CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 juillet 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sB853CD25 { font-family:Arial; font-size:9pt } .sD6DE1560 { font-family:Arial; font-size:9pt; font-style:italic } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s4BAE41EE { font-family:Arial; font-size:11pt } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s7ACB8D74 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sAAD669EE { font-family:Arial; font-size:6.67pt; font-weight:bold; vertical-align:super } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sB206C230 { margin-top:12pt; margin-left:68.65pt; margin-bottom:6pt; text-indent:-16.75pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s60CAAD9D { width:15.64pt; display:inline-block } .sABED4136 { width:183.32pt; display:inline-block } .sA1981C75 { width:4.63pt; display:inline-block } .s6196896C { width:200.33pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       FIFTH SECTION             CASE OF RUSTAVI 2 BROADCASTING COMPANY LTD AND OTHERS v. GEORGIA   (Application no. 16812/17)               JUDGMENT       STRASBOURG   18 July 2019     FINAL   09/12/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Rustavi 2 Broadcasting Company Ltd and Others v.   Georgia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Yonko Grozev,   Vincent A. De Gaetano,   Síofra O’Leary,   Mārtiņš Mits,   Lәtif Hüseynov,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 21 May and 11 June 2019, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in an application (no. 16812/17) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two companies registered under Georgian corporate law, Rustavi 2 Broadcasting Company   Ltd (hereinafter “Rustavi 2”) and TV Company Sakartvelo   Ltd (hereinafter “TV Sakartvelo”), and two Georgian nationals, Mr   Levan Karamanishvili and Mr Giorgi Karamanishvili, on 3 March 2017. 2.     The applicants were represented by Ms   T.   Muradashvili and Mr   D.   Sadzaglishvili, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr   B.   Dzamashvili, of the Ministry of Justice. 3.     The applicants alleged that their various rights under Articles   6 §   1, 10 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention had been breached during the judicial examination of a civil dispute concerning the ownership of Rustavi 2 shares. 4.     On 28 November 2017 notice of the application was given to the Government. The applicants and the Government each submitted written observations on the admissibility and merits of the application. 5.     Submissions were also received from the Public Defender (ombudsman) of Georgia’s Office and the Georgian Young Lawyers’ Association who were granted leave by the President of the Section to intervene as third parties in the written procedure (Article 36   §   2   of the Convention and Rule 44 § 3 of the Rules of Court). 6.     On 27 May 2019 the applicants, referring in substance to Rule   28 §   2   of the Rules of Court, raised an objection to the impartiality of Judge Lado Chanturia. The Chamber examined it, pursuant to Rule 28 § 4 of the Rules of Court, and decided, by unanimous vote, to reject it as wholly unfounded on 11 June 2019. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The first applicant, Rustavi 2, is a television channel in Georgia that has been operating under this name since 27 August 1996. Its headquarters are situated in Tbilisi. 8.     The second applicant, TV Sakartvelo, is a media company registered in Georgia on 16 July 1997. TV   Sakartvelo is owned by the third and fourth applicants. In particular, the third applicant is a 60% shareholder, whilst the fourth applicant owns 40% of the shares in the second applicant. 9.     The third and fourth applicants, Mr Levan Karamanishvili and Mr   Giorgi Karamanishvili, are brothers and Georgian nationals who were born on 21 October 1971 and 11 January 1966 respectively and live in Tbilisi. A.     Chronology of the transfers of Rustavi 2 shares, according to the case file 10.     Rustavi 2 was registered on 27 August 1996 by three founding members – J.A., D.D. and E.K. It was established as the result of a reorganisation of the advertising agency Gama Plus Ltd, previously registered on 23 February 1995 by decision no. 2/38 of the Ministry of Justice of Georgia and owned by the above-mentioned three people. Thus, by 27 August 1996, the date of the original registration of the company, the only three owners of Rustavi 2 were J.A. (33.3%), D.D. (33.3%) and E.K. (33.3%). 11.     On 29 November 2001 a private individual, N.T., purchased 10% of Rustavi 2 shares from the three founding members. The transaction was recorded by the Vake-Saburtalo District Court on 10 December 2001. Starting from the latter date the shares in the company were distributed as follows: J.A. (30%), D.D. (30%), E.K. (30%) and N.T. (10%). 12.     On 16 June 2004, by two separate share-purchase agreements, a certain P.K. acquired 60% of the shares of Rustavi 2 from J.A. and D.D. (30% from each of them). On the very same day, P.K. sold his newly acquired 60% of Rustavi 2 shares to K.K., a businessman. Thus, starting from 16 June 2004 the shareholders of Rustavi 2 were K.K.   (60%), E.K.   (30%) and N.T. (10%). 13.     On 22 June 2004 E.K. sold his 30% of Rustavi 2 shares to Panorama   Ltd, a limited liability company exclusively owned by K.K. 14.     