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DADIANI AND MACHABELI v. GEORGIA - 8252/08 [2012] ECHR 986 (12 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/986.html
Cite as:
[2012] ECHR 986
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THIRD
SECTION
CASE OF
DADIANI AND MACHABELI v. GEORGIA
(Application
no. 8252/08)
JUDGMENT
STRASBOURG
12 June
2012
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 Dadiani and
Machabeli v. Georgia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Nona
Tsotsoria,
Kristina Pardalos, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 8252/08) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Georgian nationals, Mrs Elene Dadiani and
Mr David Machabeli (“the applicants”), on 4 January 2008.
The
applicants were represented by Mr Alexander Baramidze, Mr Irakli
Kandashvili and Mr Hans von Sachsen-Altenburg, lawyers
practising in Tbilisi. The Georgian Government (“the
Government”) were represented by their Agent, Mr Levan
Meskhoradze of the Ministry of Justice.
The
applicants complained under Article 6 of the Convention and Article 1
of Protocol No. 1 about the authorities’ failure to enforce a
judgment delivered by a domestic court in their favour. They also
alleged a violation of Articles 6 and 13 of the Convention and
Article 1 of Protocol No. 1 on account of the inexplicable delay in
the second set of proceedings and a violation of Article 1 of
Protocol No. 1 on account of the expropriation of the ancestral lands
by the Soviet authorities.
On
28 April 2008 the Court decided to give notice of the application to
the Government. It was also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
The
applicants, Mrs Elene Dadiani and Mr David Machabeli, were born in
1923 and 1964 respectively and live in Tbilisi. The second applicant
is the first applicant’s nephew. The first applicant’s
mother was deprived of her land and other assets by the Soviet
authorities in the 1920s.
A. First set of proceedings
In
2004 the applicants brought an action against the relevant local
authority, seeking restitution of their ancestral lands. In support
of their claim, the applicants submitted archives confirming their
ancestor’s title to the claimed land and, as a legal basis,
referred to general rules on the protection of property and
inheritance contained in the Civil Code, the Constitution and the
international human-rights treaties ratified by Georgia.
In
a judgment of 31 January 2005, the Gurjaani District Court
established the applicants’ joint ownership of land situated in
the village of Bakurtsikhe. The land was officially identified as
“plot no. 604”. The defendant local authorities
did not lodge an appeal and the judgment became binding.
On
15 February 2005 the applicants’ lawyer obtained from the
Gurjaani District Court the necessary enforcement writ, the relevant
part of which read as follows:
“Elene Dadiani and David Machabeli are hereby
recognised as ... the co-owners of plot no. 604 in the village of
Bakurtsikhe.” ...
On
26 October 2005 the applicants, acting through their lawyer,
submitted a copy of the enforcement writ together with the final
judgment of 31 January 2005 to the Gurjaani Public Registry for
enforcement. In a letter of 2 November 2005, the registrar replied
that it was not possible to register the land in the applicants’
name, as their documentation was incomplete. The lawyer was found to
be at fault for the fact that the final judgment neither indicated
the size of plot no. 604 nor specified its category: agricultural or
non-agricultural. The lawyer was further invited to submit a copy of
his identity document, the authority form proving his right to
represent the applicants, the original enforcement writ and the
cadastral plan of the land in question.
The
applicants maintained, relying on the billing information from the
lawyers for the relevant period of time, that after receipt of the
letter of 2 November 2005 the lawyers, acting on their behalf,
had visited the Gurjaani Public Registry on several occasions and
voiced their concerns regarding the failure to enforce the judgment.
They claimed, inter alia, that they were not in a position to
produce an amended final court decision. In reply, the Gurjaani
Public Registry refused to register plot no. 604 for various reasons.
The
judgment of 31 January 2005 still remains unenforced.
B. Second set of proceedings
On
25 May 2005 the applicants lodged another action claiming, on the
same legal basis, ownership of plot no. 646, adjacent to plot no.
604. The action was registered by the Gurjaani District Court on the
same day.
