVILI
against Georgia
lodged on 15 August 2009
STATEMENT OF FACTS
1. Studio Monitori (“the first applicant”) is a legal entity established under the Georgian law on 14 December 2005. Ms Nino Zuriashvili (“the second applicant”) is a Georgian national who was born in 1968 and lives in Tbilisi. They are represented before the Court by Ms N. Katsitadze, Mr Ph. Leach and Ms J. Evans, lawyers practising in Tbilisi and London.
2. The first applicant is a non-governmental organisation which was established with the aim of protecting human rights and democracy through conducting journalistic investigations. The second applicant is a journalist and one of the founding members of the above-mentioned organisation.
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
4. In 2007 the first applicant was conducting a journalistic investigation into the phenomenon of a “professional victim” in criminal cases. Notably, it came to the public attention that a small group of the same individuals would consistently appear as victims, giving incriminating statements against the accused, in several unrelated criminal cases. The first applicant was particularly interested in a certain V.G.L. who turned out to be the victim in nine unrelated criminal cases. The main resemblance in all of those cases was that this person would first file with the police accusatory statements and then fail to appear before the trial courts. Thus, it was suspected that V.G.L. was a “professional victim”, that is to say, an “agent” abetting the police to fabricate criminal investigations.
5. The second applicant was the journalist in charge of the above-mentioned investigative project. In August 2007, having learnt that yet another criminal case (“the criminal proceedings against X”) where V.G.L. appeared as the victim had been tried by the Khashuri District Court, she requested, on behalf of the first applicant, that the latter court grant her access to the relevant criminal case materials stored in its archives. She emphasised in her request the fact that the criminal proceedings against X had already been terminated.
6. On 3 August 2007 the Khashuri District Court refused the second applicant’s request. The court stated that the case materials concerning the criminal proceedings against X contained certain investigative documents, the public disclosure of which was not allowed under the Law on Crime Detection Activities (Section 5). Furthermore, the case file contained certain personal data about the parties to the proceedings, information which could not be made accessible to the public without the consent of the people concerned (Article 37 § 2 of the General Administrative Code).
7. The second applicant lodged a complaint, arguing that the Law on Crime Detection Activities applied exclusively to the agencies in charge of ongoing criminal investigation and not to the courts which publicly try the criminal cases. Furthermore, she emphasised that the criminal proceedings against X had already been terminated, which was a decisive factor, downplaying the significance of the public disclosure of the investigative information available in the case. As to a possibility that the case file contained personal data, the applicant suggested that the relevant parts be simply removed from the file or made illegible in the documents.
8. By a decision of 12 December 2007, the Borjomi District Court dismissed the second applicant’s complaint, fully upholding the reasons previously put forward by the Khashuri District Court.
9. The decision of 12 December 2007 was upheld by the Tbilisi Appellate Court and, finally, by the Supreme Court on 19 June 2008 and 16 February 2009 respectively.
COMPLAINTS
10. The applicants complain under Article 10 of the Convention about the inability to gain access to the materials in the criminal case, information which was indispensable for conducting their journalistic investigation.
QUESTIONS TO THE PARTIES
1. Can Article 10 of the Convention be said, in the light of the factual circumstances of the present case, to guarantee the applicants, both the applicant organisation and the second applicant, a right of access to information held by the domestic courts (compare Roche v. the United Kingdom [GC], no. 32555/96, § 172, ECHR 2005‑X with more recent authorities on the matter, such as Társaság a Szabadságjogokért v. Hungary, no. 37374/05, §§ 26 and 27, April 2009 and Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung v. Austria, no. 39534/07, § 34, 28 November 2013)?
2. In the affirmative, has there been a violation of the applicants’ right to freedom of expression, in particular their right to receive information, contrary to Article 10 of the Convention?
In particular, to what extent are the duties and responsibilities inherent in the applicants’ journalistic activities relevant to their claim and the State’s margin of appreciation in this field?
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