On 22 October 2004, at a partners’ meeting of Rustavi 2 Ltd, N.T. ceded his shares of Rustavi 2 Ltd in favour of the remaining two shareholders, K.K. and Panorama Ltd. The cession of the shares was recorded by the Vake-Saburtalo District Court on 25 October 2004. Consequently, by 25 October 2004 K.K. and Panorama Ltd, the company exclusively owned by the businessman, became the sole owners of Rustavi   2 (both the individual and the corporate entity will be hereinafter jointly referred to as “K.K.”). 15.     By a share-purchase agreement of 26 December 2005, K.K. ceded 22% of his shares in Rustavi 2 to a third party, H. Ltd. 16.     On 13 September 2006 H. Ltd sold its 22% of Rustavi   2 shares to H.G.I.G. Ltd. 17.     By two separate share-purchase agreements dated 17 November 2006, K.K. ceded the remaining 78% of his shares in Rustavi 2 to another third party, G.-T. Ltd. 18.     On 29 November 2006 G.-T. Ltd disposed of 23% of its newly obtained Rustavi 2 shares to the above-mentioned H.G.I.G. Ltd. 19.     On 1 December 2006 G.-T. Ltd ceded the remaining 55% of its shares in Rustavi 2 to an offshore company, D.R. Ltd. In that transaction, the latter company was represented by the third applicant. 20.     On 2 February 2007 D.R. Ltd disposed of its newly acquired 55% of shares in Rustavi 2 to another company, G.G. Ltd. 21.     On 10 October 2008 H.G.I.G. Ltd gifted 15% of its 45% of shares in Rustavi 2 to a certain individual, I.Ch. On the same day, and as another gift, I.Ch. received 15% of the 55% of Rustavi 2 shares owned by G.G. Ltd at that time. 22.     On 18 March 2009 G.G. Ltd transferred the remaining 40% of its shares in Rustavi 2 to another new party, D. Ltd, for a symbolic price of 1   (one) Georgian lari (GEL – approximately 0.40 euros (EUR)). 23.     On the same day, 18 March 2009, I.Ch. transferred 30% of his Rustavi 2 shares to the above-mentioned D. Ltd for a symbolic price of GEL 1 (approximately EUR 0.40). 24.     On 28 November 2011 H.G.I.G. Ltd ceded the remaining 30% of its Rustavi 2 shares to a new actor, Ch.I. Ltd, for a price of GEL 160,000. 25.     On 6 December 2011 Ch.I. Ltd ceded its newly acquired shares in Rustavi 2 (30%) to the third applicant for an unknown price – the value of the ceded shares were to be determined by an additional confidential agreement. 26.     On 6 December 2011 D. Ltd transferred 60% of its shares to the third applicant and the remaining 10% to another individual, G.G for an unknown price – the value of the ceded shares was to be determined by additional confidential agreements. 27.     On 4 October 2012 the third applicant ceded 40% of its 90% of shares in Rustavi 2 to M.G. Ltd. 28.     On 9 October 2012 M.G. Ltd transferred its newly acquired shares in Rustavi 2 company (40%) to the fourth applicant. 29.     On 13 and 14 November 2012, by a decision of the Rustavi 2’s board of shareholders, the company’s share capital was increased by an injection of additional real-property assets, and the second applicant, the company owned by the third and fourth applicants (see paragraph 8 above), was given 51% of the shares in Rustavi 2. 30.     As a result of all the transfers of the Rustavi 2 shares detailed above, by the time the civil proceedings in the present case were initiated on 4   August 2015 (see paragraphs 48 and 74 below), Rustavi 2 was owned by the second applicant (51%), the third applicant (22%), the fourth applicant (18%) and N. (9%). N. was the wife of G.G., and she had inherited his shares on an unspecified date following his death (see paragraph 26 above and 74 below). B.     The parties’ conflicting accounts of the events allegedly constituting a State-led campaign against Rustavi 2 31.     On 1 October 2012 a parliamentary election took place in Georgia. The Georgian Dream Coalition (“the GDC”), led by Mr Bidzina Ivanishvili, who had founded that political entity several months before the election, in April 2012, won the election with 54.97% of the votes, whilst the former ruling party, the United National Movement (“the UNM”), who had been founded by and closely associated with the then President of the country, Mr Mikheil Saakashvili, obtained 40.34% of the votes. As a result, the GDC formed the new Government and Mr Ivanishvili became Prime Minister. President Saakashvili, who had held the office of President for two consecutive terms from 25 January 2004, remained in the office until the expiry of his second mandate on 17 November 2013. Thus, between 1   October 2012 and 17 November 2013, there was a period of “political cohabitation” between the GDC and the Prime Minister, on the one hand, and President Saakashvili on the other. 1.     The applicants’ account 32.     The applicants brought to the Court’s attention a number of incidents which, whilst appearing to be independent of each other at first sight, revealed, in their opinion, signs of a well-orchestrated campaign led in the background by the GDC-formed Government against Rustavi   2. (a)     Early public interviews given by various protagonists 33.     According to the applicants, the 2012 parliamentary election campaign and the period afterwards were characterised by extreme polarisation. The GDC and its leaders voiced several threats against political opponents, with Rustavi 2 being a primary target. In that connection, the applicants referred to a televised interview that Mr Ivanishvili had given on 2 August 2012, that is to say prior to the parliamentary election, in which he had expressed views about an ownership row over Rustavi 2 and the interests of E.K. (one of the founders and former owners of the channel, see paragraph 10   above) and K.K. (another former owner of the channel, see paragraph 14   above). 34.     