FIFTH SECTION
\nCASE OF JISHKARIANI v. GEORGIA
\n(Application no. 18925\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n20 September 2018<\/p>\n
FINAL
\n20\/12\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Jishkariani v. Georgia,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:<\/p>\n Angelika Nu\u00dfberger, President, Having deliberated in private on 28 August 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 18925\/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Georgian national, Ms Mariam Jishkariani (\u201cthe applicant\u201d), on 9 January 2009.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr I. Khatiashvili and Ms\u00a0L.\u00a0Mukhashavria, lawyers practising in Tbilisi. The Georgian Government (\u201cthe Government\u201d) were represented by their Agent, Mr\u00a0B.\u00a0Dzamashvili, of the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0The applicant complained that the domestic courts had failed to protect her right to reputation under Article 8 of the Convention against defamatory statements made by the then Minister of Justice.<\/p>\n 4.\u00a0\u00a0On 17 January 2017 the complaint under Article 8 was communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1965 and lives in Tbilisi.<\/p>\n A.\u00a0\u00a0Background<\/strong><\/p>\n 6.\u00a0\u00a0The applicant is a psychiatrist and a founder and director of the Rehabilitation Centre for Victims of Torture \u201cEmpathy\u201d, a non\u2011governmental organisation (\u201cthe NGO\u201d).<\/p>\n 7.\u00a0\u00a0On 4 October 2003 the applicant\u2019s NGO concluded an agreement with the Ministry of Justice (\u201cthe Ministry\u201d) and undertook, among other tasks, to create a psychosocial rehabilitation office in Tbilisi Prison no.\u00a01. The agreement specified that, depending on the availability of resources, the NGO was to involve specialists, use clinical laboratory and diagnostic methods, and provide medication to inmates if treatment was prescribed. It was to provide quarterly progress reports to the Ministry and make suggestions on how to solve the social problems it identified through its activities. The Ministry undertook to support the proper functioning of the rehabilitation office and to designate a coordinator from the Ministry\u2019s Medical Department in order to ensure the implementation of the contract.<\/p>\n 8.\u00a0\u00a0On 3 August 2004 the applicant became member of the Public Monitoring Commission overseeing the implementation of the inmates\u2019 rights and competent to issue recommendations if any irregularities were observed. Presidential order no. 309 issued to that end specified that the members of the Commission could enter all prisons during the working hours without prior authorisation. The persons concerned had the right to meet inmates in private and access any documentation except that which was classified as confidential.<\/p>\n 9.\u00a0\u00a0On 29 November 2004 the then Minister of Justice created the Inmates\u2019 Mental Health Research and Monitoring Commission. It included seven State and non-State mental health experts, including the applicant. The document did not elaborate on the specific functions of the Commission or its members.<\/p>\n 10.\u00a0\u00a0On 10 September 2005 Mr L.Ts. \u2013 an inmate placed in the prison hospital in view of his mental health issues \u2013 physically assaulted the Director and the head doctor of the prison hospital (\u201cthe incident of 10\u00a0September 2005\u201d). He had been transferred to the prison hospital by the director of the Medical Department of the Ministry (\u201cthe Medical Department\u201d), based on the applicant\u2019s medical opinion to that end. In an unrelated incident that happened at around the same time, an inmate died of a complication in his health problems and it was reported that numerous others were waiting in vain to be admitted to the hospital. Both incidents attracted wide media coverage in view of the allegations of corruption and mismanagement in the medical management of the penal system. Some members of the civil society contended that the transfers to the prison hospital were not implemented adequately and objectively but were based on suspicious arrangements within the Ministry.<\/p>\n 11.\u00a0\u00a0On 11 September 2005 an investigation was opened into the incident of 10 September 2005 on account of an alleged abuse of official power. On an unspecified date the applicant was questioned as a witness.<\/p>\n 12.\u00a0\u00a0On 13 September 2005 the then Minister of Justice, Mr K.K. (\u201cthe Minister\u201d) commissioned an internal investigation concerning the activities of the Medical Department of the Ministry carried out between the period of 1\u00a0January 2005 and 13 September 2005. The General Inspectorate of the Ministry was to deliver its findings on 13 October 2005.<\/p>\n B.\u00a0\u00a0Statements made in respect of the applicant<\/strong><\/p>\n 13.\u00a0\u00a0On 16 September 2005, while speaking live on a private television channel, Rustavi 2, about allegations of corruption and mismanagement within the Ministry and its Medical Department, the Minister, Mr\u00a0K.K., stated:<\/p>\n \u201cI am impelled to specify surnames and specific facts… Mariam Jishkariani, the president of non-governmental organisation [Empathy] and a member of the [public] monitoring council [for penal institutions] has been … grossly exceeding her powers and writing medical conclusions concerning specific persons, bypassing the commission [set up for that purpose]. I have those conclusions on my desk. The investigation has them already and practically speaking a full assessment will be carried out which will reveal whether this was done for the sake of pretty eyes or whether it was precisely the type of business that this shameless person \u2013 I cannot call her anything else \u2013 has found for herself. Because it was owing precisely to Jishkariani\u2019s scribbles on a piece of paper that [two allegedly healthy inmates who later assaulted doctors] found themselves in the prison hospital without any legal grounds for that …\u201d<\/p>\n 14.