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SECOND
SECTION
CASE OF KVITSIANI v. GEORGIA
(Application
no. 16277/07)
JUDGMENT
STRASBOURG
21 July 2009
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 Kvitsiani v.
Georgia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 30 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16277/07) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Georgian national, Mr Amiran Kvitsiani (“the
applicant”), on 4 April 2007.
- The
applicant was represented by Mr Vakhtang Kekelidze, 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.
- On
11 December 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and currently lives in Tbilisi.
- In
the course of a police operation conducted on 15 September 1997 in
the village of Becho, Mestia District, the applicant's house, which
happened to be close to the scene, was accidentally burned down
together with the adjacent farm buildings. The house had been the
applicant's place of residence prior to the incident.
- On
15 July 1999 the applicant sued the Ministry of the Interior and the
Ministry of Finance for the damage done and, in a judgment of
27 December 2000, the Krtsanisi-Mtatsminda District Court in
Tbilisi ordered the respondent authorities to pay him 60,000 Georgian
laris (GEL) (26,646 euros (EUR))
in compensation for the destruction of his property (“the
judgment debt”). The operative part of the judgment indicated
that the payment should be made from the State Budget for 2001.
- The
judgment of 27 December 2000 was upheld in full by the Tbilisi
Regional Court and the Supreme Court of Georgia on 21 March and
2 October 2002, respectively, and became binding on the latter
date.
- On
19 November 2002 the Krtsanisi-Mtatsminda District Court issued the
respondent authorities with a writ of execution which reiterated the
obligation to discharge the judgment debt from the 2001 State Budget.
The authorities remained inactive.
- Subsequent
to the applicant's complaint, on 8 January 2003 the Enforcement
Department of the Ministry of Justice (“the Enforcement
Department”) invited the respondent authorities to discharge
the judgment debt of their own accord within the following three
months, on pain of forcible enforcement measures. The allotted time
expired without the judgment debt having been paid, but no measures
followed.
- On
11 October 2005 the Enforcement Department issued the National Bank
of Georgia with an order to pay the judgment debt. However, as that
order indicated the wrong amount, the National Bank sent it back on
25 November 2005 unenforced.
- On
1 December 2006 the applicant asked the Ministry of Finance for news
of progress in the enforcement proceedings.
- On
13 December 2006 the Ministry of Finance replied that it was unable
to discharge the judgment debt, as the Ministry of the Interior had
failed to do so of its own accord.
- In
a decision of 19 December 2006, at the applicant's request, the
Tbilisi City Court removed from the judgment of 27 December 2000, as
an objectively unenforceable condition, the indication that the debt
should be paid from the 2001 State Budget. That decision became
binding on 28 May 2007, and on 4 September 2007 the City Court
issued a writ for its enforcement.
- On
2 April 2008, on the basis of the previous enforcement writ of
19 November 2002, the Enforcement Department requested the
National Bank of Georgia to disburse the judgment debt. The latter
authority did so on 4 April 2008, and three days later the applicant
retrieved the debt in full.
II. RELEVANT DOMESTIC LAW
- The
relevant legal provisions concerning the conduct of enforcement
proceedings against a public agency funded from the State Budget were
cited in the case of Amat-G Ltd and Mebaghishvili v. Georgia
(no. 2507/03, §§ 25-27, ECHR 2005 VIII).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that the lengthy non-enforcement of the binding
judgment of 27 December 2000 violated his rights under Article 6 § 1
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 ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions...”
- The
Government stated that, since the impugned judgment had been
enforced, the applicant could no longer be considered as a victim of
the claimed violations, within the meaning of Article 34 of the
Convention.
- The
Government further contended that the applicant had failed to exhaust
domestic remedies as he did not lodge a civil claim with the domestic
courts, or initiate criminal and/or administrative proceedings, to
challenge the inactivity of the bailiffs and seek compensation for
the consequent damage.
- On
the merits, referring to the relevant circumstances of the case, the
Government stated that the enforcement authority had conducted the
enforcement proceedings with due diligence, and that the inability to
discharge the judgment debt in a more timely manner had rather been
caused by the lack of sufficient State Budget appropriations, as well
as the deficient wording of the operative provision of the binding
judgment of 27 December 2000. Referring to recent
legislative measures and statistical data, the Government asserted
that, in general, the respondent State had improved the situation
with respect to timely payment of judgment debts.
- The
applicant disagreed, stating that the belated enforcement of the
judgment of 27 December 2000 could not, in itself, remedy the
unreasonable length of the enforcement proceedings. The lengthy
non-enforcement was particularly detrimental in his situation, given
that timely compensation for the loss of his home was of vital
importance. He claimed that the real reason behind the eventual
enforcement was not the authorities' good will, as suggested by the
Government, but the Court's involvement in his case.
- Referring
to the Court's relevant case-law, the applicant further contested the
relevance and effectiveness of the domestic remedies referred to by
the Government.
