Challenges To Media Plurism: The Case Of Rustavi2

07 December 2015
The beginning of the political season in Georgia has turned out to be detrimental for the independence of both the judiciary and the media. In August 2015, several popular political talk shows stopped airing on Imedi TV, Maestro TV, and the Georgian Public Broadcaster. Moreover, the future broadcasting of the most influential and critical TV channel in Georgia, Rustavi 2 TV, is at stake because of a court dispute over the company’s ownership. On August 4, businessman Kibar Khalvashi, who was a shareholder of Rustavi 2 in 2004-2006, filed a lawsuit against the current owners of the company, alleging that in 2006 he was forced by representatives of the ruling United National Movement to give away his shares in the broadcaster.
During the coverage of information related to the issues of public interest, the method of objective and fair reporting should be used. Under the management of the Defendant (Broadcasting Company Rustavi 2 Ltd) this issue is questionable. Neglect of the indicated purposes consequentially jeopardizes the fundamental purpose of media in a democratic society - Tamaz Urtmelidze[1]
As an interim measure pending a final verdict of the case, on August 5, Tbilisi City Court Judge Tamaz Urtmelidze issued an order banning Rustavi 2’s current shareholders from selling shares and from selling or renting out broadcast equipment, vehicles, and other property owned by the company. The company was also banned from taking out bank or private loans, as well as from using bank guarantees or any other financial instruments. These prohibitions seriously jeopardize the company’s financial sustainability, and the company is incapable of carrying out full-scale management. To overcome these financial difficulties, the company shareholders found an investor who commited to invest 6 million USD in Rustavi 2, by selling the shares of Rustavi 2 TV’s shareholder’s company, Sakatvelo TV. The deal was blocked by a coordinated action of the Public Registry and Tbilisi City Court. Then on October 1, the judge presiding over the case, Urtmelize, issued a disproportionate and excessive court order for freezing all the assets of, Sakartvelo LLC, Rustavi 2’s shareholder company. The ownership dispute over Rustavi 2 is an especially important issue, not only because it concerns a media company, but because Rustavi 2 has the resources and influence to affect public opinion and the power to form critical views of government policies. Since the Georgian Dream coalition came to power in the 2012 parliamentary elections, Rustavi 2 has been critical of the government. Rustavi 2 is a serious encumbrance for the government, particularly so in the run up to the 2016 parliamentary elections. Any interference in Rustavi 2’s activities and it’s ability to broadcast raises doubts that the state is not involved in the process. xalvashi-rvs2-gvaramia Government officials, including the former and current prime ministers, Bidzina Ivanishvili and Irakli Gharibashvili, have numerous times publically expressed their dissatisfaction with Rustavi 2’s editorial policies, and have accused the broadcaster of spreading lies and being in alliance with the United National Movement, which is now in the political opposition. Additionaly, Bidzina Ivanishvili has pledged support to Rustavi 2’s former owners, and encouraged them to file a lawsuit. According to Georgian legislation, there is a one year statute of limitation for transactions entered under duress, which puts into question the admissibility of the lawsuit claim. It is also suspicious that the applicant in the lawuit, businessman Khalvashi, was silent before Bidzina Ivanishvili’s public encouragement. The government and politicians in the Georgian Dream coalition deny any kind of involvement in the case, saying that the dispute is between private entities. However, the case obviously impacts the media environment and is clearly politically motivated. On October 12, it was revealed that there is an ongoing criminal investigation against Judge Urtmelidze’s mother. Rustavi 2 argued that this increases the likelihood of him making biased decisions; they argued he would rule in favour of the plaintiff in order for the case against his mother to end favourably. Even so, the Tbilisi City Court judge refused to recuse himself from the Rustavi 2 case. Judge Urtmelidze stated that his mother does not represent a family member and hence there were no grounds for his preclusion from the case. The Rustavi 2 case is not the first time where the judge was somehow connected with the prosecution. There’s an investigation into the judge who was hearing the criminal case against former Tbilisi mayor Giorgi Ugulava. It raises doubts about the impartiality of judges, particularly because the court is subordinated to the Prosecutor’s Office, which is part of the executive branch of the government.