\u00a0\u00a0The Minister further noted that the director of the Medical Department was \u201cthe one who… [relied on] Jishkariani\u2019s illegal notes … not signed by the members of the [medical] commission… to transfer the inmates [to the prison hospital].\u201d He noted that \u201ctherefore he [was] the suspect in these illegal arrangements and \u201c[would] become an object of the investigation along with Jishkariani.\u201d The Minister continued to note that \u201cthere are not only these two facts and the investigation is pending because it was Mariam Jishkariani who was the most important figure and [whose opinions were guiding the director\u2019s actions]…\u201d<\/p>\n 15.\u00a0\u00a0The Minister also criticised the Public Defender and accused his representatives of having a vested interest in transferring certain inmates to the prison hospital.<\/p>\n 16.\u00a0\u00a0The Rustavi 2 TV channel also transmitted brief comments made by representatives of the civil society, including the Public Defender, who were involved in the public monitoring of the prisons (see paragraph 8 above). They noted that the accusations levelled by the Minister had been groundless in view of the fact that the transfers of inmates to and from the prison hospital had been within the exclusive competency of the Ministry.<\/p>\n 17.\u00a0\u00a0The programme also featured the applicant\u2019s brief comment, as recorded by a journalist, that the Minister wanted to have \u201ca monitoring council that [would] not take a peek inside a prison]\u201d and \u201cthe prisons [were] in the same conditions … as those under Saddam Hussein\u2019s regime.\u201d<\/p>\n 18.\u00a0\u00a0On 20 September 2005 the daily newspaper Rezonansi published an interview with the Minister. He discussed allegations of corruption in the management of medical facilities in the penal system. The relevant excerpts of the interview read as follows:<\/p>\n \u201cJournalist:You give two names \u2013 Jishkariani and [the director of the Medical Department] that were involved in corruption. What concrete facts do you have when making such statements?<\/p>\n The Minister:[The director of the Medical Department] was completely under the influence of Mariam Jishkariani. Jishkariani is a psychiatric doctor of non\u2011governmental organisation [Empathy]. That field is very tainted with respect to prisons. Even during Soviet times a lot of money was made on psychiatric reports. Certificates of declarations of insanity were granted to those who were not entitled to them.<\/p>\n It was precisely in her own interests that this lady [referring to the applicant] made a nest in this monitoring council. …<\/p>\n The confrontation started immediately after we uncovered materials where Mariam Jishkariani had signed documents on the transfer of inmates to the prison hospital. It was revealed that there had been healthy people amongst those inmates. …<\/p>\n Journalist:Are you saying that money taken from the inmates was circulating among those people?<\/p>\n The Minister:Only among them. Doctors at the medical department are responsible for the medical reports. Their boss was [the director of the Medical Department]. Jishkariani and others were accomplices. The money they took should either have been brought to me or taken by them. Nothing was brought to me. [The inmates] who assaulted the personnel had been transferred to the prison hospital based on Jishkariani\u2019s medical report even though they are healthy. She had no authority to do that. Is that not a crime? Naturally, Jishkariani could not have committed it alone. She only wrote a report, or to be precise, scribbled something on a piece of paper that was not signed by any of the commission members. Despite this [the director of the Medical Department] ordered the transfer [of the two inmates] to the Republican Hospital.\u201d<\/p>\n C.\u00a0\u00a0Subsequent developments concerning the investigation<\/strong><\/p>\n 19.\u00a0\u00a0On 13 October 2005 the General Inspectorate delivered its report. It principally concerned the actions and omissions of the director of the Medical Department in the management of the transfers of inmates to the prison hospital. The report mentioned the applicant, in brief, and only with respect to one transfer. In particular, it noted that an inmate L.Ts. (see paragraph 10 above) was assessed by the medical commission of the Ministry on 12 January 2005. He was diagnosed with organic personal disorder with periodic episodes of decline. The commission noted that the inmate had been receiving treatment for a mental illness since 2002 and had a second-degree disability status. He had further suffered a head trauma on 8\u00a0January 2005. However the commission did not recommend his transfer to the prison hospital. According to the report, the same inmate was reassessed on 21January 2005 by the applicant who, noting his medical history described above, wrote in the commission\u2019s journal that the inmate needed to be supervised in a psychiatric ward, and prescribed him certain medication. Subsequently, despite the fact that the members of the medical commission did not agree with the applicant\u2019s assessment, \u201cthe director of the Medical Department bypassed the commission and decided \u2013 unilaterally \u2013 to transfer L.Ts. to the prison hospital based on [the applicant\u2019s] medical conclusion [in the journal] … and in doing so he violated … all the relevant rules concerning the prisoners\u2019 transfers to the medical establishment.