Public Defender’s Statement on Appointment of Temporary Management in Rustavi 2
Yesterday, on November 5, 2015, Tbilisi City Court judge Tamaz Urtmelidze made a decision on appointment of temporary managementin the Rustavi 2 TV company. In the morning of November 6 respective changes were reflected in the Public Registry. According to the decision, it is aimed at ensuring the enforcement of the same judge’s decision of 3 November. It is noteworthy that the operative part of the decision was announced on November 3, while the court has 14 days to prepare a reasoned decision.
The Public Defender considers that the court’s decision of 5 November is unjustified and violates the freedom of speech and expression of the Rustavi 2 TV company.
First of all, it should be noted that under the current legislation, appointment of temporary management contradicts the principle of predictability of the law, since such a possibility is not directly provided by the law. In its 5 November decision, the judge apparently relied on section 3 of article 198 of the Civil Procedure Code of Georgia, which states that it is possible to use "other measures" of enforcement as well, if necessary. The Public Defender is not aware of any fact when courts of Georgia used appointment of temporary management as an enforcement measure. It is noteworthy that the court's decision in this section is based on American laws and practices.
The court decision does not sufficiently consider how necessary it is to appoint temporary management in parallel with the use of measure of seizure by the court’s 5 August decision, which forbade the Rustavi 2 partners and directors from using all of their major powers and seized the company’s real and personal property.
Accordingly, the 5 November decision is unjustified, as it does not clearly explain how the appointment of temporary management provides new, additional guarantees for the protection of complainant's interests.
The only issue considered by the judge in the 5 November decision, which makes this decision different from the decision on seizure, is the editorial policy - how the TV channel must broadcast and what types of reports are important for protection of public interest. The abovementioned is labeled by the Public Defender as interference of the court with the freedom of speech and expression, which is absolutely unacceptable. The issue of how the TV channel must continue broadcasting should not have become the subject of consideration for the court and such a decision raises alarming questions about the court’s interest in granting this kind of authority to temporary managers.
Other powers granted to temporary managers are also important. In particular, according to subparagraph “g” of the operative part of the court’s decision, the temporary managers are authorized to make any decision regarding representation, management and ruling of the Rustavi 2 broadcasting company, including the decisions considered in articles 9 and 91 of the Law on Entrepreneurs of Georgia, which, in fact, implies transfer of full powers of Ltd Rustavi 2 partners and directors to temporary managers.
Given all this, the Public Defender considers that all the restrictions and prohibitions, registered in the Public Registry according to the 5 August decision of the court, should be imposed on temporary managers.
The court’s decision also says that temporary managers must be "neutral, independent persons". However, it does not say how the selected persons – Revaz Sakevarishvili and Davit Dvali – meet this criteria, especially given that Davit Dvali claims ownership of the Rustavi 2 TV company, and today, according to media reports, Davit Dvali and Jarji Akimidze talked about the details of cooperation with Kibar Khalvashi, the plaintiff in the given legal dispute, provided that the legal proceedings end in his favor. These circumstances, in light of the Constitutional Court’s decision to suspend the norm of immediate enforcement, lead to important questions regarding the appropriateness of the 5 November decision.
As mentioned above, the 5 November decision grants the temporary managers full authority to make decisions regarding management and representation of the company, while powers of the acting Director General and the Financial Director of the company, as well as all other persons in charge, were suspended. Under these conditions, the judge's decision of 5 November restricts the right to fair trial, as the Director General and the Financial Director of the company, because of their suspended powers, are deprived of the possibility to appeal against the court’s decision by themselves or through their representatives in the court of higher instance.
The abovementioned gaps indicate at the lack of reasoning of the court’s decision and unpredictability of its nature. The court decision must be clearly and accurately substantiated in order to ensure the protection of the right to fair trial and through it the protection of any other rights, including the right to property. However, the 5 November decision fails to meet this requirement.
Unfortunately, apart from the abovementioned blatant violation of human rights, the 5 November decision casts doubt not only on the impartiality of one particular judge, but it also reveals serious problems in the judiciary system.