The case file contains a full recording of that interview. It shows that the leader of the then opposition, Mr Ivanishvili, stated that he believed that E.K. had deceived Rustavi 2’s two other co-founders during the initial transfers of the shares in the company, by profiting the most at the expense of the others. He added that the details of those old transactions were, however, no longer worthy of any attention. Mr Ivanishvili further stated during the interview that, although he did not know K.K. in person, he had a good opinion of the latter, the businessman who, wishing to see the country develop, had initially been a supporter of the UNM. During the interview, Mr Ivanishvili pledged his support for the journalists of Rustavi 2 and stated that he hoped that they served the interests of the Georgian society. 35.     On 5 October 2012 Rustavi 2’s two other co-founders, D.D. and   J.A., who had founded the channel together with E.K. in 1996 (see paragraph 10 above), made a public announcement about their intention to institute legal proceedings to restore their title in respect of the company, which they had lost. 36.     On 17 October 2012, during a televised interview on Maestro TV (another channel), K.K. stated the following: “My main goal is to salvage [Rustavi 2] from the hands of liars and abusers, so that this channel can start serving the interests of truth [and] the interests of the Georgian people rather than the interests of falsehood.” In the same interview, K.K. also stated that he was planning to claim back certain other business interests misappropriated from him by the former ruling forces, emphasising that “unlike Rustavi 2, those other companies [had] always [been] profitable entities.” (b)     Criminal proceedings against Rustavi 2’s Director General 37.     On 15 November 2012 Mr N.Gv., who had served as Deputy Chief Public Prosecutor, Minister of Justice and Minister of Education under the previous, UNM-formed government (see paragraph 31 above), was appointed Director General of Rustavi 2. 38.     Shortly after his appointment, on 19 December 2012 a criminal case was instituted against N.Gv. for corruption offences allegedly committed in 2009, when he had held the position of Deputy Chief Public Prosecutor. He was released on bail pending trial. On 14 November 2013 the Tbilisi City Court cleared N.Gv. of all charges. The acquittal was subsequently upheld in full by the appellate and cassation courts. (c)     E.K.’s public interview of 25 December 2012 39.     On 25 December 2012 E.K., one of the founders of Rustavi 2 (see paragraphs 10 and 33 above), held a large news conference focusing on the details of the interview given by Mr Ivanishvili back in August 2012. During that conference, E.K. publicly announced his interest in claiming back Rustavi 2. In particular, E.K. stated the following: “If [D.D.] and [J.A.] are the rightful owners, then I am a rightful owner too ... If [K.K.] is right, then I have the right to claim too ... No court can determine this property dispute without me ... I also want to tell Bidzina Ivanishvili to look into my eyes when he talks about Rustavi 2, since both of us know many things which, if revealed, could harm a lot of people.” (d)     “People-meters” 40.     On 24 February 2014 the State Revenue Service commenced an inventory check of TV MR Georgia (hereinafter “TV MR”), the only company in Georgia which measured viewing figures at that time. Within the framework of that inventory, State auditors asked the company to reveal the addresses of all households across Georgia where so-called “people-meters” – electronic devices connected to television sets to monitor people’s viewing behaviour – had been installed. The company’s management refused to comply with the request, referring to the fact that the information requested was strictly confidential in accordance with a contract between the company and the participants of the survey. In reply, the State Revenue Service formally assured TV MR that the requested information would be kept strictly confidential as long as under Article 39 § 3 of the Tax Code of Georgia such type of information was classified as a tax secret, disclosure of which attracted administrative and/or criminal liability. The State agency further assured the company that there had been not a single incident of its having breached the confidentiality rules. Despite those assurances, TV MR refused to abide by the State Revenue Service’s orders, and that refusal resulted in the company being fined GEL 400 (approximately EUR 130) in accordance with the relevant domestic legal provisions. 41.     On 19 March 2014 the Director General of Rustavi 2, N.Gv., publicly labelled the audit inspection of TV MR as a campaign against private television channels which received income from advertising. N.Gv. claimed that if TV MR revealed which households had “people-meters”, the relevant equipment would then need to be relocated to different, anonymous households, which would be a time-consuming exercise. N.Gv. expressed his concerns that Rustavi 2’s budget would shrink by half if viewing figures were not measured, since the amount of private advertising on the channel was largely determined by those figures. (e)     Eavesdropping on Rustavi 2’s premises 42.     