According
to the applicants, the examination of their second action has not
started yet.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice as regards the restitution of
property has been described in the case of Teimuraz
Andronikashvili v. Georgia (no. 9297/08, 22 June 2010) and
Klaus and Yuri Kiladze v. Georgia (no. 7975/06, §§
23 and 25-26, 2 February 2010).
A. The Regulations of the National Public Registry
Agency of 19 July 2004 (adopted pursuant to Order no. 835 of the
Minister of Justice of Georgia)
The
National Public Registry Agency is a legal entity governed by public
law established under the Ministry of Justice. One of its main
functions is to register ownership title and other related rights
over real property for the purpose of their recognition and
verification. The Public Registry Agency is responsible, among other
things, for the creation and maintenance of cadastral data on real
property.
B. The Land Registration Act of 14 November 1996 (“the
Land Act” was repealed on 28 February 2006)
Under
section 5 (b) of the Land Act, the registrar was entitled to request
the submission of any document necessary for land registration
purposes. The interested party had to comply with the registrar’s
request immediately.
C. The Civil Code of Georgia, as worded at the material
time
Article
1005 § 1 of the Civil Code provides that damage done to an
individual by either negligence or deliberate misconduct of a public
servant must be compensated by the State.
D. The Criminal Code of Georgia, as worded at the
material time
Under Article 381 of the Criminal Code, the
non-execution of a judicial decision constitutes an offence:
“The non-execution of a binding judicial decision,
or other judicial decision, or the obstruction of its execution by
the State, government or local-government officials, or by the
executives of a corporation or other organisations [shall be
punished] ...”
E. The General Administrative Code of Georgia
Pursuant
to Article 3 § 4 (g) of the General Administrative Code of
Georgia, the Code does not apply to those activities of the executive
that are related to the enforcement of final court judgments.
In
accordance with Article 177 § 3 of the General Administrative
Code, a complaint may be filed against any action of an
administrative agency pursuant to the procedure prescribed for filing
a complaint in respect of an administrative legal act.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained about the non-enforcement of the binding
judgment of 31 January 2005 and the inexplicable delay in the
second set of proceedings. They relied on Article 6 § 1 of the
Convention, the relevant part of which reads 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 ...”
Admissibility
The
Government raised several objections to the admissibility of the
application.
1. As regards the second set of proceedings
(a) The parties’ submissions
The
Government submitted that Article 6 § 1 of the Convention was
inapplicable ratione materiae to the second set of proceedings
because Georgian law did not contain a right to restitution of
property expropriated by the Soviet authorities. In their
submissions, they noted that the Act of 11 December 1997
concerning victims of political persecution by the Soviet State
explicitly stated that the issue of restitution was to be addressed
by separate legislation. However, no such act had been passed by the
Georgian legislature to date.
The
applicants disagreed.
(b) The Court’s assessment
The
Court notes that, in its recent case of Klaus
and Yuri Kiladze v. Georgia (cited
above, §§ 55-61), it has already established, after
having examined the relevant Georgian law, that there is no right to
restitution of property expropriated from Georgian nationals or their
ancestors by the Soviet authorities (see also Teimuraz
Andronikashvili v. Georgia, cited above).
It
follows that the applicants’ complaint about the length of the
second set of proceedings is incompatible ratione
materiae with Article 6 § 1
of the Convention and must be rejected in accordance with Article 35
§§ 3 and 4.
2. As regards the first set of proceedings
(a) The objection of inapplicability
ratione materiae
The
Government reiterated their argument concerning inadmissibility
ratione materiae with respect to the first set of proceedings.
The applicants contested that argument.
