On Thursday, November 5, Judge Tamaz Urtmelidze of the Tbilisi City Court issued a ruling to secure the enforcement of the decision regarding the case of Rustavi 2 on the basis of the application of the plaintiff – the lawyer of Kibar Khalvashi, a businessman affiliated with the Government. According to the decision, temporary administrators have been appointed to the broadcasting company Rustavi 2, and the authority of the current top management team has been suspended. Moreover, the appointed temporary administrators are Revaz Sakevarishvili, the former executive of the TV Imedi, and David Dvali, one of the former shareholders of Rustavi 2.
On November 2, 2015, the Constitutional Court suspended the General Mechanism of Immediate Enforcement of Judgment (Article 268, Paragraph 1, Subparagraph G). The Tbilisi City Court issued the final judgment on the case on November 3; the judgment practically granted 100% of shares to Kibar Khalvashi.
The Ruling Violates the Civil Procedural Law
On November 4, after issuing the Summary Decision, Kibar Khalvashi’s lawyers requested the usage of additional provisions from the Court, which implied the appointment of temporary administrators. On November 5, Judge Urtmelidze ruled in favor of the aforementioned request.
According to the Civil Procedure Code of Georgia, if the Judge takes measures to ensure the enforcement of the decision, this should be indicated in the court decision. Issuing such rulings by the court after the Final Decision is unlawful.
The Ruling Does Not Justify the Necessity of Using Provisional Measures to Ensure Enforcement
The Judge provided no facts or circumstances that would provide grounds for using measures to ensure the enforcement of the decision. It is worth noting that the same Judge has already discussed the usage of provisional measures to ensure enforcement and, among other provisional measures, attached the shares of Rustavi 2. Through this decision, the powers of the top managers of the broadcasting company Rustavi 2 are limited, so that the risks of reducing company finances and assets on their part are eliminated. In addition, the Judge issued an injunction on the television station Sakartvelo Ltd., a shareholder of Rustavi 2. It is clear that in the given conditions, the necessity of using provisional measures and the need for compulsory administration of company property are not justified by the November 5 Ruling.
The Circumstances Used by the Judge to Substantiate the Ruling Can Be Considered as Intervention in the Editorial Policy of an Independent Broadcasting Company
The Court indicated that, "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., Partners), this issue is questionable. Neglect of the indicated purposes consequentially jeopardizes the fundamental purpose of media in a democratic society.” It is evident that such reasoning represents intervention in the formation of the editorial policy and bears no relation to the ongoing lawsuit regarding the shares of Rustavi 2.
As a Result of the Ruling Issued by Judge Urtmelidze, the November 2, 2015 Decision of the Constitutional Court is not enforced in Practice
Through the recording notices, the Constitutional Court suspended the enforcement of the Norm of the Civil Procedure Code of Georgia that determines one of the grounds for immediate enforcement of the judgment of the court of the first instance. Nonetheless, the Ruling issued today will lead to the Decision of the Constitutional Court being circumvented. In fact, through an illegitimate ruling, the Judge bypassed the Decision of the Constitutional Court.
There are Doubts Regarding the Neutrality of the Persons Appointed as Administrators
In its ruling, the court has stated that the "temporary administrator is a neutral person independent from the parties who is not directly involved in the dispute, does not have any property-related interest toward the subject of the dispute, and whose primary and most important responsibility is to protect and preserve the property for the duration of the dispute.” Through his November 5 ruling, the judge appointed as temporary administrators of Rustavi 2 Revaz Sakevarishvili, former director of the Imedi TV station, which is Rustavi 2’s competitor, and Davit Dvali, one of the founders and former shareholders of Rustavi 2. Davit Dvali said in aninterview with Netgazeti that, along with [Rustavi 2 co-founder] Jarji Akimidze, he still has an interest in reclaiming 60 percent of the company’s shares. Dvali also said that he supports Kibar Khalvashi in this process since, in the event of the latter winning the dispute, it will be easier for him to fight to reclaim his share. The press conference held today reaffirmed that there was prior agreement between Mr. Dvali, Mr. Akimidze and Mr. Khalvashi on dividing the shares of Rustavi 2 between Dvali, Akimidze and Khalvashi. Consequently, it is not clear what criteria the judge applied in the process of appointing these individuals.
The Persons Appointed as Administrators through the Court Ruling have been Granted the Power of Dismissing Journalists and Changing the Editorial Policy
The court noted in its ruling that one of the goals of appointing temporary administrators was to avert the danger of the current administration deliberately losing or destroying movable property. Keeping this in mind, it is not clear why the court granted the temporary administrators with powers such as the management of staff policy, including structural reorganization and determining (optimizing) the broadcasting schedule. The court has not provided any explanation that would make it possible to assess the necessity of granting this power. In these circumstances, we believe the Judge’s decision is a direct instruction to interfere with the channel’s editorial policy and makes it possible for the temporary administrators to change the editorial policy and to dismiss members of the TV station’s current editorial team, including the editors and journalists.
The Ruling Restricts the Right of Rustavi 2 Representatives to Appeal to Court
The ruling has awarded the persons appointed as temporary administrators the right of representation vis-a-vis all institutions and bodies. Specifically, the temporary administrators have been awarded the power of granting the right of representation/power of attorney and of revising (concluding, suspending, extending) the granted right of representation/power of attorney. If the TV station’s current lawyers have their power of attorney for the dispute suspended, it will be a clear violation of the fundamental rights of a fair trial and access to court, since they will no longer have the possibility of filing an appeal against this ruling or the summary decision. Moreover, further continuation of the dispute will depend on the decision of the temporary administrators, which have already stated that they are not going to allow Rustavi 2 to challenge the decision of the Tbilisi City Court.
Transparency International Georgia
International Society for Fair Elections and Democracy (ISFED)
Georgia’s Reforms Associates
Economic Policy Research Centre
Atlantic Council of Georgia
Human Rights Education and Monitoring Center (EMC)
Tolerance and Diversity Institute (TDI)
Union of Democrat Meskhs
Partnership for Human Rights
Open Society Georgian Foundation
Civil Development Agency
Article 42 of the Constitution
Media Development Foundation (MDF)
Institute for Development of Freedom of Information
Georgian Democracy Initiative
Black to Baltic Sea Alliance – Georgia
Voice of Georgia