\u201d<\/p>\n 20.\u00a0\u00a0On 27 December 2007 the investigation into the incident of 10\u00a0September 2005 was discontinued on the grounds of the absence of a crime, as provided under Article 28 \u00a7 1 (b) of the Code of Criminal Procedure (see paragraph 32 below).<\/p>\n D.\u00a0\u00a0Civil-law defamation proceedings instituted by the applicant<\/strong><\/p>\n 21.\u00a0\u00a0On 26 September 2005 the applicant instituted civil-law defamation proceedings against the Minister. She claimed non-pecuniary damages and requested a retraction of the false accusations by the same means as they had been disseminated. According to the applicant, the drafting of recommendations on inmates\u2019 mental health had been part of the agreement of 4 October 2003 (see paragraph 7 above) and that all of her conclusions had been based on verifiable medical documents readily available in inmates\u2019 medical files. The explicit and public allegations of corruption and fraudulent behaviour against her circulated by the Minister through the media outlets were false and devoid of any factual grounds, especially considering that no investigative actions had ever been taken against her. The Minister\u2019s false allegations had had all the more of a negative impact on the applicant\u2019s reputation as a mental health professional because of the Minister\u2019s position as a high-level public official and the public confidence that it invited.<\/p>\n 22.\u00a0\u00a0On 13 April 2006 the Tbilisi City Court dismissed Mr K.K.\u2019s application to discontinue the consideration of the case based on Section\u00a05 of the Freedom of Expression and Speech Act (\u201cthe Act\u201d) (see paragraph\u00a030 below). It reasoned that while a public debate existed on the matter, it was not of a political character for the purposes of that provision as the applicant was not a politician. Yet, according to the court, she could have been considered as a public figure in view of the public attention that her activities had attracted.<\/p>\n 23.\u00a0\u00a0On 22 June 2006 the Tbilisi City Court found against the applicant. In spite of the applicant\u2019s reliance on Article 18 of the Civil Code (see paragraph 31 below), it applied the standards established by the Freedom of Expression and Speech Act (\u201cthe Act\u201d) as lexspecialis. The court concluded that the applicant was a public figure for the purposes of the Act (see paragraph 30 below) in view of her activities in prison (see paragraph\u00a07 above), and that the burden of proving the existence of the three cumulative conditions set out in Section 14 of the Act (see paragraph 30 below) to classify the Minister\u2019s statements as defamation had rested with her.<\/p>\n 24.\u00a0\u00a0The court agreed that the applicant had presented evidence that she was not and had not been a suspect, or otherwise officially accused of violating the law, and concluded that the Minister\u2019s accusations \u201cmay have contained erroneous facts.\u201d However it continued to note that in any event, the other two requirements of Section 14 of the Act had not been met. Namely, according to the court, the applicant had failed to show what harm she had suffered from the false information being disseminated by the Minister in the media, as required by the second condition set by Section 14.<\/p>\n 25.\u00a0\u00a0With respect to the third criterion of whether the Minister had known that the impugned statements were false or had acted with apparent and gross negligence, the court noted the following:<\/p>\n \u201cThe court agrees with the respondent\u2019s argument that Mr K.K. took measures to verify the information before communicating it. The respondent presented Order no.\u00a01640 of the Minister of Justice of Georgia of 13\u00a0September 2005 instructing the General Inspectorate of the Ministry to carry out an inspection of the Medical Department. Thus [the Minister] issued an order aimed at verification three days prior to making the public statement. Accordingly, it is possible that he was in possession of preliminary information about the existence of irregularities. However, the possession of [such information] is not confirmed in the case file. According to the case file, the existence of violations in the medical department is confirmed by the General Inspectorate\u2019s conclusion dated 13 October 2005. Therefore it has not been confirmed that the Minister was aware that the information was false by 16 September 2005. It has also not been proven that he acted with gross negligence when making the statement. [The Minister] scheduled the inspection of a department within the scope of his competence and thus he took measures to verify the information.\u201d<\/p>\n 26.