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THIRD
SECTION
DECISION
Application no.
44303/05
by Geronti NAPISHVILI
against Georgia
The
European Court of Human Rights (Third Section), sitting on 13 March
2012 as a Committee composed of:
Ján Šikuta,
President,
Nona Tsotsoria,
Mihai Poalelungi,
judges,
and Marialena Tsirli,
Deputy Section Registrar,
Having
regard to the above application lodged on 19 November 2005,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Geronti Napishvili, is a Georgian national who was born
in 1955 and lives in Mtskheta. He was represented before the Court by
Mr M. Labadze, a lawyer practising in Tbilisi.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- In
1987 the applicant was sent by the Soviet Ministry of Defence to take
part in the “liquidation” (clean-up) work after the
nuclear accident at the Chernobyl nuclear plant in Ukraine. As a
result of deterioration in his health arising from that event, the
applicant was registered as Category 2 disabled, becoming entitled to
various social benefits under the Law of Georgia on the Social
Protection of Liquidators of Nuclear Emergencies (“the Law of 8
November 2000”).
- On
18 April 2003 the applicant, acting via his lawyer, instituted civil
proceedings against the Ministry of Labour, Health and Social Affairs
of Georgia (“the Ministry of Health”), seeking
compensation for pecuniary and non-pecuniary damage in the amount of
250,000 United States dollars (USD). The
applicant based his claim solely on the fact that he had been sent to
the Chernobyl site, where he had been exposed to dangerous levels of
radiation and as a result had developed an incurable disease caused
by radiation. The applicant therefore requested USD 200,000 for
health rehabilitation and USD 50,000 in compensation for
non-pecuniary damage.
- In
support the applicant cited section 10 of the Law of 8 November 2000,
according to which the Ministry of Health is responsible for
organising and supervising the provision of labour, health and social
benefits to those involved in liquidation works after nuclear
emergencies. At a later stage of the proceedings the applicant
further substantiated his claim by citing Articles 317, 408 § 2,
409, 413 and 414 of the Civil Code of Georgia of 1997, which provide
for compensation for pecuniary and non pecuniary damage.
- The
applicant provided the trial court with medical documents stating
that he had been diagnosed as suffering from, radiation injury, bone
marrow hypoplasia (underdevelopment), leucopenia (a low level of
white blood cells, which might be indicative of a viral infection or
leukaemia), chronic polyarthritis (chronic
inflammation of several joints), a chronic prostate condition,
angiopathy of the thigh, chronic parodontosis, cardiomyodystrophy
and several other diseases.
- At
a hearing on 4 July 2003 the Tbilisi Regional Court, acting at the
request of the Ministry of Health and with the consent of the
applicant, designated the President of Georgia and the Ministry of
Defence of Georgia as the proper respondents in the applicant’s
case. The applicant’s request for the Ministry of Health to be
engaged as a third party in the proceedings was dismissed by the
court.
- According
to the record of a hearing on 16 September 2003, the applicant
reiterated his claim against the Ministry of Defence for damage
suffered as a result of participation in the liquidation work and
exposure to radiation in Chernobyl. The Tbilisi Regional Court
explicitly enquired with the applicant whether he had any claims
against the Ministry of Health and whether he was complaining about
the lack of free medical care. In reply, the applicant reaffirmed
that he had no claims against the Ministry of Health and that the
issue of free medical care was of only secondary importance to him.
He further maintained that he was relying on section 10 of the Law of
8 November 2000 merely to substantiate his claim for compensation for
pecuniary and non-pecuniary damage.
- The
Ministry of Defence, for its part, maintained that the Law of
8 November 2000 provided only for social benefits and did not
envisage a legal basis for an award of damages. The Ministry further
asserted that it could not be held responsible for the allegedly
wrongful sending of the applicant to Chernobyl, as the Ministry of
Defence of Georgia did not exist as such at the material time.
- On
25 September 2003 the trial court ordered a medical examination of
the applicant, inquiring, inter alia, into any causal link
between the applicant’s health problems and his work at the
Chernobyl site, and into the type of medical treatment the applicant
required in view of his current medical condition. The examination
was commissioned from experts at a forensic examination centre. The
trial court stayed the proceedings.
- By
a letter of 27 February 2004 the head of the forensic examination
centre informed the trial court that they were unable to perform the
requested medical examination. It was stated in an attached letter
that because of the applicant’s possible exposure to radiation,
his medical check up should have been conducted in a specialised
haematology and blood transfusion institution.
- On
27 April 2004 the trial court ordered a new medical examination of
the applicant, this time assigning it to a haematology and blood
transfusion institute, and stayed the proceedings. In July 2004 the
applicant underwent several medical tests, on the basis of which the
experts concluded that he was not suffering from radiation sickness
as such. The report did not elaborate on the origin and nature of the
applicant’s existing health problems, his current state of
health or the treatment he required.
- The
proceedings were resumed on 12 August 2004 when the applicant’s
medical file, with a conclusion on his medical examination, was
returned to the court.
- On
10 November 2004, the Tbilisi Regional Court dismissed the
applicant’s claim as manifestly ill-founded. It referred to the
applicant’s diagnosis of leucopenia and radiation injury and
whilst distinguishing those conditions from radiation sickness and
leukaemia, reasoned that there was no evidence to conclude that the
applicant’s health had been damaged as a result of his
participation in the liquidation work at the Chernobyl site. The
court relied in this connection on the medical experts’
testimony, according to which radiation injury, as opposed to
radiation sickness, did not require any treatment. Hence, the court
concluded that there was no basis to award the applicant pecuniary
damages.
