AS TO THE ADMISSIBILITY OF
by Tamila KIKOLASHVILI
The European Court of Human Rights (Second Section), sitting on 3 February 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 28 September 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Tamila Kikolashvili, is a Georgian national who was born in 1961 and lives in Tbilisi. She was represented before the Court by Mr M. Pataraia, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr M. Kekenadze, 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.
The applicant worked as a sales manager in a State shop. Following its privatisation on 20 November 1998, she was obliged to take unpaid leave. By an order of 15 January 2001, the administration of the shop (“the employer”) dismissed the applicant in view of the suppression of her post.
The applicant brought an action against the employer, requesting reinstatement in her post and recovery of the salary for the period of compulsory leave and unlawful dismissal. After a series of remittals of the case between various judicial instances, the Tbilisi Regional Court (“the Regional Court”) partly allowed her action on 31 May 2002. Acknowledging that the applicant had been dismissed without prior notice, in breach of Article 42(2) of the Labour Code, the court annulled the order of 15 January 2001 and awarded her the amount corresponding to the loss of salary. As to the reinstatement claim, it was dismissed due to the extinction of the post in question.
The judgment of 31 May 2002 was not appealed and became binding. On 21 October 2002 the respondent discharged the judgment debt in full.
On 3 January 2003 the applicant brought an action for non-pecuniary damage against the employer, claiming to have suffered distress and frustration on account of her unlawful dismissal. She demanded 500,000 Georgian laris (EUR 249,117)1 and, relying on her work record as a proof of unemployment, requested under Article 47 § 1 of the Code of Civil Procedure (“the CCP”) exemption from the State fee due for proceeding with that claim.
In a decision of 6 January 2003, the Krtsanisi-Mtatsminda District Court in Tbilisi (“the District Court”) refused the exemption sought, and ordered the applicant to pay the required fee by a fixed date, on pain of leaving her claim without consideration.
In reply, the applicant requested, on 4 February 2003, that the payment of the State fee be deferred until after examination of the case in accordance with Article 48 of the CCP. The District Court granted that request on 10 February 2003.
On 25 March 2003, the District Court, in view of the respondent party’s absence, delivered a judgment by default. The court accepted the circumstances of the case as submitted by the applicant but dismissed her action of 3 January 2003 as manifestly ill-founded. It reasoned that, pursuant to Article 413 § 1 of the Civil Code, non-pecuniary damage could be claimed solely in the situations specified by the domestic law. However, neither the Labour nor Civil Code, nor any other domestic provision envisaged the right to claim non-pecuniary damage in connection with an employment dispute. The judgment of 25 March 2004 ordered the applicant to pay the deferred State fee in the amount of GEL 5,000 (EUR 2,279).
On 10 June 2003 the applicant appealed to the Regional Court, complaining that the lower court had applied the wrong law to her dispute. She did not however refer to another legal provision arguably providing for the right to claim non-pecuniary damage in her situation. Considering that the appellate proceedings concerned legal issues rather than factual matters, the applicant paid a State fee of GEL 30 (EUR 14).
In a decision of 26 June 2003, the Regional Court ordered the applicant to pay, in an allotted period, the outstanding part of the fee, GEL 4,970 (EUR 2,264), on pain of leaving her appeal without consideration.
On 11 July 2003 the applicant, re-submitting her work record as evidence, reiterated that she had been unemployed for the past five years, did not have any other source of revenue and requested an exemption under Article 47 § 1 of the CCP.
On 14 July 2003 the Regional Court decided to leave the applicant’s appeal without examination for non-compliance with its decision of 26 June 2003. The court considered that the exemption under Article 47 § 1 of the CCP could not be applied, since the applicant had failed to substantiate her allegedly difficult financial situation.
On 25 August 2003 the applicant lodged with the Regional Court an interlocutory appeal against the decision of 14 July 2003. She complained that no other official document, except for her work record, could have been submitted in support of her indigence.
On 29 September 2003 the Regional Court ordered the applicant to pay a State fee of GEL 5,000 (EUR 2,279) for the interlocutory proceedings. In reply, the applicant filed, on 24 October 2003, another request for exemption, attaching a certificate of unemployment issued by a municipal agency.
In a decision of 31 October 2003, the Regional Court dismissed the applicant’s request of 24 October 2003, reasoning that the unemployment certificate was insufficient to prove financial difficulties. The court allotted the applicant additional time to pay the fee for the interlocutory proceedings.
In a decision of 12 December 2003, the Regional Court rejected the applicant’s interlocutory appeal for non-compliance with its previous fee payment orders, and transmitted the case to the Supreme Court for a final decision.
On 5 March 2004 the Supreme Court upheld the decision of 12 December 2003. It stated that, since the lower court had not deemed it necessary to exempt the applicant from the State fee, and the latter had failed to abide by the payment orders, the interlocutory appeal could not be entertained. The proceedings were thus discontinued.
A reasoned copy of the Supreme Court’s decision of 5 March 2004 was communicated to the applicant on 1 April 2004.
As disclosed by the case file, the State fee imposed by the judgment of 25 March 2003 has not been paid by the applicant to date.
B. Relevant domestic law
1. The Code of Civil Procedure (“CCP”), as it stood at the material time
The provisions concerning the payment of court fees due for proceeding with civil claims, which include the State fee, were cited in paragraph 29 of the Court’s judgment in the case of FC Mretebi v. Georgia (no. 38736/04, 31 July 2007).
2. The Act of 29 April 1998 on State Fees, as it stood at the material time
The Act regulated the modalities of payment of State fees in various situations, including that of court proceedings relating to a civil claim.