The Court observes that by the judgment of 31 January 2005, the
Gurjaani District Court established the applicants’ joint
ownership over plot no. 604. The defendant local authorities did not
lodge an appeal and the judgment became binding. According to the
Court’s constant case-law, the enforcement of a judgment given
by any court must be regarded as an integral part of the “trial”
for the purposes of Article 6 of the Convention (see, for example,
Hornsby v. Greece, 19 March 1997, § 40, Reports
of Judgments and Decisions 1997-II; Burdov v. Russia (no. 2),
no. 33509/04, § 65, ECHR 2009; Apostol v. Georgia,
no. 40765/02, § 37, ECHR 2006 XIV; and Jafarli and
Others v. Azerbaijan, no. 36079/06, § 52, 29 July
2010). Consequently, Article 6 § 1 of the Convention
applies to this part of the proceedings and the Government’s
objection should thus be dismissed.
(b) The objection of failure to exhaust
domestic remedies
The
Government argued that there were several effective domestic remedies
against non-enforcement that had not been used by the applicants in
the present case. In the first place, they alleged that the
applicants had not brought an action for damages under Article 1005 §
1 of the Civil Code of Georgia. Secondly, according to the
Government, the applicants had not brought criminal proceedings under
Article 381 of the Criminal Code of Georgia against the State
official allegedly responsible for the delay in enforcing the
judgment. In that connection they submitted statistical data supplied
by the Supreme Court of Georgia on the number of criminal cases dealt
with by the domestic courts under Article 381 of the Criminal Code.
Lastly, the applicants had not sought administrative review of the
letter of 2 November 2005 under Article 177 § 3 of the
General Administrative Code of Georgia.
The
applicants disagreed with the Government. They maintained that, by
failing to provide relevant examples of domestic case-law, the
Government had not showed that any of the above-mentioned domestic
remedies were indeed effective. They referred, further, to the case
of “IZA” LTD and Makrakhidze v. Georgia (no.
28537/02, § 35, judgment of 27 September 2005), in which
the Court had stated that the facts of that case and of similar cases
brought against Georgia suggested the existence of a persistent
problem of non-enforcement of final judgments delivered against the
State budget institutions. Lastly, relying on the case of Hornsby
v. Greece (cited above, § 37), the applicants
maintained that none of the impugned remedies could be deemed
sufficient to remedy their complaint.
The
Court reiterates that under Article 35 § 1 of the Convention the
only remedies required to be exhausted are those that are effective
and capable of redressing the alleged violation (see Sejdovic v.
Italy [GC], no. 56581/00, § 45, ECHR 2006-II).
Turning
to the first limb of this objection, the Court considers that in this
case a claim for damages against the State cannot be deemed
sufficient to remedy the applicants’ complaints. Even assuming
that the outcome of such actions had been favourable to the
applicants, compensation for damages stemming from an alleged
misconduct of a public servant would not have been a proper
alternative to the measures that the Georgian legal system should
have afforded the applicants in order to overcome the fact that they
were unable to register the plot in their name despite a final court
decision granting them the ownership title (see Hornsby, cited
above, § 37; Iatridis v. Greece [GC], no. 31107/96, §
83, ECHR 1999-II; and Mileva and Others v. Bulgaria, nos.
43449/02 and 21475/04, § 83, 25 November
2010).
The
same holds true as regards the criminal remedy referred to by the
Government. Indeed, it is not clear how the success of a criminal
complaint lodged by the applicant would have afforded direct and
speedy redress for the problem of non-enforcement, in so far as the
criminal courts clearly lacked the power to order the competent
authorities to proceed with enforcement of the judgment (see, mutatis
mutandis, Apostol, cited above, §§ 44-46, and
Stoycheva v. Bulgaria, no. 43590/04,
§ 40, 19 July 2011).
As
regards the administrative-law remedy, the Court concurs with the
Government’s submission that in cases of inaction or other
misconduct on the part of public officials, the alleged victims may
be expected to bring administrative proceedings against the relevant
public official or officials (see, for example, Romashov v.
