AS TO THE ADMISSIBILITY OF
by Liana NAZARETIAN
European Court of Human Rights (Second Section), sitting on
7 July 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 10 April 2006,
Having regard to the parties’ observations,
Having deliberated, decides as follows:
The applicant, Mrs Liana Nazaretian, is a Georgian national who was born in 1959 and lives in Tbilisi. She was represented before the Court by Mr Malkhaz Labadze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were successively represented by their Agents, Mr David Tomadze and Mr Levan Meskhoradze of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In a judgment of 8 July 1999 the Gldani-Nadzaladevi District Court in Tbilisi ordered that a monthly allowance be paid to the applicant by her former spouse until their child, born in 1993, reached the age of majority. That judgment became binding on 10 August 1999.
As disclosed by the case file, since the debtor failed to comply with this judgment, the applicant obtained a writ of execution from the Gldani Nadzaladevi District Court and requested, on an unspecified date, the initiation of enforcement proceedings. The bailiffs, resorting to a number of forcible measures, retrieved from the debtor the child allowance for approximately ten months.
As further disclosed by the case file, on 2 May 2001 the applicant requested, for unspecified reasons, the discontinuation of the enforcement proceedings. According to a receipt paper signed by the applicant on the same day, the bailiff handed to her all the case materials, including the enforcement writ.
On 20 June 2001 the applicant, claiming that her former spouse had a higher income than that acknowledged in the judgment of 8 July 1999, requested that the allowance be increased (“the second set of child allowance proceedings”). Her claim was found to be unsubstantiated by several instances, and, lastly, by the Supreme Court of Georgia on 8 October 2004.
Subsequent to the termination of the second set of child allowance proceedings, the applicant requested, either in October or November 2004, the bailiffs to proceed with the enforcement of the judgment of 8 July 1999. The Enforcement Department of the Ministry of Justice (“the Enforcement Department”) replied in late November 2004, reminding the applicant of the fact that the enforcement proceedings had been discontinued at her request. If she wished to have those proceedings re-opened, she had to re-submit the relevant writ of execution, as required by section 20 § 1 of the Enforcement Proceedings Act of 16 April 1999 (“the Enforcement Act”).
Pursuant to the applicant’s request, the Gldani-Nadzaladevi District Court issued, on 24 January 2005, another writ of execution for the judgment of 8 July 1999, and on 31 January 2005 the enforcement proceedings were formally reopened. However, since the writ of 24 January 2005 indicated an invalid address for the debtor, the bailiff sent the document back to the applicant on 7 April 2006 unenforced.
On 22 June 2005 the Enforcement Department, acting in reply to the General Prosecutor Office’s enquiry about the cause of non-enforcement, reminded the applicant of her obligation to provide an enforcement writ with the debtor’s correct address, without which information no enforcement measures could be undertaken.
B. Relevant domestic law
1. The Enforcement Proceedings Act of 16 April 1999, as it stood at the material time
Section 5 § 1
“Bailiffs at Enforcement Offices [of the Ministry of Justice] shall be responsible for the execution of the decisions provided for hereunder.”
Section 17 § 5
“Bailiffs shall take 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.”
Pursuant to section 18 §§ 1 and 2, an appeal against any procedural decision, action or omission of the bailiff lay to a court.
Section 20 § 1 stated that enforcement proceedings could not be launched without the relevant writ of execution.
Pursuant to section 37, the reasonableness of the decision to discontinue the enforcement proceedings could be reviewed by a court at the creditor’s request.
2. The General Administrative Code, as it stood at the material time
Pursuant to Articles 207-209, the State could be sued for the harm done by action or omission of any public servant as well as by the implementation of a lawfully issued legal-administrative act. In such proceedings, the relevant provisions of the Civil Code could be applied, if necessary.
3. The Civil Code
Pursuant to Article 1005 § 1, damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the State.
The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about the bailiffs’ failure to conduct adequately the enforcement proceedings under the judgment of 8 July 1999.
Article 6 § 1 of the Convention was further invoked to challenge the outcome of the second set of child allowance proceedings.