\u00a0\u00a0The Tbilisi City Court concluded that the statements in question had been made as part of an important public discussion surrounding the management of medical facilities in the penal system. It noted that the Minister had enjoyed freedom of expression to voice his opinion about the state of affairs within his Ministry and that his statements had fallen within the limits of acceptable criticism, which it found to be wider in respect of the applicant because of her status as a public figure.<\/p>\n 27.\u00a0\u00a0On 2 July 2007 the Tbilisi Court of Appeal fully upheld the lower court\u2019s judgment. Regarding the third criterion of whether the Minister had known that the impugned statements were false or had acted with apparent and gross negligence, the court noted the following:<\/p>\n \u201cThe Appellate Chamber shares the reasoning of the [lower court\u2019s] judgment that the applicant had failed to demonstrate that [the Minister] was either aware of the falsehood of the disseminated facts, or that [he] acted with apparent and gross negligence which led to the dissemination of a statement containing a substantially false fact.<\/p>\n Civil procedure is based on the principle of adversarial procedure which, in addition to conferring certain rights to the parties, also imposes procedural obligations in their own interest. The failure of a party to abide by [those obligations] will lead to an unfavourable result. This rule stems from Article 4 of the Code of Civil Procedure according to which the parties have an equal possibility to define facts in support of their [position] and they themselves decide which evidence shall confirm those facts. Article 102 of the same Code provides that each party shall prove the circumstances on which it bases its [requests]. \u201d<\/p>\n 28.\u00a0\u00a0The appellate court concluded that \u201cK.K. had a right to voice his opinion about the state of affairs within his Ministry and the applicant, in view of her status as a public figure, was obliged to tolerate it as acceptable criticism.\u201d<\/p>\n 29.\u00a0\u00a0On 16 May 2008 the Supreme Court declared the applicant\u2019s appeal on points of law inadmissible as manifestly ill-founded.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 30.\u00a0\u00a0The relevant provisions of the 2004 Freedom of Speech and Expression Act are as follows:<\/p>\n Section 1(i)<\/p>\n \u201cA public figure [is] an official as defined by Section 2 of … Conflict of Interest and Corruption in Public Service Act; a person whose decision or opinion has an important influence on public life; [or] a person about whom there is public interest as a result of certain actions carried out in relation to particular matters.<\/p>\n Section 5: Freedom of political speech and speech in court<\/p>\n \u201c1. A statement shall not entail liability for defamation if made:<\/p>\n a) in the course of political debates, as well as by a Member of Parliament or [a local self-government body] as part of carrying out his or her duties…\u201d<\/p>\n Section 14: Defamation of a public figure<\/p>\n \u201cA person shall bear responsibility under the civil law for defamation of a public figure if the plaintiff proves in court that the respondent\u2019s statement contains a substantially false assertion in relation to the plaintiff, that the latter suffered damage as a result of the statement, and that the falseness of the assertion was known to the respondent or the latter acted with apparent and gross negligence, which led to the dissemination of a statement containing a substantially false assertion.\u201d<\/p>\n 31.\u00a0\u00a0Article 18 of the Civil Code as it stood at the material time and insofar as relevant, provided as follows:<\/p>\n \u201c…2. A person may protect in court, according to the procedures laid down by law, his or her honour, dignity, privacy, personal inviolability or business reputation from defamation.<\/p>\n 3. If information defaming the honour, dignity, business reputation or privacy of a person has been disseminated through the mass media, it shall be retracted by the same means…<\/p>\n 6. The values referred to in this provision are protected regardless of the culpability of the wrongdoer. If a violation is caused by a culpable action, [the victim] may claim damages. Damages may be claimed in the form of the profit accrued to the wrongdoer. In case of culpable violation, [the victim] may also claim compensation for non-pecuniary (moral) damage…\u201d<\/p>\n 32.\u00a0\u00a0Article 28 \u00a7 1 (b) of the Code of Criminal Procedure (1998) in force at the material time provided that \u201c…a preliminary investigation shall be discontinued … if the [imputed] act is not unlawful.\u201d<\/p>\n 33.\u00a0\u00a0Sections 4, 5, and 23 of the Internal Regulations of the Ministry of Justice (adopted by the Government\u2019s Decree no. 70 of 30 August 2004) as they stood at the material time specified that the Ministry was the entity in charge of, among many other issues: managing the penal system; implementing policies and measures aimed at protecting the rights and well-being of prisoners; preventing and redressing the commission of crimes therein; and through its Medical Department, supervising medical services in prisons, including the prison hospital, and the inmates\u2019 placement therein. According to the Internal Regulations of the General Inspectorate of the Ministry of 11 February 2002, the General Inspectorate was under the direct supervision and authority of the Minister.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 34.