"During the coverage of information related to the issues of public interest, the method of objective and fair reporting should be used. Under the management of the Defendant (Broadcasting Company Rustavi 2 Ltd) this issue is questionable. Neglect of the indicated purposes consequentially jeopardizes the fundamental purpose of media in a democratic society - Tamaz Urtmelidze[1]"
What is also significant is that the Rustavi 2 case occurred at an accelerated pace. Considering that the courts and judges are overloaded, scheduling five sessions for a case into nine working days is incredible. Finally, on November 3, Tbilisi City Court delivered a verdict practically granting 100% of the Rustavi 2 shares to former owner Kibar Khalvashi. However, one day earlier, the Constitutional Court suspended article 268 (1(z)) of the Civil Procedure Code, meaning that the verdict could only be enforced once the case had gone through all legal levels of appeal. It meant Khalvashi could not immediately take practical steps in managing the broadcaster. The Constitutional Court’s decision was not a deterrent for the judge. On November 5, Judge Urtmelidze issued a decision to appoint a temporary management to Rustavi 2, in order to ensure the enforcement of the November 3 decision over the company’s ownership. The judge declared that broadcaster’s ability for objective and fair reporting under the current management was questionable. As a note, the ability to appoint a temporary management to a media company is not directly provided by the Procedure Code of Georgia and case law. Mr. Urtmelidze’s decision raised public protest and international pressure concerning the freedom of the media. In a joint statement, the U.S embassy and EU diplomatic missions in Tbilisi declared that the preventive measures adopted on November 5, to change the broadcaster’s management, raise serious questions about the independence of the judiciary and the freedom of the media in Georgia. Georgia’s Public Defender said that the court’s November 5 decision was unjustified and violates Rustavi 2’s freedom of speech and expression. He also said that it was evident that the judge was interfering in the formation of the broadcaster’s editorial policy, by pointing out how the TV station should cover issues that are of importance to public interest. The judge claimed that neglecting to cover issues of importance to public interest in an objective way jeopardises the fundamental purpose of the media. The court’s November 5 decision also said that the broadcaster’s temporary managers must be “neutral, independent, and admissible persons for both of the parties.” The selected managers, Revaz Sakevarishvili and Davit Dvali, did not meet that criteria. Sakevarishvili is the former director of Rustavi 2’s competitor channel, Imedi TV, and Dvali is one of the founders and former shareholders of Rustavi2. Dvali is not officially party in the dispute but is an interested party, which is clear from his statements during the dispute. He has never denied his interest to fight to regain his former shares in the company. Moreover the selected managers are not admissible for both of the parties. The General Director of Rustavi 2, Nikoloz Gvaramia, stressed that Sakhevarishvili and Dvali were unsuccessful managers who had brought their media outlets to financial collapse. He was not given the chance to express this opinion before the decision was made. At a press conference on November 6, Kibar Khalvashi affirmed that he had previously agreed to divide his shares in Rustavi 2 between Mr. Dvali and a Mr. Jarji Akimadze, that he would keep 50% and give them 50%. This raises questions about Mr. Khalvashi’s real intentions. Giving away 50% of shares in a profitable company seems to be an unreasonable action from an experienced businessman. There are many indications that the case was governed by the government in order to silence Rustavi 2 during the pre-election period and to gain control of the information space: political leaders making public statements against the broadcaster’s editorial policies; the admissibility of a time-barred claim, the plaintiff’s actions through the court to block the media company’s ability to find financial sources; the disproportionate and excessive orders and decisions issued by the judge; Judge Urtmelidze’s refusing to recuse himself from the case; the judge’s efforts to interfere with the channel’s editorial policy; the plaintiff’s indifferent attitude to his potential property and shares; the “neutral” temporary managers making public statements against the company’s editorial policy. On November 13, the Constitutional Court ordered to suspend the application of the clauses in the Civil Procedure Code under which Judge Tamaz Urtmelidze appointed temporary managers to Rustavi 2. The day before the Constitutional Court’s order, Judge Urtmelidze partly overturned his earlier ruling changing the company’s management and reinstated Rustavi 2’s top management International pressure, public protests, and the decisions of the Constitutional Court have managed to keep the broadcaster’s management in power, allowing them to pursue their desired editorial policies. It is crucial that there is permanent monitoring of this case, to be sure that the govenrment does not manipulate the legal process at the next stage, at the court of appeals. Media pluralism is ever more important as Georgia is approaching an election period and will require a robust media to cover the election environment.     _____________________________ [1] Source: Tranprency International Georgia, The Ruling Of the Constitutional Court of Georgia