On 6 May 2014 Rustavi 2 announced publicly that the Government had been illegally wiretapping its premises, and broadcast video footage anonymously obtained from the Ministry of Internal Affairs as evidence. The video footage was a recording of a conversation between the channel’s Director General, N.Gv., and his deputy. The Chief Public Prosecutor’s Office launched on the same day an investigation into the matter. Subsequently, N.Gv. rejected the investigation’s preliminary version of events, which asserted that the surveillance equipment might have been installed by the former ruling Government. On the contrary, he accused the new Government of having illicitly installed hidden cameras on the premises of the television channel through its “confidants” employed by the company. Shortly after the incident, the chief and the deputy chief of Rustavi 2’s security service were dismissed by N.Gv. for their purported role in the illicit wiretapping. (f)     Verbal attacks on Rustavi 2 by the GDC 43.     According to the applicants, various representatives of the GDC and members of the Government intensified their verbal attacks against Rustavi   2 during that period. Thus, on 2 July 2014 the Deputy Prime Minister, Mr   K.Ka. (hereinafter “K.Ka.”), when solicited by journalists for his views concerning the history of numerous transfers of Rustavi 2 shares from one private party to another, made the following statement: “Hopefully, Rustavi 2 will be returned to its owners, probably this time will come.” 44.     In an interview given to a newspaper on 14 July 2015, E.K. (see paragraph 9 above) commented on the Deputy Prime Minister’s above ‑ mentioned statement: “The Government is trying to gain influence over Rustavi 2 by entering certain alliances with my former partners [D.D. and J.A.]. ... [K.Ka.’s] statement regarding Rustavi 2 is a very interesting detail in that connection. He said that the channel would go back to its owners ... I openly declare that if any decision is taken with regard to the ownership of Rustavi 2, it will be a purely political decision rather than a legal one.” 45.     In an extensive public interview given to a newspaper on 26   October 2015, one of the leading members of parliament from the GDC ruling coalition, G.T., referred to the court proceedings which had already been initiated at that time by K.K. in the following terms: “[Rustavi 2] has not been an objective channel. It has been very partial. We have been in power for three years, we have done so much good for the country, and [Rustavi 2] has not said a single positive word about [our work] ... Only negative and subjective news ... It is natural that those in government are fed up with [this] misinterpretation of the facts ... They have found ... a true owner [who] has now appeared [ მონახეს ... გამოჩნდა რეალური მეპატრონე ] ... And it is only natural that the true owner is asking for a fair trial.” 46.     On the following day, 27 October 2015, G.T. made another spontaneous statement during an argument with Rustavi 2 journalists: “Tomorrow, Rustavi 2 will cease to exist.” (g)     E.K.’s suicide and K.K.’s claim over the ownership of Rustavi 2 47.     On 15 July 2015 E.K. was found dead in his car. A criminal investigation conducted by the Chief Public Prosecutor’s Office subsequently resulted in a finding that he had committed suicide. 48.     On 4 August 2015 K.K., one of the former owners of Rustavi 2 (see paragraph 14 above), lodged a civil action against all four applicants. Details about the relevant court proceedings are provided below (see paragraphs 74-174 below). According to the applicants, K.K. was not randomly chosen by the State to carry out a judicial battle over the ownership of the company, as he was a proxy of the ruling forces, and his close relatives were open supporters of, and financial contributors to, the GDC. (h)     Personal threats against Rustavi 2’s Director General 49.     On 21 October 2015 the Director General of Rustavi 2, N.Gv., made a public statement saying that middlemen with links to the law-enforcement authorities had attempted to blackmail him by threatening the safety of his family members and threatening to publish illegally obtained video ‑ recordings allegedly depicting his private life if he refused to step down from his position. 2.     The Government’s account 50.     After notice of the present application had been given to the Government, they objected to part of the facts as presented by the applicants for being deliberately misleading, incomplete or unrelated to the subject-matter of the dispute before the Court. They supplemented the contested facts with additional information. This information has either been already incorporated into the applicant’s version above (in so far as the correction of minor errors in relation to certain dates and figures, translation of the quotes from Georgian and other information of a purely editorial nature was at stake) or is presented in a summary manner below (where the objection to the facts was of a more substantive nature). The Government’s comments are structured around the same headings as those used in the applicants’ account of the events. (a)     Early public interviews given by various protagonists 51.     The Government contested the applicants’ statement that the 2012 parliamentary election campaign and the period afterwards had been characterised by extreme polarisation and that the GDC and its leaders had voiced several threats against political opponents, with Rustavi 2 being a primary target (see paragraph 33 above). They noted that the applicants had not provided any sources for such a strongly worded assertion. 52.     