1. As to the alleged inefficiency of the enforcement proceedings
The applicant complained about the ineffectiveness of the enforcement proceedings under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...”
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions...”
(a) The parties’ arguments
The Government stated that the applicant had failed to exhaust domestic remedies as she did not lodge a civil claim with the domestic courts, or initiate criminal and/or administrative-hierarchical proceedings, to challenge the inactivity of the bailiffs and seek compensation for the consequent damage. They further contended that the complaint about the ineffectiveness of the enforcement proceedings was manifestly ill-founded, in so far as the applicant’s own conduct had been at the cause of the problem. Thus, the Government referred to the fact that the enforcement proceedings had been stayed between 2 May 2001 and October-November 2004 at her request. As to the subsequent period, the main reason of the non-enforcement was the applicant’s lasting failure to obtain from the relevant court an enforcement writ with the debtor’s valid address.
The applicant replied that, since the essence of her complaint was the bailiffs’ inability to conduct the enforcement proceedings with due diligence, the initiation of proceedings for damages against them would have been a futile exercise. Even the successful outcome of such proceedings would only have produced repetitive results, namely a warrant directing the bailiffs to proceed with the enforcement of the judgment of 8 July 1999. The applicant asserted that she had never requested the discontinuation of the enforcement proceedings on 2 May 2001, and that the bailiff had made the arbitrary decision himself. Claiming that it was the enforcement authority’s duty to locate debtors’ whereabouts, she denounced the Government’s attempts to hold her responsible for the lack of knowledge of her former spouse’s valid address.
(b) The Court’s assessment
The Court recalls that where a judgment debt is against a private person, and the main alleged cause of the non-enforcement is the bailiffs’ conduct, it is appropriate to bring proceedings against those bailiffs to give the State a chance to put matters right internally (see, for example, Samoylenko and Polonska v. Ukraine, no. 6566/05, § 25, 18 December 2008; Tishkevich v. Russia, no. 2202/05, § 17, 4 December 2008; a contrario, Plotnikovy v. Russia, no. 43883/02, § 17, 24 February 2005).
The Court notes that the alleged inefficiency of the enforcement proceedings directed against the applicant’s former spouse was imputable to the conduct of the particular bailiffs. The applicant acknowledged herself that the essence of her complaint was the failure of those public servants to perform their duties with due diligence. However, she never attempted to sue them, which remedy was clearly available to her under sections 18 §§ 1 and 2 and 37 of the Enforcement Act and Articles 207-209 of the General Administrative Code, read in conjunction Article 1005 § 1 of the Civil Code. Thus, she could have requested redress for the damage done either by the allegedly arbitrary discontinuation of the enforcement proceedings in May 2001 or the bailiffs’ refusal to locate the debtors’ whereabouts (cf. Dzizin v. Ukraine (dec.), no. 1086/02, 24 June 2003; Kukta v. Ukraine (dec.), no. 19443/03, 22 November 2005). The circumstances of the case do not suggest that there existed any other objective reason, independent of the bailiffs’ conduct, for the alleged ineffectiveness of the enforcement proceedings (cf., a contrario, Jasiūnienė v. Lithuania (dec.), no. 41510/98, 24 October 2000; Amat-G Ltd and Mebaghishvili v. Georgia, no. 2507/03, §§ 37-40, ECHR 2005 VIII; IZA Ltd and Makrakhidze v. Georgia, no. 28537/02, §§ 31-37, 27 September 2005).
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. As to the remainder of the application
Under Article 6 § 1 of the Convention, the applicant called into question the outcome of the second set of child allowance proceedings. However, such a complaint is clearly of a “fourth instance” nature. In this connection, the Court reiterates that the domestic courts are best placed for assessing the relevance of evidence to the issues in the case and for interpreting and applying rules of substantive and procedural law (see, amongst many authorities, Rizhamadze v. Georgia, no. 2745/03, § 21, 31 July 2007). Insofar as the relevant domestic decisions do not disclose any manifestly arbitrary reasoning (cf., a contrario, Donadze v. Georgia, no. 74644/01, § 32, 7 March 2006), the Court considers that this complaint is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-Passos Françoise
Deputy Registrar President