Nino Lomjaria, the Public Defender of Georgia, after studying the verdict delivered by Tbilisi City Court on May 16, 2022, by which Nika Gvaramia, former Director General of Rustavi 2 Broadcasting Company, was found guilty in two episodes of Article 220, has addressed President Salome Zourabichvili with a request to exercise her power to pardon Gvaramia. He was sentenced to over 3 years in prison for abuse of powers in May.
Ombudsman Addresses President to Pardon Ex Rustavi 2 Director Gvaramia
By Natalia Kochiashvili
Thursday, June 9, 2022
As a result of the examination of the verdict, the Public Defender considers that the reasoning of the court is unfounded in terms of both conviction and sentencing.
According to the verdict, Gvaramia committed a damaging act against an enterprise, Rustavi 2 TV Company, by changing the terms of the contract related to advertising sales in 2015, as a result of which the managing the TV company failed to receive more revenue.
“Clearly, not all business decisions can become the subject of state criminal assessment. The punishment of a person for a usual business decision violates the main element of the principle of legality - the principle of foreseeability of the norm.
Unfortunately, the court did not consider the cases in which a corporate violation may give rise to a crime and directly concluded that the director not only violated the fiduciary duty but also committed an unlawful and culpable act.” reads the statement.
The Public Defender reiterates that it is inadmissible to ‘punish a manager for his decision when the court fails to substantiate his personal interest, fraud, sole decision, or other criminal action.’
As regarding the so-called car episode, which concerns the sale of Rustavi 2's advertising airtime for less than the market price for 3 months, the court concluded that the reason for this was the personal interest of the director to get a car for his wife from the advertising company in exchange for the above.
“Unfortunately, we do not find even a reference to fiduciary duties or corporate-legal issues regarding this episode in the verdict. The only thing the court finds is that the contract signed by the company provided for less remuneration than the market price. Without entering into the corporate content of the conclusion of the contract or the business judgment rule, it is unclear how the court could conclude, only by establishing differences between the prices, that the contract grossly harmed the interests of the company.”
In addition, the court does not substantiate why it used the specific form or size of sentence. The court provided only one sentence when substantiating the type of sentence (deprivation of liberty), but it did not explain why it sentenced the defendant to 3.5 years in prison or why it did not use more or less strict punishment, in accordance with the disposition of Article 220 of the Criminal Code.
“The court did not use a fine (which it used in the first episode) or house arrest (for unjustified reason), but used imprisonment in an episode, where the damage was about 100 times less than in the first episode. It should be noted that in 2017-2021, imprisonment was not used in any of the cases where defendants were convicted under the above article.”
According to the Ombudswoman, the so-called money laundering episode is the only part of the judgment where the court reasoning contains references to international legal norms and it is noteworthy that the accused was acquitted in this episode.
“However,it is the second case with a political component (the first was the case of Mamuka Khazaradze and others), which includes a completely unfounded charge of money laundering, which, even according to the court, is vague and does not contain conclusive evidence.” read the statement.
The Public Defender stated that charges of such gravity can cause serious reputational damage to any defendant, which is why the Prosecutor's Office should show special caution. In the end, the court avoided answering all the important legal questions.
Consequently, the verdict against Gvaramia, due to the extreme scarcity of legal reasoning, analysis and consistency, can be assessed as essentially unfounded. The judge did not assess at all in which cases the manager's decision could become criminally relevant and why this case was considered to have that dimension, despite the fact that the Public Defender had submitted the opinion of the friend of the court containing detailed legal reasoning and argumentation in the present case. In addition, when discussing factual circumstances, the judge relied on information obtained through the covert investigative action, even though it did not have the right to do so in accordance with the relevant norm. And finally, the judge did not substantiate either the type or size of the measure of imprisonment.
Gvaramia was found guilty of causing a GEL6,7million damage to Rustavi 2 between 2015-2019 through advertising deals, and of obtaining property using profits from the actions.