KERECHASHVILI v. GEORGIA DECISION (4) [2009] ECHR 715 (28 April 2009)

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KERECHASHVILI v. GEORGIA DECISION 4

The applicant, Mr Omar Kerechashvili, is a Georgian national who was born in 1940 and lives in Tbilisi. From 11 October 2004 he was represented before the Court by Mr Z. Bourdouli, a lawyer belonging to the Georgian Young Lawyers’ Association. The Georgian Government (“the Government”) were represented first by Mrs E. Gureshidze, their general representative at the Court, and after 1 September 2005 by Mrs I. Barthaïa, their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 29 May 2000 the applicant, a civil servant employed at the Ministry of Social Security since 1974, was told that he was to be made redundant because the department in charge of disabled persons, within which he was the deputy director of the social reinsertion section, was to be reorganised after a decision to merge the Health and Social Security Ministries taken in December 1999.

The applicant brought proceedings against his employer, seeking reinstatement and the sum of 1,094.91 laris (GEL) (approximately 478 euros (EUR)) for arrears of salary and unpaid bonuses. He submitted that on a number of occasions during the period 1998-2000 his salary (GEL 651.61 (approximately EUR 285)) had not been paid. In addition, he had not been paid bonuses for the third quarter of 1998, all four quarters in 1999 and two quarters in 2000 (GEL 443.30 (approximately EUR 194)).

The defendant refused to reinstate the applicant but agreed that he was entitled to payment of the sum he claimed, amounting to GEL 1,094.91.

On 14 September 2000, finding that the decision to make the applicant redundant had been taken in accordance with the law, the Vake-Saburtalo Court of First Instance in Tbilisi dismissed the first part of the applicant’s claim. For the rest, it decided that the ministry should pay him the sum of GEL 1,094.91.

The applicant appealed, again asking for his redundancy notice to be declared null and void, and complained that the sums he was owed had not been paid to him on the day his employment was terminated, as required by Article 96 of the Labour Code.

On 4 December 2000 the Civil Division of the Tbilisi Regional Court upheld the decision of 14 September 2000 in its entirety, adding that the applicant was entitled to assert his rights under Article 96 of the Labour Code. In the reasons it gave for dismissing the first part of the applicant’s claim, the Regional Court noted that the applicant, like every other civil servant made redundant at the same time, had been given sufficient notice that he was to lose his employment when the service in which he worked was closed down. It ruled that the procedure had been perfectly compliant with the requirements of section 97(1) of the Civil Service Act, whereas the applicant had refused to take up a different post the administration had offered him in exchange, as required by section 97(2) of the Act.

The applicant appealed on points of law against the dismissal of his application to set aside his redundancy. As he had not contested before the Supreme Court that part of the appellate court’s judgment which concerned payment of the debt of GEL 1,094.91, it became final and enforceable on 4 January 2001 (Articles 397 and 402 § 1 of the Code of Civil Procedure).

According to the applicant, the decision of 14 September 2000, as upheld on appeal on 4 December 2000, was never executed.

In his appeal on points of law, the applicant submitted that the Regional Court’s interpretation of section 97(1) of the Civil Service Act was incorrect and deprived him of his rights under section 97(2). He further complained that his appeal had been heard by the Civil Division instead of the Administrative Division.

On 13 April 2001 the Supreme Court held that the dispute was a labour dispute and was to be dealt with according to the rules of civil procedure. It found no breach or incorrect interpretation of the law by the Regional Court and dismissed the applicant’s appeal. Notification of the cassation judgment was dated 1 June 2001, but was served on the applicant on 13 June 2001.

In a letter of 22 June 2001, the Georgian ombudswoman informed the applicant that she had referred to the Ministry of Justice his complaint of a failure to execute the decision of 14 September 2000. On 30 July 2001 the Vake-Saburtalo Court of First Instance issued the applicant with the writ of execution required to enforce execution of the decision of 14 September 2000, as upheld on appeal on 4 December 2000. On 31 July 2001 the applicant presented the writ, together with a written request for enforcement, to the competent bailiff (section 26 of the Court Orders (Enforcement Procedure) Act). The Government sent the Court copies of the writ of execution and the written request for enforcement (see “The law” below).

The applicant complained of the impossibility of having his redundancy declared null and void and failure to execute the decision of 14 September 2000. He submitted that he was a victim of violations of Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

It can be seen from the documents produced by the Government that the decision of 14 September 2000 was partially executed in October and December 2000. This was confirmed by the applicant in his written request for enforcement in full, which he presented to the court bailiff on 31 July 2001. He was then claiming payment of the remaining GEL 568.91, which he received on 26 February 2003.

The Court reiterates that an application may be rejected as abusive if it was knowingly based on untrue facts (see, among other authorities, Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; Akdivar and Others v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996-IV; and Řehák v. the Czech Republic (dec.), no. 67208/01, 18 May 2004). In the present case, on 5 March 2002 and 3 January 2003, the applicant complained to the Court of the total impossibility of obtaining execution of the decision of 14 September 2000, whereas it had been partially executed in October and December 2000, that is more than a year before the application was lodged. Since the remainder of the sum owed was also paid to the applicant on 26 February 2003, the decision had then been executed in full. However, neither before nor after notice of the application was given to the Government on 3 September 2004 did the applicant inform the Court of the above payments, merely insisting that he wished to continue the proceedings before it. The Court considers that by acting in this way he intended to conceal the fact that, even before his application to the Court, the ministerial authorities had honoured their obligations by paying him about half of the sum owed (GEL 526) and that, well before notice of the application was given to the respondent Government, the competent court bailiff had taken to good effect the enforcement measures necessary to guarantee payment of the remainder of the debt.

In the light of the foregoing observations, the Court considers that, with regard to execution of the decision of 14 September 2000, the applicant made untrue assertions with the intention of misleading it (see Jian v. Romania (dec.), no. 46640/99, 30 March 2004). He therefore abused his right of petition. His complaint under Article 6 of the Convention concerning failure to execute the decision of 14 September 2000 must accordingly be rejected as abusive, pursuant to Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> KERECHASHVILI v. GEORGIA DECISION (4) [2009] ECHR 715 (28 April 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/715.html Cite as: [2009] ECHR 715

European Court of Human Rights