Ukraine, no. 67534/01, § 31, 27 July 2004). However, the
particular circumstances of the present case lead the Court to the
conclusion that no administrative-law remedy was available to the
applicants at the material time. Notably, as can be seen from Article
3 § 4 of the General Administrative Code of Georgia, the
activities of the executive branch related to the enforcement of the
final court decisions were explicitly excluded from the scope of
application of that provision (see paragraph 19 above). The
formulation of Article 3 § 4 (c) of the Code is absolutely clear
and leaves no room for a different interpretation. This conclusion,
in the Court’s opinion, is further supported by the fact that
the Government failed to submit any examples of domestic court
decisions concerning the use of this remedy in situations related to
the enforcement of judgments (see Popov v. Moldova, no.
74153/01, §§ 34-35, 18 January 2005; Prodan v. Moldova,
no. 49806/99, §§ 42, ECHR 2004 III (extracts); and
Marini v. Albania, no. 3738/02, § 156, 18 December
2007).
In
view of the foregoing factors, the Court cannot but conclude that the
remedies referred to by the Government were inadequate to secure
redress for the alleged breach and the Government’s objection
must be dismissed.
(c) The objection of non-compliance with
the six-month time-limit
The
Government argued that the application had been submitted outside the
six-month time-limit prescribed by the Convention. They maintained
that, in so far as the applicants’ main argument was that, by
the letter of 2 November 2005, the Gurjaani
Public Registry prevented enforcement of the Gurjaani District
Court’s decision of 31 January 2005, that letter was the last
decision for the purposes of Article 35 of the Convention.
The
applicants disputed the Government’s argument, arguing that the
six-month time-limit was not applicable to alleged continuous
violations, such as non-enforcement of a final court decision. They
maintained in that connection that the letter of 2 November 2005 was
not a formal decision resulting in termination of the enforcement
proceedings; thus its date could not been taken as the starting point
for the purposes of the six-month time-limit. They had had several
follow-up meetings with the registrar concerning enforcement of the
judgment in issue and the enforcement proceedings were still pending.
The
Court observes that the authorities’ failure to comply with the
final judgment leads to a continuing situation, so that the six-month
rule does not apply (see, among other authorities, Iatridis, cited
above, § 50). It further considers, as did the applicants,
that the letter of 2 November 2005 did not have the effect of
terminating the enforcement proceedings (see S.C. Prodcomexim SRL
v. Romania, no. 35877/05, § 30, 27 October 2009; and, a
contrario, Kravchenko v. Russia, no. 34615/02, § 34,
2 April 2009). The enforcement proceedings are still pending, as the
judgment of 31 January 2005 has not ceased to be binding and
enforceable (see Hornsby, cited above, § 35, and
Iatridis, cited above, § 50); no proceedings have
been instituted under the Georgian law for its modification or
annulment before the domestic courts.
The
objection must therefore be dismissed. The Court notes that the
applicant’s complaint under Article 6 § 1 of the
Convention concerning the first set of proceedings is not
inadmissible on any other grounds. It must therefore be declared
admissible.
Merits
The parties’ submissions
The Government claimed that the judgment of 31 January 2005 had not
been enforced because of the applicants’ failure to submit the
required documents to the Gurjaani Public Registry. Accordingly, the
delay in the enforcement proceedings was wholly attributable to the
applicants. The Government further maintained that the Gurjaani
Public Registry had never prevented the enforcement of the Gurjaani
District Court decision of 31 January 2005. The sole purpose of
the letter of 2 November 2005, according to the Government, had been
to invite the applicants to produce a complete file necessary for
registering the land. Hence, the applicants’ own behaviour had
been the principal cause of the delay in execution.
The
applicants disagreed. They maintained that the arbitrary requests on
the part of the Public Registry had hindered the enforcement of the
judgment in their favour and that they themselves had created no
obstacle in that respect. They argued in that connection that the
registrar had dealt with their case in a bureaucratic manner,
imposing on them additional obligations, including an implicit
obligation to initiate additional proceedings for rectification of
the final judgment. They considered that the registrar’s
reproach concerning the content of the 31 January 2005 ruling did not
serve any legitimate purpose whatsoever, since the information
requested had already been established and had been at the disposal
of the Public Registry. In support, they submitted a map of the
village with identifiable boundaries and numbered plots of land and a
detailed list indicating the identity of the owners of the plots of
land in the village and the precise location and size of those plots.