As regards the public interviews given by Mr Ivanishvili and K.K. on 2 August and 17 October 2012, the Government did not contest the relevant quotations (see paragraphs 34 and 36 above), but insisted that those statements did not demonstrate any connection between the State and K.K. in relation to the civil proceedings instituted by the former against the current owners of Rustavi 2. (b)     Criminal proceedings against Rustavi 2’s Director General 53.     The Government further commented that the fact that a criminal case had first been instituted against Rustavi 2’s Director General for corruption offences allegedly committed in 2009, of which he had been subsequently cleared by the domestic courts (see paragraph 38 above), did not show that the State had been trying to silence Rustavi 2 or that the domestic judiciary had lacked independence. (c)     E.K.’s public interview of 25 December 2012 54.     The Government did not contest the applicants’ account of the interview made by E.K. on 25 December 2012, nor did it submit any additional comments in that connection. (d)     “People-meters” 55.     As regards the inventory check that the State Revenue Service had conducted with respect to TV MR, the company monitoring people’s television viewing behaviour (see paragraphs 40 and 41 above), the Government submitted that the procedure in question, which had started long before the initiation of the judicial proceedings by K.K. against Rustavi   2’s owners (see paragraph 48 above), had been wholly unrelated to the latter proceedings and the subject-matter of the present application. The Government added that the inventory check could not have been used to target Rustavi 2 specifically, as any alleged negative consequences would have affected all other television companies in the country equally. (e)     Eavesdropping on Rustavi 2’s premises 56.     Concerning the incident of eavesdropping on the premises of Rustavi   2, the Government submitted documents confirming that, as soon as its Director General had made a public announcement (see paragraph 42 above), the Chief Public Prosecutor’s Office immediately launched a criminal investigation under Article 158 of the Criminal Code (breach of secrecy of private communication). 57.     In the course of that investigation, the Chief of Rustavi 2’s security service, when interviewed on 8 May 2014, stated that on 21 December 2012 he had seen guards of the then President of Georgia, Mr Mikheil Saakashvili, who had been conducting certain technical work, with the use of special devices and a metal folding ladder, in the offices of Rustavi 2’s Director General and Deputy Director General. Having had no advance knowledge of that project, the chief security officer had immediately informed the Director General, N.Gv. The latter, however, had appeared to be calm and advised the former not to worry about anything and “to refrain from any extra initiatives in the future”. 58.     The Chief Public Prosecutor’s Office also obtained, within the framework of the criminal investigation, footage from Rustavi 2’s surveillance cameras dated 21 December 2012 which showed images of men who had been, according to the prosecution authority, identified as former officers of the Special State Protection Service directly subordinated to the former President, Mr Saakashvili. The Government submitted a copy of that footage to the Court. 59.     N.Gv., Rustavi 2’s Director General, was also interviewed by the Chief Public Prosecutor’s Office as a witness. He denied having had a conversation with the television channel’s chief security officer regarding the possible planting of the wire-tapping devices by men associated with President Saakashvili. (f)     Verbal attacks on Rustavi 2 by the GDC 60.     While not contesting the quotations from K.Ka.’s and E.K.’s public interviews concerning Rustavi 2 (see paragraph 43 and 44 above), the Government stated that the applicants had resorted to presenting selective quotations that had been purposefully detached from the overall context of the interviews. The Government emphasised that, since the civil proceedings concerning the ownership row over Rustavi 2 had attracted significant public attention, leading figures of the ruling party, such as K.Ka. and Prime Minister Ivanishvili, had often had questions put by journalists in relation to those proceedings to which they had obviously had to respond. Thus, the Government submitted excerpts from a number of other interviews given by the above-mentioned two public figures. 61.     For instance, on 31 May 2016 K.Ka., when questioned by journalists, stated that “the civil proceedings [concerning Rustavi 2] represented a legal dispute between private parties, to be determined by the courts”, concluding that he was “unable to comment on the legal case.” 62.     As regards E.K.’s claim that Mr Ivanishvili had envisaged gaining control over the independent media in Georgia (see again paragraph 44 above), the Government submitted that that had merely been E.K.’s personal opinion. There was no evidence to support such accusations against the then Prime Minister. On the contrary, the Government submitted documents which disclosed that, shortly after Mr Ivanishvili had become Prime Minister in 2012, he had sold a private TV company, called Channel   9, that he had owned for many years before that. In a public interview dated 19 August 2013, Mr Ivanishvili explained the rationale for his gesture stating that “the idea of [an official in] high political office owning a media company was not acceptable”. 63.     