5.  The applicant was born in 1965 and lives in Tbilisi.
6.  The applicant is a psychiatrist and a founder and director of the Rehabilitation Centre for Victims of Torture “Empathy”, a non‑governmental organisation (“the NGO”).
7.  On 4 October 2003 the applicant’s NGO concluded an agreement with the Ministry of Justice (“the Ministry”) and undertook, among other tasks, to create a psychosocial rehabilitation office in Tbilisi Prison no. 1. 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’s Medical Department in order to ensure the implementation of the contract.
8.  On 3 August 2004 the applicant became member of the Public Monitoring Commission overseeing the implementation of the inmates’ 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.
9.  On 29 November 2004 the then Minister of Justice created the Inmates’ 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.
10.  On 10 September 2005 Mr L.Ts. – an inmate placed in the prison hospital in view of his mental health issues – physically assaulted the Director and the head doctor of the prison hospital (“the incident of 10 September 2005”). He had been transferred to the prison hospital by the director of the Medical Department of the Ministry (“the Medical Department”), based on the applicant’s 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.
11.  On 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.
12.  On 13 September 2005 the then Minister of Justice, Mr K.K. (“the Minister”) commissioned an internal investigation concerning the activities of the Medical Department of the Ministry carried out between the period of 1 January 2005 and 13 September 2005. The General Inspectorate of the Ministry was to deliver its findings on 13 October 2005.
13.  On 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 K.K., stated:
“I 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 – I cannot call her anything else – has found for herself. Because it was owing precisely to Jishkariani’s 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 ...”
14.  The Minister further noted that the director of the Medical Department was “the one who... [relied on] Jishkariani’s illegal notes ... not signed by the members of the [medical] commission... to transfer the inmates [to the prison hospital].” He noted that “therefore he [was] the suspect in these illegal arrangements and “[would] become an object of the investigation along with Jishkariani.” The Minister continued to note that “there 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’s actions]...”
15.  The Minister also criticised the Public Defender and accused his representatives of having a vested interest in transferring certain inmates to the prison hospital.
16.  The 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.
17.  The programme also featured the applicant’s brief comment, as recorded by a journalist, that the Minister wanted to have “a monitoring council that [would] not take a peek inside a prison]” and “the prisons [were] in the same conditions ... as those under Saddam Hussein’s regime.”
18.  On 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:
“Journalist: You give two names – Jishkariani and [the director of the Medical Department] that were involved in corruption. What concrete facts do you have when making such statements?
The Minister: [The director of the Medical Department] was completely under the influence of Mariam Jishkariani. Jishkariani is a psychiatric doctor of non‑governmental 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.
It was precisely in her own interests that this lady [referring to the applicant] made a nest in this monitoring council. ...
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. ...
Journalist: Are you saying that money taken from the inmates was circulating among those people?
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’s 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.”
19.  On 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 January 2005. However the commission did not recommend his transfer to the prison hospital. According to the report, the same inmate was reassessed on 21 January 2005 by the applicant who, noting his medical history described above, wrote in the commission’s 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’s assessment, “the director of the Medical Department bypassed the commission and decided – unilaterally – to transfer L.Ts. to the prison hospital based on [the applicant’s] medical conclusion [in the journal] ... and in doing so he violated ... all the relevant rules concerning the prisoners’ transfers to the medical establishment.”
20.  On 27 December 2007 the investigation into the incident of 10 September 2005 was discontinued on the grounds of the absence of a crime, as provided under Article 28 § 1 (b) of the Code of Criminal Procedure (see paragraph 32 below).
21.  On 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’ 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’ 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’s false allegations had had all the more of a negative impact on the applicant’s reputation as a mental health professional because of the Minister’s position as a high-level public official and the public confidence that it invited.
22.  On 13 April 2006 the Tbilisi City Court dismissed Mr K.K.’s application to discontinue the consideration of the case based on Section 5 of the Freedom of Expression and Speech Act (“the Act”) (see paragraph 30 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.
23.  On 22 June 2006 the Tbilisi City Court found against the applicant. In spite of the applicant’s 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 (“the Act”) as lex specialis. 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 7 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’s statements as defamation had rested with her.
24.  The 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’s accusations “may have contained erroneous facts.” 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.
25.  With 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:
“The court agrees with the respondent’s argument that Mr K.K. took measures to verify the information before communicating it. The respondent presented Order no. 1640 of the Minister of Justice of Georgia of 13 September 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’s 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.”
26.  The 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.
27.  On 2 July 2007 the Tbilisi Court of Appeal fully upheld the lower court’s 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:
“The Appellate Chamber shares the reasoning of the [lower court’s] 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.
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]. ”
28.  The appellate court concluded that “K.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.”
29.  On 16 May 2008 the Supreme Court declared the applicant’s appeal on points of law inadmissible as manifestly ill-founded.