(Application no. 40765/02)
28 November 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Apostol v. Georgia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr M. Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović,
Mr I. Cabral Barreto, judges,
and Mr S. Naismith, Deputy Section Registrar,
Having deliberated in private on 7 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. First set of proceedings
2. Second set of proceedings
3. Third set of proceedings
4. Fourth set of proceedings
II. RELEVANT DOMESTIC LAW
Article 42 § 1
“Every person has the right to apply to a court for protection of his or her rights and freedoms.”
Article 89 § 1 (f)
“The Constitutional Court of Georgia shall, [...] on the basis of a citizen’s complaint, examine the compatibility of normative acts with the II Chapter of the Constitution.”
The Second Chapter, consisting of Articles 12-47, lists human rights and freedoms.
23. The Constitutional Court Act of 31 January 1996, in force at the material time
“The Constitutional Court of Georgia (hereinafter the Constitutional Court) is the body of constitutional supervision, which shall guarantee the supremacy of the Constitution of Georgia, the constitutional justice, and the protection of the constitutional rights and freedoms of individuals.”
Article 19 § 1 (e)
“On the basis of a constitutional complaint or application, the Constitutional Court shall be competent to examine and decide... upon the issue of constitutionality of normative acts with respect to the II Chapter of the Constitution.”
“The declaration of a statute or another normative act as unconstitutional shall not result in the quashing of the judicial decisions and judgments already taken on the basis of the impugned act. It shall only suspend enforcement proceedings in accordance with the procedural legislation.”
Article 39 § 1 (as amended on 12 February 2002)
“The right to lodge a constitutional complaint with the Constitutional Court in order to challenge the constitutionality of a normative act or the provisions thereof... is vested with:
a) the Georgian nationals, other physical persons residing in Georgia as well as with the Georgian legal persons, if they consider that their rights envisaged by the II Chapter of the Constitution have been or might be directly breached;
b) the Public Defender, if the latter considers that there has been a violation of the human rights and freedoms, set forth in the II Chapter of the Constitution.”
24. The Constitutional Proceedings Act of 21 March 1996, in force at the material time
Article 18 (e)
“The constitutional complaint or application shall be deemed inadmissible if:
e) the disputed issue is not governed by the Constitution.”
25. The Enforcement Proceedings Act of 16 April 1999 (“The Enforcement Act”), in force at the material time
Article 5 § 1 – “The Enforcement Office”
“Bailiffs at Enforcement Offices [of the Ministry of Justice] shall be responsible for the enforcement of the decisions provided for hereunder.”
Article 10 § 1 – “Expenses related to the enforcement...”
“The amount of the expenses related to the enforcement shall be calculated by the bailiff, and may be reviewed during the enforcement process.”
Article 11 – “Enforcement of urgent judgements by bailiffs”
“Bailiffs are entitled to use funds allocated from the State Budget... in order to enforce urgent judgements listed in Article 268 § 1 (a)–(d) of the Code of Civil Procedure...”
Article 17 §§ 1 and 5 – “The bailiff’s rights and obligations”
“Requests by bailiffs in the course of their duties shall be equally binding on any natural or legal person, irrespective of their hierarchical or juridical-organisational status.
Bailiffs shall resort to all lawful measures available in order to secure the speedy and effective enforcement of decisions, to explain to parties their rights and responsibilities, and to assist in the protection of their rights and legal interests.”
Article 26 (as amended on 5 December 2000) – “Initiation of the enforcement action”
“Bailiffs shall initiate enforcement proceedings upon receipt of the enforcement writ and a written application from the creditor. Bailiffs are entitled to refuse to enforce a judgment in the event of non-payment by the creditor of the preliminary expenses provided for by this Act.”
Article 38 § 1 – “Debtor’s liability to cover the expenses”
“Enforcement expenses shall be born by the debtor. They shall be recovered along with the debt.”
Article 39 §§ 1 and 2 – “Expenses related to the enforcement proceedings”
“Funds may be claimed to cover:
a) payments... for services necessarily required for unlocking doors or for unlocking storage facilities;
b) costs associated with the storage of seized articles;
c) expenses related to the giving of public notices;
d) expenses resulting from the detention of a debtor;
e) expenses related to an auction.
The Minister of Justice of Georgia may provide for other expenses paid as well.”
Article 1131 (introduced on 5 December 2000) – “The enforcement fee”
“Prior to adoption of the Enforcement Fees Act, the fee for the payment of judgment debts is introduced and its amount set at 7% of the judgment debt. The creditor shall pay the fee after having received the debt...”
28. Criminal Code
“The non-enforcement of a binding judgment or other judicial decision, or the obstruction of its execution by the State, government or local-government officials or by executives of a corporation or of other organisations [shall be punished] ...”
29. Code of Civil Procedure
Article 268 § 1 (a)-(d) – “Immediately enforceable judgments”
“Pursuant to a party’s request, the court can render the following judgments to be immediately enforced in part or in full:
a) judgments concerning the entitlement to alimony;
b) judgments concerning the entitlement to compensation for damages caused by mutilation or other bodily injury or by death of a caregiver;
c) judgments concerning the employee’s entitlement to loss of salaries of no more than three months;
d) judgments concerning the restoration to office of an unlawfully dismissed person.”
III. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (“Venice Commission”)
“It is to be conceded that decisions by the Constitutional Court may contain some vagueness as regards their execution. The Georgian Legislature, in order to cope with this problem, might take into consideration the solution in the German Law on the Federal Constitutional Court which provides in Article 35: ‘In its decision the Federal Constitutional Court may state by whom it is to be executed; in individual instances it may also specify the method of execution’.”
“22. The existing Article 89.1.f [of the Constitution] already provides for individual access to the Constitutional Court in the form of a so-called ‘non-real’ constitutional complaint (term used in German doctrine) against normative acts. It is welcomed that the draft Article 89.1.f would give this right not only to citizens but to persons in general.
23. In addition to this, draft Article 89.1.f would allow the Constitutional Court to consider the ‘constitutionality of decisions of courts with regards to fundamental human rights and freedoms set forth in the II Chapter of the Constitution on the basis of a claim of an individual or the application by the Public Defender of Georgia.’ The draft thus adds a ‘real’ constitutional complaint also against individual acts – final court decisions.
24. This provision represents a substantial increase in the jurisdiction and powers of the Constitutional Court. The Constitutional Court is given a power of review over the ordinary courts’ decisions where human rights questions are concerned. The fact that the jurisdiction to review can be exercised on the complaint of a citizen creates a powerful new tool for the enforcement of the human rights and fundamental freedoms guaranteed by the II Chapter.”
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
I. First set of proceedings
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
36. The rule of exhaustion of domestic remedies is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 18, § 35). This means, among other things, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicant (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996 IV, pp. 1210-1211, §§ 65-69).
38. The Court observes that neither Article 42 § 1 of the Constitution invoked by the Government in this regard, nor any other constitutional provision, sets forth guarantees against the non-enforcement of binding decisions which are at least remotely comparable to those developed in the Court’s case-law. While a literal reading of the constitutional provision invoked suggests that it actually provides for the right of access to a court, the Government have not referred to any decisions or judgments of the Constitutional Court which, like the Court’s case-law, have inferred the right against non-enforcement from Article 42 § 1 of the Constitution.
II. Second and third sets of proceedings
48. As to the second set of proceedings, the applicant complains of the impossibility to obtain an expert report on the receipt dated 24 September 2002. Referring to the fact that the appellate court delivered its judgment on 15 November 2002, i.e. before the corresponding court fees had been paid on 3 December 2002, the applicant alleges that the judgment was fabricated. He further challenges the fairness of the third set of proceedings, since the hearing, attended by his advocate, was held in his absence.
1. The parties’ submissions
2. The Court’s assessment
58. The Court notes that, invoking Article 26 of the Enforcement Act, the competent authorities imposed on the applicant a financial limitation in the form of an obligation to bear “preliminary expenses”. Those “preliminary expenses”, limiting access to enforcement proceedings, resemble the rule whereby access to civil courts depends on the payment of a court fee.
60. In the present case, the impugned financial restriction was not imposed on the applicant either at first instance, or at the appellate stage of the trial, and could not therefore be considered as being related to the merits of his claim or its prospects of success – considerations which might justify restrictions on the right of access to a court (see, a contrario, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316 B, pp. 80-81, §§ 61 et seq.). The existence of the final and enforceable judgment in the applicant’s favour stands, on the contrary, for the fact that the applicant’s litigation had been meritorious. Consequently, the imposition of the obligation to pay expenses in order to have that judgment enforced constitutes a restriction of a purely financial nature and therefore calls for particularly rigorous scrutiny from the point of view of the interests of justice (see Podbielski and PPU Polpure v. Poland, no. 39199/98, § 65, 26 July 2005).
62. The Court notes that, contrary to the Government’s assertions, neither Article 26 in fine nor any other provision of the Enforcement Act defines which part of the enforcement-related expenses, and for which measures, is incumbent upon the creditor. Nor does it follow from the Enforcement Act that the expenses preliminarily born by the creditor are to be fully reimbursed after the enforcement. In their letters to the applicant, the enforcement authorities did not clarify those issues any better. They did not specify how much the applicant had to pay and for which enforcement measures. The authorities bluntly stated that after the applicant had covered the preliminary expenses, the bailiff would identify the assets of the debtor, seize them and put them up for auction (see paragraphs 9 and 12 above). As to the applicant’s declaration of his indigence, it was left unanswered.
65. In the light of the above considerations, the authorities’ stance of holding the applicant responsible for the initiation of enforcement proceedings by requesting him to bear the preliminary expenses, coupled with the disregard for his financial situation, constituted an excessive burden and restricted his right of access to a court to the degree of impairing the very essence of that right.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If 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.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 28 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Naismith J.-P. Costa
Deputy Registrar President
11. Exchange rate on 29 June 2006.
11. Exchange rate on 29 June 2006.