During other public interviews, such as those given by him on 24   October 2015 and 7 June 2016, Mr Ivanishvili, who by that time had already stepped down from the office of Prime Minister, had stated that the civil proceedings concerning Rustavi 2’s ownership had been a purely private dispute, and that the current owners of the company should wait for the final outcome of the dispute, which could very well be in their favour. During the latter interview, he further stated that “even though [he] believe[d] that Rustavi 2 had been disseminating many lies, [he] personally still wish[ed] the TV company to continue broadcasting without any change, for the benefit of the upcoming 2016 parliamentary election.” 64.     As regards the statements of G.T. (see paragraphs 45 and 46 above), the Government again objected that the applicants had been manipulating the Court by submitting only selective information. According to the Government, the truth was that two days after G.T.’s ill-worded statement, the Prime Minister and other senior members of the Government had stated that they had “categorically rejected the personal opinion of the member of parliament [G.T.] concerning Rustavi 2 TV company”. In general, the Government continued, G.T. was known for his extravagant public statements. Owing to his continued disagreements with the GDC, fuelled by his repeated scandalous public statements, G.T. had decided to step down from his parliamentary seat on 9 November 2015 and had quit the party. During the 2016 parliamentary election, G.T., already standing as an opposition candidate, had even contested a seat against the GDC. 65.     On the other hand, the Government submitted that a truly leading figure of the GDC, the then Prime Minister I.Gh., had made the following statements in respect of the Rustavi 2 property row at the material time, that is to say in October-November 2015: “Media freedom is of the utmost importance ... and the parties should let the impartial court reach an unbiased decision. ... [The Government] was happy to see the [Rustavi 2] channel broadcasting during the [civil] proceedings. The outcome of the case is however in the hands of the independent court, and should not be a matter of comment for political gain by any party.” (g)     E.K.’s suicide and K.K.’s claim over the ownership of Rustavi 2 66.     The Government contested the applicants’ reference to E.K.’s suicide as an attempt to make unsubstantiated insinuations with respect to the “tragic incident” (see paragraph 47 above). The suicide case had no relevance whatsoever to the civil proceedings disputed by the applicants. 67.     The Government submitted a copy of the criminal-case-file material relating to E.K.’s suicide. From those documents it appeared that more than six hundred people had been questioned as witnesses and dozens of forensic examinations had been conducted with the participation of E.K.’s family members, lawyers and independent forensic experts nominated by his family members. All these investigative measures had led to the conclusion that E.K. had committed suicide. The Government emphasised that neither E.K.’s family members nor his lawyer had ever officially challenged any of the official findings of the investigation. 68.     As regards the applicants’ claim that K.K. had been a proxy of the GDC (see paragraph 48 above), the Government contested that argument for being unsupported by any tangible evidence. In that connection, they added that K.K. had attempted to claim back ownership of Rustavi 2 as early as 1   December 2008, that is to say long before the GDC had been created (see paragraph 31 above). 69.     The Government also submitted additional information concerning the civil proceedings initiated by K.K. aimed at correcting certain factual errors in the initial account submitted by the applicants. This additional information has been incorporated, where necessary, into the relevant text below (see paragraphs 74-174 below). (h)     Personal threats against Rustavi 2’s Director General 70.     The Government contested N.Gv.’s allegations of blackmail (see paragraph 49 above) as unsubstantiated. They referred to the results of the domestic criminal investigation conducted in that connection. 71.     According to the statements given by N.Gv. to the investigators, he had met on 21 October 2015 with his friend, A.A., who had allegedly conveyed a warning from the GDC that unless he stepped down as the Director General of Rustavi 2 and/or stopped disrupting the civil proceedings initiated by K.K., “they” would make public information about his private life contained in different telephone conversations, including one with the former President of Georgia, Mr Saakashvili, regarding the management of the broadcasting company. 72.     On the basis of N.Gv.’s above-mentioned statements, A.A. had been questioned as a witness. The latter had confirmed his close friendship with N.Gv., as well as the fact that they had met on 21 October 2015. However, A.A. had categorically denied having delivered any type of message from anybody. Both N.Gv. and A.A. confirmed that no one else had been present at their meeting and neither side had recorded their conversation. Consequently, it had not been possible to take any other investigative measures. It had been merely N.Gv.’s word against that of A.A. The investigation had consequently been discontinued for absence of a crime. C.     Judicial determination of the property row over Rustavi 2 73.     The facts concerning the judicial determination of the Rustavi 2 ownership dispute, as submitted by both parties, may be summarised as follows. 1.     Action brought by K.K. 74.     