The
Government did not comment on that map. Neither did it clarify
whether the Public Registry was indeed in possession of the requested
information.
The Court’s assessment
The
Court reiterates that the right to a court protected by Article 6
would be illusory if a Contracting State’s domestic legal
system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party (see Hornsby, cited
above, § 40). Execution of a judgment given by any court
must therefore be regarded as an integral part of the “trial”
for the purposes of Article 6. A delay in the execution of a judgment
may be justified in particular circumstances, but it may not be such
as to impair the essence of the right protected under Article 6 § 1
(see, among other authorities, Hornsby, cited above, §
40; Jasiūnienė v. Lithuania, no. 41510/98,
§ 27, 6 March 2003; Qufaj Co. Sh.p.k. v. Albania,
no. 54268/00, § 38, 18 November 2004; and Beshiri
and Others v. Albania, no. 7352/03, § 60, 22 August
2006).
The
effective protection of litigants and the restoration of legality
presuppose an obligation on the administrative authorities’
part to comply with a final judgment delivered by the domestic court
(see Hornsby, cited above, § 41; and Mutishev and
Others v. Bulgaria, no. 18967/03, § 129, 3 December
2009). Where administrative authorities refuse or fail to comply, or
even delay doing so, the guarantees enjoyed under Article 6 by a
litigant during the judicial phase of the proceedings are rendered
devoid of purpose (see Antonetto v. Italy, no. 15918/89, §
28, 20 July 2000).
The
Court further reiterates that the State is responsible for the
enforcement of final decisions if the factors impeding or blocking
their full and timely enforcement are within the control of the
authorities (see Sokur v. Ukraine, no. 29439/02, 26 April
2005, and Kryshchuk v. Ukraine, no. 1811/06, 19 February
2009). At the same time, a successful litigant may be required to
undertake certain procedural steps in order to have the judgment
enforced, provided that the required formalities do not gravely
restrict or reduce his or her access to the enforcement proceedings
(see Kosmidis
and Kosmidou v. Greece,
no. 32141/04, § 24, 8 November 2007; Rompoti and
Rompotis v. Greece, no. 14263/04, § 26, 25 January 2007;
Apostol, cited
above, § 64; and
Burdov (no. 2), cited above, § 69). In any event,
those requirements should not relieve the authorities of their
obligation under the Convention to take timely action of their own
motion, on the basis of the information available to them, with a
view to honouring judgments against the State (see Akashev v.
Russia, no. 30616/05, § 22, 12 June 2008). The burden
of ensuring compliance with a judgment against the State lies
primarily with the State authorities, starting from the date on which
the judgment becomes binding and enforceable (see Stoycheva v.
Bulgaria, cited above, § 58).
In
the instant case the applicants complained of the failure to enforce
the judgment of 31 January 2005. That decision amounted to a document
conferring title to the plot since the applicants could use it as a
basis for applying to be entered as the owners in the Public Registry
without having to institute any further administrative or judicial
proceedings. The applicants may accordingly have had a legitimate
expectation that it would be duly enforced.
The
Government submitted that the reason for the non-enforcement of the
judgment had been the failure of the applicants to submit additional
legal documents as requested. The Court agrees with the Government’s
argument that the request of the registrar to produce certain
additional documents, such as a copy of the lawyer’s personal
identity document, an authority form and an original enforcement
writ, was not arbitrary in nature (see Kosmidis
and Kosmidou,
cited above, § 24). However, the Court is of the opinion
that the main obstacle to the enforcement was the criticism in the
registrar’s letter of the impugned court decision on grounds
that it was deficient in terms of its substance as it neither
indicated the size of plot no. 604 nor specified its category:
agricultural or non-agricultural. The Court shares the applicants’
opinion that the registrar thus de facto imposed on them an
obligation to initiate new proceedings for rectification of the
impugned judgment. Hence, the issue here is whether the obligation to
produce a rectified judgment unduly prevented the applicants from
having the final binding judgment in their favour enforced.
