The European Court of Human Rights ruled on a case concerning civil defamation proceedings brought by the applicant, a publicly known defence counsel, in relation to several statements made by Father I., a prominent figure of the Georgian Orthodox Church, during a television interview.

The applicant complained under Article 8 of the Convention that the domestic courts had failed to protect his right to reputation. The applicant is a publicly known lawyer who represented the interests of the injured party in a high-profile criminal case concerning the murder of Sandro Girgvliani. At the time of the facts, the applicant was also representing the defendant in another criminal case that had received significant media attention, concerning an attempted murder of the Patriarch’s personal secretary (“the Mamaladze case”). Father I., a well-known clergyman of the Georgian Orthodox Church, was one of the prosecution witnesses in the Mamaladze case. In September 2017 the applicant was invited to participate in a live television programme, Axali Ambebi, broadcast on the private channel Iberia, during which Father I., in his live telephone intervention, referred to the lawyer Ramishvili as a “provocateur” and “informer” in the context of his defence activity, adding that the applicant had transmitted information to the former Head of the Constitutional Security Department of the Ministry of the Interior while representing the interests of the victim’s family in the Girgvliani case.

Ramishvili therefore brought civil proceedings against Father I., alleging that the statements were defamatory, containing manifestly false information and damaging his honour and professional reputation. The defendant, in turn, lodged a counterclaim, arguing that his statements constituted personal opinions and value judgments and that, regardless of their factual accuracy, they fell within the scope of freedom of expression protected by the Law on Freedom of Speech and Expression. The Tbilisi City Court upheld Ramishvili’s claim, ordering Father I. to publicly retract his statements, which were considered to contain specific information capable of being verified or refuted and formulated in a way that led the listener to believe they were established facts. The statements were capable of creating the impression that Ramishvili had been inserted by the security services and was providing them with information. The judge also noted that Father I. had failed to provide any factual basis for his alleged value judgments and had not indicated the source of his information.

By contrast, the Tbilisi Court of Appeal held that Father I.’s value judgments had to be tolerated by Ramishvili as a public figure. The statements were classified as value judgments concerning the applicant’s professional activity, which was of significant public interest. The court also emphasised uncertainty as to whether Father I. had been aware that the interview was being broadcast live, and held that the applicant, as a public figure, had to prove not only the falsity of the statements but also malice on the part of the author. As Ramishvili had failed to do so, the Court of Appeal overturned the first-instance judgment. The decision was upheld by the Supreme Court, which placed the statements within the context of a public debate on a matter of high public interest, considering them expressions of subjective assessment. In particular, the term “spy” was classified as a value judgment lacking factual basis and enjoying absolute protection. The Supreme Court held that the statements did not necessarily imply criminal allegations and that the evidence produced by the applicant was insufficient, as it failed to prove the subjective element required for liability.

The Court of Strasbourg first reiterated the existence of a positive obligation under Article 8 of the Convention requiring States to adopt measures ensuring respect for private life even in relations between individuals. For the assessment of the justification of the impugned statements, a distinction must be made between statements of fact and value judgments, depending on whether the statements can be proven or not. The obligation to prove the truth of a value judgment is impossible to fulfil and constitutes an interference with freedom of opinion protected by Article 10 of the Convention. The classification falls within the margin of appreciation of national authorities; however, even value judgments must have a sufficient factual basis, otherwise they may be excessive. Allegations and value judgments must be assessed in light of the circumstances of the case and the overall tone of the statements, bearing in mind that matters of public interest may be considered value judgments. In the present case, the competing interests were the freedom of expression of Father I. and the right to reputation of Ramishvili, a public figure known for his professional activity. The Court agreed with the domestic courts that the statements formed part of a debate on a matter of public interest and that the applicant, as a defence lawyer in high-profile cases, had voluntarily exposed himself to public scrutiny and was required to show a higher degree of tolerance. The accusations made by Father I. were considered serious, implying misconduct and potential breaches of professional ethics. However, the domestic courts failed to examine whether a sufficient factual basis existed, even for value judgments. Moreover, the Supreme Court imposed an unattainable burden of proof on the applicant, requiring him to demonstrate not only the falsity of the statements but also the subjective intent of the author. As to the manner of communication, the Court noted that regardless of whether Father I. was aware of the live broadcast, the statements were made to a journalist and thus capable of wide dissemination, with a significant impact on the applicant’s reputation. The reputational harm was particularly serious given the role of lawyers in ensuring fair trial rights under Article 6 of the Convention.

In conclusion, while agreeing with the classification of the statements by domestic courts, the Court found that they failed to carry out a proper assessment of the factual basis and imposed an excessive burden of proof on the applicant, thus finding a violation of Article 8 of the Convention.

 

(Comment by Martina Palazzo)