As stated above, on 4 August 2015 K.K., who had been the owner of Rustavi 2 between 2004 and November 2006, lodged with the Tbilisi City Court an action against Rustavi 2, the first applicant, and its owners – the second, third and fourth applicants, as well as N. who owned 9% of the shares in the company (see paragraph 30   above). The two other defendants in the case were H. Ltd and G.-T. Ltd, companies to which K.K. had ceded 100% of his shares in Rustavi 2 by virtue of share-purchase agreements dated 26 December 2005 and 17   November 2006 (see paragraphs 15 and 17 above). 75.     As regards the defendants H. Ltd and G.-T. Ltd, K.K. claimed that he had been coerced into selling his shares in the company to those companies by the leaders of the then governing party, UNM. He claimed that, as the then President Saakashvili had been dissatisfied with the editorial policy of Rustavi 2, he had summoned K.K. into his office and ordered him to cede his shares in the company to the two above-mentioned companies, which had been owned by trusted people from the President’s entourage. President Saakashvili had threatened K.K. by saying that the State would create problems for him and his family in the event that he refused to cooperate. Subsequently, K.K. had met with a number of other high-ranking State officials, such as the Minister of the Interior and the Chief Public Prosecutor, and they had all told him to comply with the President’s instruction. Consequently, K.K. had had no other choice but to sell his shares in the company to the other two companies under share-purchase agreements dated 26 December 2005 and 17   November 2006 for the total price of GEL 571,400 (approximately EUR 214,000). That price, which had been imposed on K.K. by the State, had been far below the actual value of the television channel. In his claim, K.K. thus requested that the impugned agreements be declared null and void ab initio for having been concluded in contravention of legal order and good morals and/or under duress, in accordance with Article 54 and/or 85 of the Civil Code (see paragraphs 183 and 186 below). 76.     In support of his allegation of having been coerced into ceding Rustavi   2, K.K. submitted a valuation report assessing the market value of Rustavi   2. He also referred to the fact that, after having disposed of Rustavi   2 and many of his other business interests in Georgia, he had been obliged to leave the country together with his family for fear of further political persecution, and had been granted political asylum in Germany. In that connection, K.K. also submitted that, when residing in Germany, he had lodged, through his lawyers, a criminal complaint with the Chief Public Prosecutor’s Office on 1 December 2008 (“the criminal complaint of 1   December 2008”), exposing in detail all the circumstances surrounding the threats that he had received from the then President Saakashvili and certain other high-ranking State officials. As an additional proof of the existence of the criminal complaint of 1 December 2008 and of the fact of his political persecution, K.K. attached to his statement of claim the relevant excerpt from the US Department of State’s report on Georgia (see paragraph   223 below). He also attached a copy of his criminal complaints lodged with the Chief Public Prosecutor’s Office on 28 January and 12   March 2009 which reiterated the allegations that he had made in his first criminal complaint of 1 December 2008. 77.     As regards the current owners of Rustavi 2, the second, third and fourth applicants and N., K.K. requested that, should the above-mentioned contracts of 26 December 2005 and 17 November 2006 be declared null and void, his misappropriated property – 100% of shares in Rustavi 2 – should be retrieved from their wrongful possession and returned to him. K.K. also requested that the current owners pay him approximately 18,000,000   United States dollars ((USD) – approximately EUR 15,000,000) for loss of income. 78.     In relation to the first applicant, K.K.’s only claim was for him to be acknowledged as the creator of the channel’s logo and the author of three of its entertainment shows – Fort Boyard , Geo-Bar and Last Hero . K.K. also requested damages from the first applicant in the amount of USD   500,000 (approximately EUR 449,000) for the misuse of his intellectual property. 79.     Pending a decision in the examination of the merits of his action, and in order to secure the proper conduct of the civil proceedings, K.K. also made an application for a preliminary injunction to freeze both Rustavi   2’s own assets as well as the individual owners’ shares in the company, so that the four applicants and N. would be prevented from either disposing of the company or making any other decision which could affect the company’s capital or functioning. As a further injunction measure, he also requested, as regards the copyright part of the dispute, that Rustavi 2 be prohibited from using its logo while the case was being examined. 80.     Later the same day, 4 August 2015, K.K. retracted his application for the preliminary injunction in part, in so far as the request for freezing of Rustavi 2’s bank accounts was concerned. 81.     