\u00a0\u00a0The applicant complained that the domestic courts\u2019 refusal to protect her reputation against the publicly voiced unconfirmed accusations of corruption and fraudulent behaviour by the then Minister of Justice amounted to a violation of her rights under Article\u00a08 of the Convention. The provision in question reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n 35.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 36.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 37.\u00a0\u00a0The applicant submitted, among other arguments, that the Minister had publicly accused her of criminal behaviour without any factual grounds available to him either at the time those statements were made or at a subsequent stage. She maintained that the commissioning of an internal investigation on the matter just before making the impugned statements without waiting for its outcome could hardly be regarded as complying with his due diligence obligation to verify the information.<\/p>\n 38.\u00a0\u00a0The applicant further submitted that the domestic courts\u2019 refusal to protect her reputation as a mental health professional against the unfounded factual accusations by such a high-level Government official amounted to a violation of her right to reputation under Article 8 of the Convention.<\/p>\n 39.\u00a0\u00a0The Government submitted that the interference, if any, in the applicant\u2019s right to reputation, was not of such severity to attract the protection of Article 8 of the Convention. They maintained that the Minister\u2019s statements were made in the context of a public debate surrounding the question of medical management of the penal system, and the applicant participated therein by responding to the Minister\u2019s accusations publicly. They reiterated the findings of the domestic courts that the applicant was to be regarded as a public figure due to her activities in the penal institutions in view of which the limits of permissible criticism towards her were wider.<\/p>\n 40.\u00a0\u00a0In the Government\u2019s opinion, the domestic courts correctly applied the standards established in the European Court\u2019s case-law while balancing the applicant\u2019s right to reputation under Article 8 of the Convention against the Minister\u2019s freedom of expression and the public\u2019s right to receive information concerning an important topic. They further maintained that in view of the wide margin of appreciation afforded to States, the domestic courts had an exclusive competence to maintain balance between the freedom of expression and the right to private life under the Convention. Furthermore, in view of the decriminalisation of defamation, the legislative trend at domestic level had been shifted in favour of the freedom of expression.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 41.\u00a0\u00a0The Court reiterates the principles it has established in its case-law concerning the protection afforded by Article 8 to the right to reputation as part of the right to respect for private life (see, among other authorities, Von Hannover v.Germany (no. 2) [GC], nos. 40660\/08 and 60641\/08, \u00a7\u00a795-99, ECHR 2012, Axel Springer AG v.Germany [GC], no. 39954\/08, \u00a7\u00a7 82-84, 7\u00a0February 2012, and Pfeifer v. Austria, no. 12556\/03, \u00a7\u00a035, 15\u00a0November 2007).\u00a0In order for Article 8 to come into play, an attack on a person\u2019s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Delfi ASv. Estonia[GC], no. 64569\/09, \u00a7\u00a0137, ECHR 2015, andMed\u017elisIslamskeZajedniceBr\u010dko and Others v. Bosnia and Herzegovina [GC], no. 17224\/11, \u00a7 76, 27June 2017). In cases that concerned allegations of criminal conduct the Court also took into account that under Article 6 \u00a7\u00a02 of the Convention individuals have a right to be presumed innocent of any criminal offence until proved guilty (see, among other authorities, Worm v. Austria, 29 August 1997, \u00a750, Reports of Judgments and Decisions 1997\u2011V; and Du Roy and Malaurie v. France, no.\u00a034000\/96, \u00a7 34, ECHR 2000-X).<\/p>\n 42.\u00a0\u00a0The choice of the means calculated to secure compliance with Article\u00a08 of the Convention is in principle a matter that falls within the Contracting States\u2019 margin of appreciation, whether the obligations on the State are positive or negative. Likewise, under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression protected by this provision is necessary (see Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy v. Finland [GC], no. 931\/13, \u00a7 162, 27June 2017, and Couderc and Hachette Filipacchi Associ\u00e9sv. France [GC], no. 40454\/07, \u00a7\u00a090, ECHR 2015 (extracts)). However, this margin goes hand in hand with European supervision by the Court, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see, among other authorities, Von Hannover (no. 2), cited above, \u00a7105, and EgillEinarssonv. Iceland, no. 24703\/15, \u00a7 36, 7 November 2017).<\/p>\n 43.\u00a0\u00a0In cases of the type being examined here, the main issue is whether the State, in the context of its positive obligations under Article 8, has achieved a fair balance between an individual\u2019s right to protection of reputation and the other party\u2019s right to freedom of expression guaranteed by Article10 of the Convention (see Von Hannover (no. 2), cited above, \u00a7\u00a098, andPfeifer, citedabove, \u00a738). In cases which require the right to respect for private life to be balanced against the right to freedom of expression, the outcome of the application should not, in theory, vary according to whether it has been lodged with the Court under Article 8 of the Convention or under Article10. Indeed, as a matter of principle these rights deserve equal respect. Accordingly, the margin of appreciation should in theory be the same in both cases (see Couderc and Hachette Filipacchi Associ\u00e9s, cited above, \u00a7 91).