Public Defender's Statement on Seizure of Rustavi 2 TV Company’s Property

Given the high public interest, the Public Defender has surveyed the Tbilisi City Court’s decision made with regard to the complaint against the Rustavi 2 broadcasting company and its partners on August 15, 2015.

The court has made a decision to seize the shares of the partners of the Rustavi 2 broadcasting company; the company’s land and buildings located in Tbilisi were also seized; the company was banned from selling or renting out any moveable items, such as TV or radio broadcasting equipment, generators, vehicles, etc. The TV company and its partners were forbidden to undertake obligations on the company’s behalf, issue trade warrants, approve annual results, re-organize or liquidate the company, make amendments to the regulations, including transfer of the company’s management rights or license, and manage the company’s property.

Protection of property rights, as well as the right of freedom of expression, is one of the main missions and priorities of a state with modern Western values ​​of democracy.

The primary guarantee of protection of property rights is the 21st article of the Constitution, which recognizes and protects property. This country’s legislation and regulations, as well as decisions and actions of officials and public servants, must be consistent with the Constitution. Despite the high standards of protection of property rights, it is not an absolute right. It can be restricted in some cases defined by law. One of the forms of restriction is defined by procedural legislation of Georgia, through satisfying complaints.

The mentioned standard ensures execution of fair justice and a fair trial guaranteed by the Constitution.

When considering a complaint satisfaction request, property rights of the plaintiff (the benefits are available to him if the court makes a decision in his favor), property rights of the defendant (his property right is not restricted more than needed to satisfy the specific requirement), and the right to fair trial (consideration of the case is based on principles of equality, competitiveness and court’s each decision serves the realization of rights ensured by law) contradict each other.

The legislation does not impose high standards of proof on the defendant and regards reasonable suspicion as sufficient, though by taking such a confrontation between the rights into consideration, the court is obliged to observe the principle of proportionality – the property right shall be restricted only to a degree that is necessary for reception of a requested profit by a plaintiff. In addition, the suspicion expressed by a plaintiff must be well-founded and based on real threats and must not represent a punishment mechanism for the defendant. The means used for provision of a complaint must be proportional with a purpose. If court restricts any side’s right more that is necessary for attaining a specific legitimate purpose, it may create a risk of violation of property rights, which may cast doubt on impartiality of the court.

Due to the fact that the threshold between the legal restriction of the property right and the violation of this right is very small, the court should survey the benefits that may be received by the plaintiff and the loss that may be inflicted to the defendant with special care. Protection of property rights of all parties in the dispute is attainable only through such objective approaches.

It is also extremely important that the defendant in the case is the Rustavi 2 broadcasting company, which has a high rating. Accordingly, the result of the aforementioned dispute is likely to affect not only the parties, but the entire state. A broadcasting company is one of the platforms for exercising the constitutional right to freedom of expression and unlike other disputes, the court faces more risks in this case – it must not impede the TV network’s broadcasting to the point that leads to restriction of the constitutional right to freedom of expression.

The Public Defender believes that the Tbilisi City Court's judgment does not fully meet the standards of a fair trial, since it fails to justify the need for the use of several means of satisfying a complaint. It also fails to explain why making changes to the regulations was restricted when the company's entire movable and real estate had already been seized and there was no longer a risk of their alienation; why it forbade affirmation of the company's annual results; why the company director’s right to management was fully restricted while the right to undertake new obligations was forbidden, whereas the right to manage movable and immovable property had already been revoked.

The Public Defender considers that the court limited the property rights in a way that may be detrimental to the broadcasting company's activities. It may impede issuing of payments, employment of journalists, broadcasting of new programs, purchase or change of technical inventory, etc. In addition, the court did not explain how such restriction of rights serves protection of applicant's legitimate interests and why the same goal could not be accomplished with less restriction of the defendant's property rights. The condition may serve as a hindrance to the functioning of the broadcasting company, and therefore, to exercising the freedom of expression and media freedom in the country, as the court process may last for several months or even years.

Based on the abovementioned, the Public Defender considers that the Court's judgment on application of measures of satisfying a complaint violates the principle of proportionality of restriction of rights. The court limited the property right to a greater extent than was required by the plaintiff's legitimate goal, which, in turn, could create a real threat to the realization of freedom of expression by television stations.

The dispute is another test of Georgian judiciary, since the property rights, freedom of expression and the right to a fair trial all coincide with each other. Therefore, it is extremely important that transparency, competitiveness, impartiality and high standards of equality principles are maintained during the dispute.

The Public Defender continues to watch and survey the events developing around the case within its mandate.

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