Court of Appeals deems discussion of corruption risks libellous in its decision
The decision by Tbilisi Court of Appeals which ruled against Transparency International Georgia (TI Georgia) is unsubstantiated to such a degree that it raises questions with regard to the impartiality of judiciary and threatens the high standards of the freedom of speech and expression established by the judiciary so far.
On 5 July 2018, TI Georgia published the study evaluating corruption risks in the common court the Georgia courts. One of the sections of this study included an analysis of specific cases which, in the organisation’s opinion, involved possible risks of corruption. One of the cases analysed in the report was a legal dispute between partners in Aka, LLC (Maka Asatiani, Luiza Tavartkiladze, Salome Asatiani) and Davit Dzotsenidze.
The partners in Aka, LLC filed a lawsuit. The plaintiffs demanded to recognise as libellous the following evaluation made by TI Georgia in the study “[…] the renewal of the dispute due to reason of newly discovered circumstances in 2016 raises questions about the independence of the judicial process”.
Decision of the court of first instance
Tbilisi City Court ruled in favour of TI Georgia. The court decided on 13 November 2019 that the opinions expressed in the disputed section of the study were not libellous. Furthermore, the court noted that the incorrectly worded request in the lawsuit ruled out satisfying it from the outset.
Proceedings in the court of second instance
- Tbilisi Court of Appeals ruled against TI Georgia. The court decision is unsubstantiated, contradicts the law and the practice established by the Supreme Court, and lowers the standards of the freedom of expression in the country.
The court, in its decision, considered libellous an evaluation made in the study which was based on the facts established by the very court decision on the case of Aka, LLC. TI Georgia has been obligated to publish information about this decision on the organisation’s official website within one month.
Details of the case which we studied and discussion of which was considered libellous:
- The legal dispute between the partners of Aka, LLC and Davit Dzotsenidze which was concluded in court in 2012 was renewed due to newly discovered circumstances in 2016. The case was renewed after the Asatiani family presented documents which had already been included in the completed case. It was unclear to us why the judge renewed the case due to newly discovered circumstances based on the documents which did not represent new evidence in the case. This clearly contradicts the law and established judicial practice. It is due to precisely these circumstances that TI Georgia expressed suspicions concerning impartial administration of justice and it is this deliberation that Tbilisi Court of Appeals deemed libellous.
With this decision, the Court of Appeals effectively prohibited any person, including international organisations, from making fact-based evaluations of court decisions and expressing opinions about them. Should this decision remain in force, studying systemic shortcomings and ongoing trends in the judiciary will become more complicated. The standard of the protection of freedom of speech and freedom of expression in the country will become considerably lower, human rights organisations will be limited in fulfilling their fundamental oversight role, which contradicts principles of a democratic state. TI Georgia has appealed against this decision in the Supreme Court.
- The Court of Appeals helped one party to rectify a mistake, which is a crude violation of the law. The court of first instance stated that one of the reasons for rejecting the lawsuit was precisely the incorrectly worded request. The Court of Appeals allowed the Aka, LLC partners to change the wording of this request, despite the fact that the law did not give it the authority to do so.
- When discussing libel, the court was not guided by the law and the criteria established by the long-standing practice of the Supreme Court. Despite the fact that the organisation had every right to discuss the decision without redaction, the decision made by the Court of Appeals was based on an argument that Aka, LLC and its partners were identified in the study.
It should be noted that the decisions examined by the organisation were supplied to us by the party to the dispute. According to the Constitutional Court’s explanation, “any person is authorised to familiarise the public with the acts issued within the framework of the legal proceedings that concern them, to provide the public with a possibility to exercise control over their case”. By the same decision, the Constitutional Court deemed unconstitutional the rule of unconditional redaction of the decisions made by common courts. Correspondingly, the argument presented by the Court of Appeals against TI Georgia is fundamentally flawed and irrelevant.
- The court considered libellous the deliberation which was not developed in the study at all but was an interpretation made by the court itself. According to the court, the authors of the study claimed that “the decision in favour of the plaintiffs was made as a result of a corrupt deal”. We must underscore that no such allegation was made in any part of the study.
- Without any evidence and based only on the verbal statement by the plaintiff, the court established that the opinions expressed in the study inflicted damage on the party. According to the Supreme Court practice, concrete evidence is required to prove damage; no such evidence was presented at any stage of the proceedings.
The Public Defender addressed the Supreme Court with the amicus curiae opinion with regard to this case. The position of the Public Defender is that when the organisation published its study where it talked about the risks related to impartial administration of justice with regard to specific cases, it was acting within the framework of the rights granted to it by the 1998 UN Declaration. Correspondingly, “if, as a result of considering this case, the court decides that the disputed statements made in the aforementioned report are libellous and there are grounds for restricting freedom of expression for TI Georgia, it would be simultaneously interfering in the process of exercising the rights granted to the human rights organisation and its employees by the 1998 UN Declaration on Human Rights Defenders.”
Considering all of the above, the vague arguments cited in the court decision and procedural violations raise questions concerning objective consideration of the dispute. Should this decision remain in force, the standard of protection of freedom of speech and freedom of expression in the country would plummet. It should also be noted here that two judges in the chamber of appeals, Genadi Makaridze and Merab Lomidze, are currently judicial candidates for the Supreme Court.
TI Georgia hopes that the Supreme Court will make an objective assessment of the decision made by the court of lower instance and that the court of cassation will maintain the high standard of the freedom of speech and expression it has established.
 According to Article 381 of the Civil Procedure Code of Georgia, “a subject matter of dispute may not be modified or increased, nor a cross appeal may not be filed with the court of appeals”.
 “According to the conclusion made by the Court of Appeals, the plaintiff failed to present to the court the evidence which would confirm the fact of libel on the part of the defendant or the circumstance that that the defendant’s statement inflicted damage on the plaintiff or encroached upon their dignity and honour. […] The party’s explanation alone cannot shoulder the burden related to the allegation. (Supreme Court of Georgia Decisions: AS-810-1129-07, 16 May 2008; AS-207-194-2011, 14 July 2011; AS-677-638-2011).