Pursuant to section 6 § 3, the paid State fee should be returned to the payer in full or in part, in the event that the relevant court proceedings were discontinued or the claim left without consideration.
3. The Civil Code, as it stood at the material time
Article 413 § 1
“Non-pecuniary damage, which amount should be reasonable and equitable, can be claimed exclusively in the situations explicitly envisaged by law.”
The Civil Code did not provide for the right to claim non-pecuniary damage in employment disputes.
4. The Labour Code of 28 June 1973, in force at the material time
The Labour Code was the sole legislation regulating the rights and responsibilities of private employers and employees. It contained a mechanism for settling employment disputes in court.
Chapter XV of the Labour Code (Articles 194-216) specified the different types of pecuniary damage that, subject to certain conditions, a claimant could request in court, together with the claim for reinstatement to a post – i.e. the right to be compensated for a salary loss caused by unlawful dismissal or downgrading. However, neither that Chapter nor any other provision of the Labour Code provided, at least on arguable grounds, for a situation of a dismissed or otherwise dissatisfied person claiming non-pecuniary damage.
The applicant complained that the court proceedings had amounted to ill-treatment within the meaning of Article 3 of the Convention.
Under Article 6 of the Convention, she challenged the domestic courts’ refusal to exempt her from the State fees due for proceeding with her action for non-pecuniary damage. The applicant complained that all the decisions concerning the issue of State fees had been pronounced without oral hearings. The length of the proceedings was also contested. Invoking Article 14 of the Convention in conjunction with the above-mentioned provision, she alleged that the domestic courts had discriminated against her in view of her unemployment.
Under Article 1 of Protocol No. 1, the applicant complained that the judgment of 25 March 2003 had imposed a State fee on her.
1. The complaints under Article 6 of the Convention
The applicant’s complaints under Article 6 § 1 of the Convention concern the proceedings instituted by her action of 3 January 2003. This provision reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
The parties’ observations addressed the merits of the complaint about the non-exemption from the State fee.
However, the Court considers it appropriate to examine, first, whether Article 6 § 1 of the Convention applies to the proceedings in question. For this provision under its “civil” head to be applicable, there must be a “dispute” (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The “dispute” must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play. Finally, the right must be civil in character (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 81, Series A no. 52; Masson and Van Zon v. the Netherlands, 28 September 1995, § 44, Series A no. 327 A; Fayed v. the United Kingdom, 21 September 1994, § 56, Series A no. 294 B).
In determining the applicability of Article 6 § 1 in the present case, the primary question to be answered is whether the applicant’s action for non-pecuniary damage could arguably be said to be recognised as a “right” or “legitimate interest” under the Georgian law (see, amongst others, Mennitto v. Italy [GC], no. 33804/96, § 27, ECHR 2000 X; Salerno v. Italy, 12 October 1992, § 14, Series A no. 245 D; Z and Others v. the United Kingdom [GC], no. 29392/95, § 87, ECHR 2001 V; Berkmann v. Austria (dec.), no. 59879/00, 14 November 2002).
The Court observes that, pursuant to Article 413 § 1 of the Civil Code, non-pecuniary damage could be claimed exclusively in those situations which were explicitly envisaged by the domestic law. It further notes that neither the Civil Code nor, more relevantly, the Labour Code contained any provision which could arguably be said to provide for the right to claim non-pecuniary damage with respect to an employment dispute. The Krtsanisi-Mtatsminda District Court was of the same opinion in its judgment of 25 March 2003, noting that no domestic provision envisaged such a right. Moreover, the applicant, when appealing against that judgment, did not, and indeed could not, refer to any relevant domestic provision supporting her claim.
To the extent that the domestic law explicitly excluded, at the material time, the applicant’s claim, the Court finds that there was no arguable right which could make Article 6 § 1 of the Convention applicable to the proceedings in question. No evidence suggesting the contrary has been adduced, and the Court may not, by its own interpretation of Article 6 § 1 of the Convention, create a right that has no basis in the domestic legal system (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 47, ECHR 2001 XI; Anne-Marie Andersson v. Sweden, 27 August 1997, § 36, Reports of Judgments and Decisions 1997 IV; Berkmann, decision cited above; Z and Others, cited above, § 98).
It follows that the complaints about the proceedings instituted on the applicant’s action of 3 January 2003 are incompatible ratione materiae with Article 6 § 1 of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4.
2. The remainder of the application
Under Article 1 of Protocol No. 1, the applicant complained that the judgment of 25 March 2003 had ordered her to pay a State fee.
Even assuming that such a payment falls within the ambit of Article 1 of Protocol No. 1, the Court notes that the applicant has not paid the fee to date. The case file does not disclose, nor has it been claimed by the applicant, that the authorities have attempted to enforce the fee order of 25 March 2003. Moreover, section 6 § 3 of the Act on State Fees suggests that the applicant would be excused from paying the fee because her claim was left without consideration and the court proceedings were discontinued. Consequently, unless the authorities should attempt to enforce the order in the future, the applicant cannot at the present stage claim to be a victim of a “potential” violation of the Convention within the meaning of Article 34 of the Convention (see generally in this context, Senator Lines v. the EU States (dec.), no. 56672/00, ECHR 2004 IV and Segi and Gestoras Pro Amnistia and Others v. Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden and the United Kingdom (dec.), nos. 6422/02 and 9916/02, ECHR 2002 V, with further references).
As to the complaints under Articles 3 and 14 of the Convention, the Court, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, finds that they do not disclose any appearance of a violation of these provisions.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Sally Dollé Françoise Tulkens
1 Here and elsewhere, approximate conversions are given in accordance with the exchange rate on 28 November 2008.