A. Admissibility
1. As regards the applicant's victim status
- The
Court agrees with the Government that the enforcement of the judgment
given in the applicant's favour redressed the issue of
non-enforcement as such. However, such belated enforcement does not
address the allegation concerning the excessive length of the
procedure. Consequently, the applicant may still claim to be a victim
of an alleged violation of the rights guaranteed by Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 with respect to
the period during which the judgment of 27 December 2000 remained
unenforced (see, amongst other authorities, Voytenko v. Ukraine,
no. 18966/02, § 32-35, 29 June 2004; Romashov v.
Ukraine, no. 67534/01, §§ 23-27, 27 July 2004;
Skubenko v. Ukraine (dec.), no. 41152/98, 6 April
2004).
- Accordingly,
the Court dismisses the Government's preliminary objection as regards
the applicant's victim status.
2. As regards the exhaustion of domestic remedies
- Recalling
its well-established case-law on the matter, the Court reiterates
that none of the remedies suggested by the Government (see paragraph
18 above) can be deemed effective for the applicant's complaint
against the authorities about the lengthy non-enforcement of the
judgment. Failure to pay judgment debts from the State Budget in due
time is contingent upon appropriate legislative-budgetary measures,
as was acknowledged by the Government in the present case (see
paragraph 19 above), rather than on the enforcement authority's
conduct (see, amongst many other authorities, Magomedov
v. Russia, no. 20111/03, § 21,
4 December 2008; Amat-G Ltd and Mebaghishvili, cited
above, §§ 37-40; IZA Ltd and Makrakhidze v. Georgia,
no. 28537/02, §§ 31-37, 27 September 2005;
Voytenko, cited above, §§ 28-32; Romashov, cited
above, §§ 28-33).
- The
Government's second preliminary objection must, therefore, be
dismissed.
3. Conclusion
- The
Court concludes that the complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
- The
Court reiterates that a person who has obtained a judgment against
the State should not be obliged to bring separate enforcement
proceedings (see, Metaxas
v. Greece, no. 8415/02,
§ 19, 27 May 2004). This principle, as it applies to the
circumstances of the present case, means that the respondent State
became responsible for the enforcement of the judgment of 27 December
2000 the moment it became binding, that is on 2 October 2002
(see paragraph 7 above; see also Magomedov,
cited above, § 21, and Semochkin
v. Russia, no. 3885/04, §
17, 4 December 2008). That judgment remained unenforced for more than
5 years and 6 months (see paragraph 14 above).
- The
Court considers this period to be unreasonably long, especially when
assessed against the simplicity of the enforcement proceedings at
stake, the parties' conduct and the significance of the timely
receipt of the judgment debt for the applicant (see Raylyan
v. Russia,
no. 22000/03, § 31,
15 February 2007). The Government did not point to any
circumstances that could justify such a delay. The lack of funds in
the State Budget is not an excuse (see, for example, Amat-G and
Mebaghishvili, cited above, § 48). Nor could the
alleged procedural difficulty be held against the applicant (see
paragraph 19 above).
- The
foregoing considerations are sufficient to enable the Court to
conclude that, by failing for five and a half years to comply with
the enforceable judgment in the applicant's favour, the domestic
authorities impaired the essence of his right to a court and
interfered with his right to the peaceful enjoyment of his
possessions (see, Voytenko, cited above, §§ 43
and 55; Vodopyanovy v. Ukraine, no. 22214/02, §§
31-36, 17 January 2006).
There
has accordingly been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Article
13 of the Convention was similarly invoked to denounce the
applicant's non-receipt of the judgment debt in due time.
- However,
having regard to its findings under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 (see paragraph 29 above),
the Court considers that it is not necessary to examine, in the
circumstances, the same complaint under Article 13 of the Convention
(see, Paslen v. Ukraine, no. 44327/05,
§ 14, 11 December 2008, and Derkach and Palek v.
Ukraine, nos. 34297/02 and 39574/02, § 42, 21 December
2004).
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
applicant claimed a sum in respect of pecuniary damage which would
compensate for the loss of income from his small-scale farming
activity and incorporate the compound interest payable on the
judgment debt at the default interest rate of the Georgian National
Bank for the whole period of non-enforcement. The relevant
calculations were left to the discretion of the Court.
- The
applicant also claimed GEL 200,000 (EUR 88,818) in
respect of non-pecuniary damage.
- The
Government contested these claims as unsubstantiated and excessive.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
However, the Court accepts that the applicant must
have been distressed by the belated enforcement. Making its
assessment on an equitable basis, the Court awards EUR 3,000 under
this head.
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for the costs and expenses incurred
before the Court. No evidence was submitted in support.
- The
Government noted that this claim was unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the lack of documentation and the above criteria, the Court rejects
this claim.
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
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
- Holds that there is no need to examine
separately the complaint under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention,
EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