All four applicants, as well as the two other defendants, H. Ltd and   N., filed their written comments in reply to K.K.’s action. Amongst many other points, two major arguments raised by all the defendants were that K.K.’s action under Article 85 of the Civil Code had been clearly lodged out of time, contrary to Article 89 of the same Code (see paragraph   187 below). They also complained that the claimant had not submitted sufficient evidence in support of his allegation of having been subjected to undue pressure by high-ranking State officials. They stated that “the mere fact of lodging a criminal complaint with the Chief Public Prosecutor’s Office [was] not sufficient to turn the allegation of coercion into an established fact because the civil courts [were] free to establish their own facts during the examination of a dispute”. The applicants and the other respondents also mentioned that the price stipulated in the share-purchase agreements of 26   December 2005 and 17   November 2006 (see paragraphs   15 and 17 above) had more or less corresponded to what K.K. had himself paid for acquiring the shares in the company in 2004 (see paragraphs 12 and   13 above). The second, third and fourth applicants also claimed that they could not be considered as mala fide owners, as they had never had any direct financial dealings with K.K. in respect of the shares in the company. 82.     In their comments, the applicants furthermore emphasised that Article 54 of the Civil Code was not applicable to the facts of the case, which ought to be examined rather under Article 85-89 of the Code. The relevant excerpt from their comments reads as follows: “The legal grounds for allowing the claim [according to K.K.] are Article 54 and Article 85 of the Civil Code of Georgia. However according to the practice of the Supreme Court of Georgia, Article 54 of the Civil Code of Georgia cannot serve as the legal grounds for assessment of contracts made under duress. Articles 85-89 of the same Code should rather apply (see the judgment in case no. AS-1404-1622-05, delivered by the Supreme Court on 28 December 2006). However, in any event, it should be noted that the evidence available in the case and the argument presented by the claimant do not constitute sufficient grounds for the claim to be allowed.” 83.     As to the remaining defendant, G.-T. Ltd, this company failed to submit any comments in reply to K.K.’s action. 2.     Proceedings before the court of first instance 84.     Given that K.K.’s action of 4 August 2015 included, amongst other things, a copyright claim (see paragraph 78 above), it was assigned to Judge   T.U., who was one of the three civil judges specialising in copyright disputes at the Tbilisi City Court. (a)     Procedural issues (i)     Interim injunction of 5 August 2015 – freezing of Rustavi   2’s assets 85.     On 5 August 2015 Judge T.U., who was dealing with K.K.’s application for a preliminary injunction, ruled that both Rustavi   2’s corporate assets and all of the owners’ shares in the company should be frozen while the case was being examined. The company was thus prohibited from interacting with the banking sector for the purposes of taking out loans, and from selling or renting out any of its real and movable property, such as buildings, land, broadcasting equipment, vehicles, and so on. The company was also prohibited from entering into possible mergers and acquisitions or implementing any other changes affecting its corporate structure. With respect to the intellectual-property dispute, the City Court rejected K.K.’s request that the first applicant be prohibited from using the logo of the channel while the case was being examined, as this would hinder the channel’s proper functioning. 86.     However, the company was left free to continue using all of its property unhindered for broadcasting purposes. In addition, the City Court decided not to freeze the bank accounts of the first applicant following the withdrawal of this request by K.K. (see paragraph 80 above) and on the basis that such measures might impede the proper functioning of the first applicant and lead to its bankruptcy. 87.     As regards the owners – the second, third and fourth applicants and N. – Judge T.U. specified that they should be prohibited from entering into any legal relations which could result in either the definitive or provisional disposal of their shares in the company, and that they should abstain from any acts which could have an impact on Rustavi 2’s financial sustainability and normal business activities. 88.     In Judge T.U.’s opinion, the above-mentioned interim measures were necessary to ensure the proper administration of justice in the on-going property row between K.K. and the current owners of the company over Rustavi 2’s shares. (ii)     Other procedural issues 89.     On 18 August 2015 the respondent applicants requested, under Article 26 of the Code of Civil Procedure, that the case be referred from the judge sitting in a single-judge formation to a bench composed of three judges of the Tbilisi City Court. 90.     On the same day they also requested that Judge T.U. recuse himself from the examination of the case altogether because there was a strong belief that the examination of the case had started with “forum shopping” (a process whereby a litigant “shops around” in order to have his or her case heard by a favourable court). The applicants argued that K.K., being aware that Judge T.U. had been the only civil judge specialising in intellectual-property disputes on duty at the Tbilisi City Court on 4 August 2015, had artificially included in his action a clearly unmeritorious copyright claim. 91.     By rulings of 11 and 14   September 2015, Judge T.U. rejected the applicants’ request for referral of the case to a three-judge bench, reasoning that involving three judges in the examination of the case might result in unnecessary delays in the proceedings. As regards the request for recusal, the judge stated that the applicants’ fears were unsubstantiated given