<\/p>\n 44.\u00a0\u00a0The Court has distinguished between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article\u00a010. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it could be excessive (see Pfeifer, cited above, \u00a7\u00a046, with further references). The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. The Court may, however, consider it necessary to make its own assessment of the impugned statements (see EgillEinarsson, cited above, \u00a7 48).<\/p>\n 45.\u00a0\u00a0When exercising its supervisory function, the Court\u2019s task is not to take the place of the national courts but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their power of appreciation are compatible with the provisions of the Convention relied on (see, among other authorities, SatakunnanMarkkinap\u00f6rssi Oy and Satamedia Oy, cited above, \u00a7 164). Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court\u2019s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts (see B\u00e9dat v. Switzerland [GC], no.\u00a056925\/08, \u00a7\u00a054, ECHR 2016, with further references).<\/p>\n 46.\u00a0\u00a0The Court has indicated various relevant criteria for balancing the right to respect for private life against the right to freedom of expression (see, among other authorities, Axel Springer AG, cited above,\u00a7\u00a7\u00a089-95; Von Hannover (no. 2), cited above, \u00a7\u00a7\u00a0108-113; and Couderc and Hachette Filipacchi Associ\u00e9s, cited above, \u00a7\u00a093). In the circumstances of the present case, the Court finds it appropriate to consider the following applicable criteria: the contribution to a debate of general interest, how well\u2011known the applicant was and the nature of her prior conduct, subject of the statements, the content, form and consequences of the statements, and the method of obtaining the information and its veracity.<\/p>\n (b)\u00a0\u00a0Application of the above principles to the present case<\/p>\n (i)\u00a0\u00a0Seriousness of the accusations underlying the Minister\u2019s statements<\/p>\n 47.\u00a0\u00a0The publicly voiced clear insinuations by the Minister that the applicant, together with the director of the Medical Department of the Ministry, had been involved in the issuing of wrong medical reports concerning prisoners\u2019 health in exchange for money, and that she was under criminal investigation (see paragraphs 13-14 and 18 above) were serious. They gave the impression that she had committed crimes, and must have affected her reputation as a medical professional and an active representative of the civil society. Therefore, the accusations attained a requisite level of seriousness as they could harm the applicant\u2019s reputation under Article\u00a08 of the Convention.<\/p>\n (ii)\u00a0\u00a0Contribution to a debate of general interest<\/p>\n 48.\u00a0\u00a0The Court agrees with the domestic courts\u2019 assessment that a debate on an important subject of general interest existed at the material time. The incident of 10 September 2005 and another episode involving the death of a prisoner owing to the alleged lack of medical treatment (see paragraph\u00a010 above) prompted a discussion about whether the prisons and their medical services were managed properly by the responsible institutions. The security, health and well-being of inmates and their timely hospitalisation constituted matters which affect the public to such an extent that it may legitimately take an interest in them and attracted wide media coverage (see, among other authorities, Couderc and Hachette Filipacchi Associ\u00e9s, cited above, \u00a7\u00a0103).<\/p>\n 49.\u00a0\u00a0In the circumstances of the present case, the statements aimed at clarifying the procedures and possible deficiencies in the management of the medical services of the prisons were part of a public debate on the matter.<\/p>\n (iii)\u00a0\u00a0How well-known the applicant was, the applicant\u2019s conduct prior to the dissemination of the impugned statements, and the subject of the statements<\/p>\n 50.\u00a0\u00a0The Court observes that the applicant, an established mental health professional and an active member of civil society, as well as the person responsible for the inmates\u2019 rehabilitation project in prison and a member of the Inmates\u2019 Mental Health Research and Monitoring Commission (see paragraphs 6\u20119 above) was regarded by the domestic courts as a public figure rather than a private person for the purposes of the Freedom of Speech and Expression Act (see paragraphs 22 and30 above).<\/p>\n 51.\u00a0\u00a0The debate and the impugned statements did not concern the applicant\u2019s private life but her public activities in the abovementioned domain. Considering the applicant\u2019s position and activities in prison, including the medical assessment of prisoners (see paragraphs 6\u201110 above), the Court does not see any reason to depart from the domestic courts\u2019 finding concerning the applicant\u2019s status as a public figure, acting in an official capacity, the extent of acceptable criticism in her respect being thus wider than in respect of ordinary citizens (see F\u00fcrst-Pfeifer v. Austria, nos.\u00a033677\/10 and 52340\/10, \u00a7 46, 17May 2016).