AS TO THE ADMISSIBILITY OF
by Eter KHVICHIA and Others
The European Court of Human Rights (Second Section), sitting on 23 June 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
and Sally Dollé , Section Registrar,
Having regard to the above application lodged on 31 May 2006,
Having regard to the parties’ observations,
Having deliberated, decides as follows:
The first applicant, Mrs Eter Khvichia, was born in 1953 and lives in Khelvatchauri. The second and third applicants, Mrs Darejan Skhireli and Mrs Gulnara Vatsadze, were born in 1953 and 1954 respectively and live in Kutaisi. The fourth applicant, Mrs Maia Kuparashvili, was born in 1976 and lives in Khobi. All the applicants are Georgian nationals and were represented before the Court by Mr Mitrophane Sturua, a lawyer practising in Tbilisi. The respondent Government were represented by their Agent, Mr David Tomadze of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
By virtue of a binding judgment of the Kutaisi Regional Court dated 17 January 2001, the Ministry of Transport and Communications of Georgia, the Georgian Maritime Department and several private persons were ordered to pay the applicants pecuniary and non-pecuniary damages for the harm caused by the deaths of their husbands, who had drowned in a shipwreck on 14 February 1998.
The judgment debt consisted of payments in the form of a lump sum and monthly allowances, the latter obligation arising with effect from 15 February 1998. The practical arrangements for payment of the judgment debt were not specified.
On 6 April and 15 May 2006 the applicants complained to the Enforcement Department of the Ministry of Justice that they had not received their allowance for the past forty-eight months; the corresponding arrears amounted to some 61,000 United States dollars (USD) (44,708 euros (EUR))1.
In a reply of 29 May 2006 the Enforcement Department, officially classifying the applicants’ case as of high importance, pledged to undertake specific enforcement measures with the aim of paying the above-mentioned arrears without delay.
On 31 May 2006 the applicants complained, under Article 1 of Protocol No. 1, that the enforcement authorities had failed to retrieve from the debtors the allowance awarded by the court in the approximate amount of USD 61,000 (EUR 44,708) and requested as a claim for just satisfaction under Article 41 of the Convention that, in future, payments under the binding judgment of 17 January 2001 be made to them at home and on a more frequent basis.
The complaint under Article 1 of Protocol No. 1 concerns the applicants’ inability to receive the allowance arrears in the approximate amount of USD 61,000 (EUR 44,708). The provision relied on reads, in its relevant part, as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions...”
1. The procedure before the Court and the parties’ submissions
In a letter of 4 July 2006 the Registry of the Court acknowledged receipt of the application and reminded the applicants of their obligation to inform the Court, of their own motion, about any major developments regarding the case.
On 19 December 2007 notice of the application was given to the Government; the applicants were duly informed by fax on the same day. The Registry of the Court communicated to both parties a statement of the facts of the case, according to which the arrears of approximately USD 61,000 (44,708 EUR) were still due to the applicants.
In their observations of 9 April 2008 the Government submitted documentation accounting for the payments made by the Enforcement Department in the applicants’ favour under the binding judgment debt of 17 January 2001 between September 2003 and December 2007. As disclosed by those submissions, after the introduction of the present application to the Court on 31 May 2006, the applicants were paid, on 25 and 26 July 2006, the amount of 102,551.06 Georgian laris ((GEL) EUR 45,323). On 20 and 24 December 2007 they were paid a further GEL 33,172.33 (EUR 14,692). The latter two payments were made by bank transfer, unlike the previous ones, which had been handed over to the applicants in cash in Tbilisi.
Relying on those facts, the Government stated that the applicants had acted mala fides in that they had not informed the Court about the payments received on a regular basis. This important information showed that the authorities had continuously honoured their obligations under the judgment of 17 January 2001.
The Government further stated that the application should in any case be rejected for non-exhaustion of domestic remedies such as the institution of criminal and/or administrative proceedings against the competent bailiffs of the Enforcement Department.
The applicants replied that the information contained in the original application, notably the complaint about their inability to receive approximately USD 61,000 (EUR 44,708) for arrears of the monthly allowance, corresponded to the reality at the time of its introduction on 31 May 2006. In support, they submitted the Enforcement Department’s letter of 27 June 2006 acknowledging that, by 15 June 2006, the applicants were to be paid the allowance for the past 46-50 months, the exact number of months varying depending on the applicant, in the overall amount of USD 59,218 (EUR 43,282).
The applicants also stated that it was only after the communication of the application to the Government that the authorities had, on 20 and 24 December 2007, settled the arrears in the applicants’ favour. Their submissions further disclosed that the Enforcement Department had continued paying the allowance afterwards. Thus, on different dates in April, May and July 2008, the applicants had received, in toto, GEL 11,514 (EUR 5,107) by bank transfer. Nevertheless, the applicants still denounced the frequency of those payments as insufficient.
Lastly, referring to the Court’s relevant case-law, the applicants stated that the initiation of either criminal or administrative proceedings against the Enforcement Department would have been a futile remedy for the purposes of Article 35 § 1 of the Convention.
2. The Court’s assessment
The Court observes that the applicants’ failure to receive the allowance arrears in the estimated amount of USD 59,218-61,000 (EUR 43,282-44,708) was their core complaint raising an issue under Article 1 of Protocol No. 1. Those arrears, however, were fully paid to them on 25 and 26 July 2006, that is, less than two months after the introduction of the application on 31 May 2006. Subsequently, more payments were made in their favour in December 2007 and April, May and July 2008.
The Court points out that, according to Rule 47 § 6 of the Rules of Court, applicants must keep the Court informed of all circumstances relevant to the application. The applicants were duly reminded of this obligation on 4 July 2006.
It should be reiterated in this connection that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Varbanov v. Bulgaria no. 31365/96, § 36, ECHR 2000-X; Popov v. Moldova, no. 74153/01, § 48, 18 January 2005; Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004; Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006). Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hadrabova v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007).
In the circumstances of the present case the applicants, represented by legal counsel in the proceedings before the Court, did not furnish any plausible explanation for the failure to inform the Court that they had received, on 25 and 26 July 2006 – that is, well before notice of the application was given to the Government – GEL 102,551.06 (EUR 45,323), which fully made up for the arrears sought by the introduction of the present application. By not communicating such important information, contrary to their obligations under Rule 47 § 6 of the Rules of Court, the applicants prevented the Court, at the stage of preliminary examination of the admissibility of the case, from assessing the fact that the Enforcement Department, further to its pledge of 29 May 2006, had taken the enforcement measures necessary to ensure payment of the arrears. Nor did the applicants take the trouble to update the Court on the payments made on 20 and 24 December 2007, that is, shortly after the communication of the application (see Keretchashvili, cited above; Lozinschi v. Moldova (dec.), no. 33052/05, 4 November 2008; Dostál v. the Czech Republic (dec.), no. 19057/02, 23 October 2007; Predescu v. Romania, no. 21447/03, §§ 24 27, 2 December 2008).
Having regard to the importance of the information at issue for the proper determination of the present case, the Court finds that the applicants’ conduct was contrary to the purpose of the right of individual petition as provided for in Article 34 of the Convention. The application must accordingly be rejected as abusive, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Dollé Françoise Tulkens
1 Here and elsewhere, the approximate conversions are given in accordance with the exchange rate on 14 May 2009.