Firstly,
as regards the obligation to initiate new proceedings, the Court
reiterates that a person who has obtained an enforceable judgment
against the State as a result of successful litigation cannot be
requested to resort to enforcement or other similar proceedings in
order to have it executed (see Burdov (no. 2), cited above, §
72).
Secondly,
as regards the information which, according to the registrar, ought
to have been included in the rectified court decision, the applicants
submitted that the size and purpose of plot no. 604 had been
established and available before the impugned court decision was
taken (see paragraph 41 above). Further, by its very nature this
information was at the disposal of the Public Registry, which is
responsible for, inter alia, creating and maintaining a
database of cadastral data on immovable property (see paragraph 15
above). The Government did not challenge the applicants’
assertion in that regard (see paragraph 42 above).
The
Court, therefore considers that the registrar’s request for
information which was or at least should have been at the disposal of
the Public Registry pursued no legal aim and was made for the purpose
of delaying enforcement proceedings (see Rompoti and Rompotis,
cited above, §§ 27-28).
The Court observes that according to the information
provided by the parties, the judgment in favour of the applicants has
not been enforced to date; in other words, there has been a delay of
over seven years in enforcing the judgment. It should be observed in
that connection that even though it may be expected that an applicant
undertake certain procedural steps in connection with the execution
of a final judgment in his or her favour (Stoycheva, cited
above, § 58), the inertia of the enforcement authorities in the
process of enforcement engages the responsibility of the State (see
Cravcenco v. Moldova, no. 13012/02, § 45, 15 January
2008; Mirzayev v. Azerbaijan, no. 50187/06, §§
35-36, 3 December 2009, and Kirilova and Others v. Bulgaria,
nos. 42908/98, 44038/98, 44816/98 and 7319/02, § 121, 9 June
2005). Accordingly, the Court considers that, even if the applicants’
omission to submit some of the missing documents might have
contributed to the non-enforcement (see paragraph 47 above), this
cannot absolve the authorities of their obligation to execute a final
and binding court decision (see Gjonbocari and Others v. Albania,
no. 10508/02, §§ 52-53, 23 October 2007, and
Stoycheva, cited above, § 58).
Having
regard to the foregoing, the Court considers that the facts of the
case do not demonstrate any justification for the failure to enforce
the final court decision of 31 January 2005. There has therefore been
a violation of Article 6 § 1 of the Convention in that respect.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1
Relying
on Article 13 of the Convention and Article 1 of Protocol No. 1
respectively, the applicants complained that they had had no
effective remedies in respect of the length of the second set of
proceedings and that those pending proceedings had infringed their
property rights. Article 1 of Protocol No. 1 was further invoked
to challenge the non-enforcement of the binding judgment of 31
January 2005 and the expropriation of the applicants’ ancestral
lands by the Soviet authorities during the 1920s.
Article 13
of the Convention and Article 1 of Protocol No. 1 respectively
read as follows:
Article 13
"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. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
In
connection with the second set of proceedings the Court, having due
regard to its findings under Article 6 § 1 of the Convention,
concludes that the complaints under Article 13 of the Convention and
Article 1 of Protocol No. 1 are also to be rejected as being
incompatible ratione materiae pursuant to Article 35 §§
3 and 4 of the Convention. Moreover, the complaint directly
related to the Soviet expropriation in the 1920s arose prior to the
Court’s temporal jurisdiction with respect to the respondent
State and is therefore inadmissible ratione temporis by virtue
of Article 35 §§ 3 and 4 of the Convention
(see Teimuraz Andronikashvili, cited above).
As
regards the first set of proceedings, the complaint under Article 1
of Protocol No. 1 is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. However, in the light of the
finding of a violation of Article 6 § 1 of the Convention (see
paragraph 52 above), the Court considers that it is not necessary to
examine separately whether, in the particular circumstances of the
present case, there has also been a violation of Article 1 of
Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“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.”