<\/p>\n (iv)\u00a0\u00a0The content, form and consequences of the statements<\/p>\n 52.\u00a0\u00a0The Court has already noted that the Minister\u2019s accusations were serious and gave the impression that the applicant had committed crimes (see paragraph 47above). Yet, the domestic courts concluded that the statements constituted the Minister\u2019s opinions aimed at contributing to an important public discussion on the matter, to be tolerated by the applicant in view of her status as a public figure (see paragraphs 26 and 28 above). They therefore held, in essence, that the impugned statements constituted value judgments which were not excessive. However, none of the domestic courts elaborated on how a serious factual allegation against a named individual could constitute a value judgment and contribute to a debate of general interest.<\/p>\n 53.\u00a0\u00a0In the circumstances of the present case, even assuming that the Court were to accept the classification of the accusation voiced against the applicant as a value judgment, the Court reiterates that under its settled case-law, even where a statement amounts to a value judgment there must exist a sufficient factual basis to support it, failing which it will be excessive (see EgillEinarsson, cited above, \u00a7 52, and Pfeifer, cited above, \u00a746, with further references).<\/p>\n 54.\u00a0\u00a0The Court will therefore consider the veracity of the statements made by the Minister which, owing to his position, carried particular weight and invited the confidence of the public. This prompted all the more the need to verify their accuracy.<\/p>\n (v)\u00a0\u00a0Method of obtaining the information and its veracity<\/p>\n 55.\u00a0\u00a0The Minister had argued that the inmate implicated in the incident of 10\u00a0September 2005 and transferred to the prison hospital on the basis of the applicant\u2019s medical note had in fact been healthy (see paragraphs\u00a013 and 14 above), and the applicant was not entitled to make entries in the journal concerning inmates\u2019 health (see ibid.). He also clearly insinuated that the applicant had been involved in a corrupt scheme of issuing wrong medical conclusions in respect of healthy inmates so that the latter would be transferred to the prison hospital in exchange for money (see paragraph\u00a018 above).<\/p>\n 56.\u00a0\u00a0As concerns the first element, the domestic courts did not answer the applicant\u2019s argument that the medical documentation of the relevant inmate demonstrated that he had suffered from various health issues (see paragraph\u00a021 above). The Court notes that while the inmate implicated in the incident of 10\u00a0September 2005 was transferred to the prison hospital based on the applicant\u2019s medical assessment of him (see paragraphs 10 and\u00a019 above), the findings of the General Inspectorate of the Ministry delivered after the impugned statements were made confirmed, as the applicant had argued, that the inmate in question was in fact suffering from various health issues, including mental problems and a head trauma (see paragraph\u00a019 above).<\/p>\n 57.\u00a0\u00a0As for the applicant\u2019s competency to make entries concerning the inmates\u2019 health in the relevant journal, the domestic courts did not rule on the matter.<\/p>\n 58.\u00a0\u00a0However, even assuming that the second element of the Minister\u2019s accusation had been true and could have invited criticism towards the applicant, the main aspect of the Minister\u2019s statements and the civil litigation instituted by the applicant concerned the third element of the Minister\u2019s allegations, namely the veracity of the serious accusation that the applicant had issued wrong medical reports, placing healthy inmates in the prison hospital in exchange for money.<\/p>\n 59.\u00a0\u00a0In this connection, the domestic courts agreed that the applicant had never been criminally investigated, and that the Minister\u2019s accusations \u201cmay have contained erroneous facts\u201d (see paragraph24 above). Furthermore, the criminal investigation opened into the incident of 10 September 2005 (see paragraph 10 above) which, as it appears from the case file, may have partly concerned the broader issue of mismanagement and corruption in the medical department of the Ministry, was discontinued on the grounds of the absence of a crime (see paragraphs 20 and 24above). Therefore, the Minister\u2019s accusations, even assuming that the Court were to accept the classification of the statements as value judgments, lacked a sufficient factual basis. Yet the domestic judicial authorities considered that the Minister had made an effort to verify the information before making his statements by commissioning an internal investigation on the matter (see paragraphs 25 and 27 above).<\/p>\n 60.\u00a0\u00a0The question that remains to be answered is whether the Minister had demonstrated due diligence in an attempt to verify the information he spread. The domestic legislation as applied by the domestic courts to the applicant\u2019s case required the applicant, not the Minister, to prove not only the falseness of the accusation levelled against her and the damage sustained, but also that the Minister had acted with apparent and gross negligence in disseminating the otherwise uncorroborated accusations (see paragraph 30 above).<\/p>\n 61.