Unfounded restriction of freedom of expression to protect the court’s authority is impermissible
In a statement published on 9 November 2015, the non-judge members of the High Council of Justice of Georgia expressed concern over the reactions of various public groups regarding the Rustavi 2 case ruling. The release states that the comments, including those of the non-governmental organizations, made about the ruling and a specific judge cause immense damage not only to the independence of courts but also to other principles of democracy and solidity of state institutions.
Furthermore, in Rustavi 2’s Archevani talk-show on November, 10 the High Council of Justice member Eva Gotsiridze once again rebuked statements made about the court’s ruling and in this context explained that according to precedents of the European Court of Human Rights, limitation of the freedom of expression was acceptable to protect the authority of the court.
Foremost it should be emphasized that both according to the Constitution of Georgia and the European Convention of Human Rights, the freedom of expression is not an absolute right and can be restricted in accordance with Paragraph 2 of Article 10 of the Convention, including to protect the authority and independence of the judiciary. However, because of the immense importance of the freedom of expression in a democratic state, the precedents of the European Court of Human Rights have created very strict standards for restricting the freedom of expression. Therefore, factual circumstances of each case are taken into account to judge which legal good from the opposing interests should be prioritized.
Below we offer a brief review of relevant precedents from the European Court of Human Rights practice.
On 23 April 2015, in the case of Morice v France the Grand Chamber of European Court of Human Rights declared that a high standard of protection applies to freedom of expression, especially in cases of high public interest. In this case, proper functioning of the judiciary, even in regards to a pending legal case, was judged as such.
The European Court also mentioned that the proper functioning of courts is inherently of great public interest, as it plays one of the most important roles in a democratic society. Also, the court, as a guarantor of justice, must enjoy public confidence, to fully perform its duties. Therefore, in some cases, it is important that the court be protected from gravely damaging, essentially unfounded attacks, which would put its credibility under threat. As the judge, who is a target of such criticism, is a subject to a duty of discretion that precludes him from responding.
Nevertheless, the European Court explains that, save cases of gravely damaging attacks that are clearly unfounded, the judge may be a subject to personal criticism.
In this case, the lawyers stated that during presiding over a specific case, principles of impartiality and fairness were violated, therefore, the violations of the judge should have been investigated. The lawyers were fined for defamation by French court for these allegations.
The European Court evaluated circumstances of the case and came to a conclusion that the limitation of freedom of expression was a violation of the European Convention. The Court explained that despite the fact that statements made in regards to the court were particularly critical, such statements must be allowed, when factual circumstances allow it. Constructive criticism can be beneficial to proper functioning of judiciary.
According to precedents of the European Court, different standards of protection apply to statements of a fact and to value judgments. According to the Court, the existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible to proof. Therefore, a requirement to prove a value judgment would be a violation of the Convention, however the Court mentioned, that even a value judgment should have some factual basis, otherwise in some cases it can be seen as an excessive.
Furthermore, Georgian legislation sets an even higher standard for freedom of expression: according to the Law on Freedom of Speech and Expression, the right to express an opinion (value judgment) is protected as an absolute privilege and cannot be limited.
Another interesting decision on the same topic, is a ruling of the European Court of Human Rights on the case of Marian Maciejewski v Poland, which concerned an article critical of employees of judiciary, titled Thieves in the Administration of Justice. In this context, the journalist pointed out that there was a “mafia-like judge-prosecutor association”. The journalist was fined for defamation in accordance with the national legislation. However, the European Court of Human Rights ruled on this case that the government of Poland had violated the freedom of expression.
In the ruling, it was underlined that the Court must apply the most careful scrutiny when the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern. According to the Court, the media is one of the means by which the public can verify that judges are discharging their heavy responsibilities in a manner that is in conformity with the aim which is the basis of the task entrusted to them. Shortcomings in the judiciary system are of high public interest, and therefore, it is legitimate that the journalists and other people are allowed to engage in public discussions about the issue. Furthermore, despite the fact that the phrases of the journalist seemed harsh, such degree of exaggeration or even provocation is permissible in a public debate and is protected by Article 10 of the Convention.
In a ruling of 2006 against Austria, the European Court of Human Rights also found a violation of freedom of expression. The case concerning a fine imposed on the applicant because of a critical evaluation of the ruling of a court. Namely, the Article stated that the ruling barely differed from medieval witch trials. The Austrian courts concluded that protection of the authority of the judge and generally of courts permitted such restriction on the freedom of expression.
The European Court, unlike the Austrian courts, taking into account the factual circumstances of the case and the importance of the topic, came to a conclusion that freedom of expression was more important in this case than protection of the authority of the court. Therefore, the journalist had a right to publish information, including in a provocative and exaggerated form.
In evaluation of balance between freedom of expression and protection of authority of courts, the European court also sided with freedom of expression in cases of De Haes and Gijsels v. Belgium and Hrico v Slovakia.
The European Court of Human Rights has made several rulings, where restriction on freedom of expression was justified in favor of protection of the authority of court (Barfod v. Denmark; Prager and Oberschlick v. Austria; Lomakin v. Russia; Wingerter v. Germany; Falter Zeitschriften GmbH v. Austria; Klaus Jürgen BÖHM v. Germany).
Based on the factual circumstances of the above-mentioned cases, the European Court decided that completely unfounded claims and allegations are beyond the limit of the Convention allowed under the freedom of expression and contradicts legal good of protection of authority of a judge and judicial system. For example, in the case of Lomakin v. Russia, the European Court found that the fine imposed on a journalist was justified. The journalist accused a judge in using his office to receive illegal benefits. After reviewing the factual circumstances of the case, the Court came to a conclusion that the information published by the journalist had no factual basis and constituted a personal attack on the judge. Therefore, restriction of freedom of expression was justified. The Court came to the same conclusion in the case of Prager and Oberschlick v. Austria. In this case, the journalist had demonstrated the violation of law and professional standards by the judge. Taking into account the factual circumstances of the case, the European Court came to a conclusion that the allegations of the journalist towards the judge were of a very grave character, and therefore without any factual basis, such unfounded allegations were harming public confidence in the judiciary.
To sum up, according to the precedents of the European Court of Human Rights, the issue of whether freedom of expression or protection of authority of courts should take precedence over another, is judged by factual circumstances of individual cases.
Applying standards of the European Court of Human Rights to the case of Rustavi 2
Undoubtedly, the legal case of Rustavi 2 is of high public interest. Along with legal issues, it must be taken into account that the case concerns the most popular private TV channel, that is very critical of the government. In recent years, the TV company has accused the government of political pressure several times.
Several rulings in regards to freezing of assets of Rustavi 2 and later of Sakartvelo TV suffered from strong shortfallings in procedural and material justification. Furthermore, during the legal proceedings of the case it became known that the Prosecutor’s Office had charged the judge’s mother with a criminal offense. This created additional basis for suspicion of political motivation in the case.
The ruling of November, 5 was particularly concerning. In this ruling, the judge, theoretically, without any concrete examples, discussed the editorial policies of the channel and concluded, that under the current management, the channel would not be able to perform its media duties. This was clearly an interference of a judge in independence of editorial policies of a TV channel.
Based on the above-mentioned, taking into account the factual circumstances of the case, we think public debate on this issue is not only permissible, but also necessary, to ensure public control over the entire process. Furthermore, taking into account the importance of this case, it is a right of every citizen to receive full and detailed information regarding the court process. As part of the public debate, freedom of expression also protects statements, including those made in regards to a court ruling, that are of exaggerated or even provocative nature. Therefore, we think that protection of the authority of the court should not become a basis for unduly restricting the freedom of expression.