A. Damage
The
applicants, as their principal submission, sought the enforcement of
the final judgment given in their favour, that is, the registration
of their ownership title with the Public Registry. They further
claimed EUR 20,000 each for the non-pecuniary damage suffered as a
result of the failure of the authorities to enforce the judgment of
31 January 2005 and in respect of pecuniary damage, EUR 100 per every
month of delay in the execution. They claimed that this amount would
cover the loss of profit incurred as a result of their inability to
use the impugned plot of land.
The
Government submitted that the applicants’ claims were
unreasonable and ill-founded, since there had been no violation of
any provisions of the Convention in the present case. According to
the Government, the delay in the enforcement of the judgment of 31
January 2005 was wholly attributable to the applicants.
The
Court notes that the State’s outstanding obligation to enforce
the judgment of 31 January 2005 is not in dispute. The most
appropriate form of redress in respect of a violation of Article 6 is
to ensure that the applicants as far as possible are put in the
position they would have been had the requirements of Article 6 not
been disregarded (see Gjonbocari and Others, cited above, §
100). It therefore considers that the Government must secure, by
appropriate means, the enforcement of the domestic court’s
final judgment (see among other authorities Apostol, cited
above, §§ 72-73, and Teteriny v. Russia, no.
11931/03, § 56, 30 June 2005).
The
Court does not discern any causal link between the violations found
and the remainder of the pecuniary damage alleged; it therefore
rejects this claim. However, the Court has no doubt that the
applicants must have been caused a certain amount of stress and
frustration as a result of the non-enforcement of the judgment. The
resulting non-pecuniary damage would not be adequately compensated by
the mere finding of a violation. The Court thus awards each applicant
EUR 2,000 for non-pecuniary damage.
B. Costs and expenses
The
applicants claimed reimbursement of EUR 20,337.30 in respect of their
representation in the proceedings before both the domestic courts and
the Court. In support of this claim, they submitted an invoice dated
25 February 2009 showing that the payment of the above sum
included 18 % VAT in accordance with Georgian tax law. They also
provided billing information from the lawyers broken down into the
number of hours spent and their hourly rates.
The
applicants further claimed a total of GEL 998.30 for various
administrative expenses. Except for a record itemising the relevant
expenses, the applicants did not submit any relevant bills or
receipts which would show that these expenses were actually incurred.
The
Government claimed that the costs of legal representation were
extremely exaggerated; as to the administrative expenses, they were
insufficiently substantiated.
The
Court reiterates that to be entitled to an award for costs and
expenses under Article 41 of the Convention, the injured party must
have actually and necessarily incurred them. In particular, Rule 60 §
2 of the Rules of Court states that itemised particulars of any claim
made under Article 41 of the Convention must be submitted, together
with the relevant supporting documents or vouchers, failing which the
Court may reject the claim in whole or in part. Furthermore, costs
and expenses are only recoverable in so far as they relate to the
violation found (see, among many other authorities, Iatridis v.
Greece (just
satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI;
Beyeler v. Italy (just satisfaction) [GC], no. 33202/96,
§ 27, 28 May 2002; and Svipsta v. Latvia, no. 66820/01,
§ 170, ECHR 2006-III).
The
Court notes that certain portion of the submissions made by the
applicants’ lawyers concerned complaints that were declared
inadmissible. Therefore the claim cannot be allowed in full and a
reduction must be applied. The Court further considers, in view of
the insufficiency of the relevant financial documents, that no award
shall be made in respect of reimbursement of various administrative
costs. As regards legal fees, making its own estimate on the
information available, the Court awards the applicants jointly EUR
1,500.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 concerning the
failure to enforce the judgment of 31 January 2005 admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the non-enforcement of the
judgment of 31 January 2005;
Holds that there is no need to examine the
complaint under Article 1 of Protocol No. 1;
Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, plus any tax that
many be chargeable, and jointly EUR 1,500 (one thousand five hundred
euros) in respect of costs and expenses, plus any tax that may be
chargeable to the applicants, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