\u00a0\u00a0Against this background, and bearing in mind the principles established by the Court when balancing rights and freedoms under Articles\u00a08 and 10 of the Convention (see paragraphs 41-46 above), the Court cannot accept the finding of the domestic courts that the Minister had shown due diligence in attempting to verify the veracity of the claims he had made or that the applicant had failed to demonstrate lack of diligence on his part (see paragraph 27 above). While the Minister had in fact commissioned an internal investigation, he did not wait for its completion. Nor was he in possession of other verified information against the applicant (see paragraphs 24-25 above). Therefore, commissioning an inquiry without waiting for its outcome cannot be considered to be an effort living up to the standard of due diligence.<\/p>\n 62.\u00a0\u00a0The Court reiterates in this connection thatthe Convention cannot be interpreted to require individuals to tolerate, in the context of their rights under Article 8 of the Convention, being publicly accused of criminal acts by Government officials who are expected by the public to possess verified information concerning those accusations, without such statements being supported by facts (see, mutatis mutandis, EgillEinarsson, cited above, \u00a7\u00a052).<\/p>\n 63.\u00a0\u00a0In the light of the foregoing, the Court is not convinced that the reasons advanced by the domestic courts for protecting the Minister\u2019s freedom of expression outweighed the right of the applicant to have her reputation safeguarded. The Court therefore considers that the domestic courts failed to strike a fair balance between the competing interests involved.<\/p>\n There has accordingly been a violation of Article 8 of the Convention.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 64.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 65.\u00a0\u00a0The applicant claimed 335,775 euros (EUR) in respect of pecuniary damage with regard to the alleged loss of income. She also sought EUR\u00a0100,000 in respect of non-pecuniary damage.<\/p>\n 66.\u00a0\u00a0The Government submitted that the applicant\u2019s claims were not duly substantiated, and that in any event, there was no link whatsoever between the alleged violation of the Convention and the damage, if any. They considered the applicant\u2019s claims for non-pecuniary damage to be excessive and invited the Court to make an award on an equitable basis should it find a violation of the Convention.<\/p>\n 67.\u00a0\u00a0The Court rejects the applicant\u2019s claim for pecuniary damage as unsubstantiated. As regards the non-pecuniary damage, the Court considers that the applicant must have suffered distress as a result of being falsely accused of criminal activities by a high-level Government official and the domestic courts\u2019 failure to protect her right to reputation which would not be adequately compensated for by the mere finding of a violation. Taking into account the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 1,500 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 68.\u00a0\u00a0The applicant also claimed EUR 233 for the costs and expenses incurred before the domestic courts, EUR 36 for the postage fee, and EUR\u00a03,200 for legal costs of her two representatives before the Court.<\/p>\n 69.\u00a0\u00a0The applicant asserted that her representatives had spent 32 hours each at the rate of EUR 50 on the Court proceedings. In support of this claim, the applicant submitted a contract dated 14 February 2017 concluded with Mr I. Khatiashvili. The latter document specified that the applicant was to pay the relevant sum to Mr Khatiashvili if the European Court established a violation of her rights under Article 8 of the Convention. As regards the applicant\u2019s second representative, Ms L. Mukhashavria, the applicant only submitted the first page of a supposed contract.<\/p>\n 70.\u00a0\u00a0The Government objected to these claims. They noted that the document submitted in respect of Ms L. Mukhashavria was incomplete, lacked signatures, did not reflect any contractual obligations, and was in any event excessive in view of the work carried out by the applicant\u2019s primary representative, Mr I. Khatiashvili. As regards the court fees incurred before the domestic courts, the Government disagreed that the evidence submitted by the applicant was sufficient to demonstrate the payment of such fees. Finally, the postage fee was paid by the NGO Empathy, not the applicant, and the latter had failed to show that it related to her application.<\/p>\n 71.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,600 in respect of the applicant\u2019s representation before the Court by Mr I. Khatiashvili and EUR 233 in respect of the expenses incurred at domestic level.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 72.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaint under Article 8 of the Convention admissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 8 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 \u00a7 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 1,500 (one thousand five hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 1,833 (one thousand eight hundred and thirty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 20 September 2018, pursuant to Rule 77 \u00a7\u00a7 2 and 3 of the Rules of Court.<\/p>\n Claudia Westerdiek\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Angelika Nu\u00dfberger
\nYonko Grozev,
\nAndr\u00e9 Potocki,
\nM\u0101rti\u0146\u0161 Mits,
\nGabriele Kucsko-Stadlmayer,
\nL\u04d9tifH\u00fcseynov,
\nLadoChanturia, judges,
\nand Claudia Westerdiek, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n