- The
Tbilisi Regional Court also dismissed the applicant’s claim for
compensation for non-pecuniary damage, finding that the Civil Code of
26 December 1964, in force at the material time, did not
recognise a right to compensation for non-pecuniary damage.
- In
connection with the Law of 8 November 2000, the trial court concluded
that the latter merely provided for various social benefits, which
the applicant had already been awarded.
- On
14 December 2004 the applicant appealed against that decision to the
Supreme Court of Georgia. He denounced the trial court’s
failure to order a proper medical examination capable of establishing
a causal link between his numerous diseases and the work at
Chernobyl. He further challenged the trial court’s conclusion
that there was no evidence to support his allegation that his health
had been damaged as a result of his participation in the liquidation
work, and also complained in this respect that the trial court had
disregarded his numerous existing diseases.
- On
19 May 2005, the Supreme Court subscribing to the reasoning of the
first-instance court dismissed the applicant’s appeal as
unsubstantiated. The Supreme Court advanced two additional arguments
in support of its decision. With respect to the Law of 8 November
2000, the court concluded that the latter merely provided for various
types of social benefits and did not envisage a right to monetary
compensation as such. Hence, according to the Supreme Court, the
applicant could not have claimed compensation for pecuniary and
non-pecuniary damage on the basis of this Law. As regards the Civil
Code of Georgia of 1997, also cited by the applicant, the court held
that the applicant’s action for pecuniary and non-pecuniary
damage on that very basis was lodged out of time. The Supreme Court
relied in this respect on Articles 128 and 1008 of the Civil Code of
Georgia, which provide for a general ten-year statutory time-limit
and a three-year statutory time-limit for claims for damages,
respectively.
B. Relevant domestic law
- The
Law of 8 November 2000 (as it stood at the material time)
Section 1. The purpose of the law
This law defines the legal and economic bases for the
social protection of liquidators of emergencies at the Chernobyl
atomic power station and other civil and military nuclear facilities
(hereinafter “nuclear facilities”) and their families.
...
Section 5. Social protection for those disabled as a
consequence of their participation in the liquidation of emergencies
at nuclear facilities
Social protection for those disabled as a consequence of
their participation in the liquidation of emergencies at nuclear
facilities consists of:
pension
under the war disablement pension scheme;
compulsory
medical insurance ;
Section 6. Social protection for liquidators of
emergencies at nuclear facilities
Social protection for liquidators of emergencies at
nuclear facilities consists of:
pension under the war pension scheme;
compulsory medical insurance;
...
Section 10. The organisation and supervision of
labour, health and social protection for liquidators of emergencies
at nuclear facilities and their families
The Ministry for Labour, Health and Social Affairs shall
be responsible for organising and supervising the allocation of
labour, health and social benefits as provided by this law for
liquidators of emergencies at nuclear facilities and to their
families.
- The
Civil Code of Georgia of 1997
Article 128. Concept; Types
1. A statutory time-limit shall apply to the
right to demand of another person that he or she perform or refrain
from performing a certain action;
3. The general statutory time-limit is ten
years.
Article 1008. The statutory time-limit for damages
claims
The statutory time-limit for damages claims arising from
a tort is three years from the date the victim became aware of the
harm or the identity of the person liable to compensate for the harm.
COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention about
the length of the proceedings. He further argued, relying on Article
1 of Protocol No. 1, that the refusal of the domestic courts to
compensate him for the pecuniary and non-pecuniary damage allegedly
caused by his participation in the liquidation work at Chernobyl
amounted to a deprivation of his possessions. He also contended that
the right to free medical care or indeed to compensation arising from
the alleged failure to provide him with free medical care amounted to
a possession for the purposes of Article 1 of Protocol No. 1, and
that the failure of the domestic courts to grant him pecuniary and
non-pecuniary damages in that respect also amounted to a deprivation
of his possessions.
THE LAW
A. Article 6 § 1 of the Convention
- The
applicant complained about the length of the proceedings before the
domestic courts. He submitted that he was a victim of a violation of
Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Court will assess the reasonableness of the length of the impugned
proceedings in the light of the particular circumstances of the case
and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and that of the competent
authorities and what was at stake for the applicant in the dispute
(see, among many other authorities, Frydlender v. France [GC],
no. 30979/96, § 43, ECHR 2000 VII).
- The
applicant’s complaint relates to the length of the proceedings,
which began on 18 April 2003 and ended on 19 May 2005. They therefore
lasted two years and one month before courts at two levels of
jurisdiction. The Court notes that the proceedings at issue were of
some complexity, as they required the taking of an expert opinion,
deciding on the issue of designation of a proper respondent and
studying and analysing complex medical information. The Court cannot
detect any particular delay for which the authorities could be held
responsible. Moreover, the total duration cannot be considered
excessive. The complaint under Article 6 § 1 of the Convention
is therefore manifestly ill-founded and should be rejected under
Article 35 §§ 3 and 4 of the Convention.
B. Article 1 of Protocol No. 1 to the Convention
- The
applicant argued that the failure of the domestic courts to grant him
pecuniary and non-pecuniary damages amounted to a deprivation of his
possessions. He alleged in this connection a violation of Article 1
of Protocol No. 1, which reads, in the relevant part, as follows:
“Every natural or legal person is entitled to
peaceful enjoyment of his possessions. No one shall be deprived of
his possession except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law ...”
1. Compensation arising from the applicant’s
participation in the liquidation work at Chernobyl and ensuing
damages
- The
Court reiterates that applicants may allege a violation of Article 1
of Protocol No. 1 only in so far as the impugned decisions relate to
their “possessions” within the meaning of that provision.
“Possessions” can be either “existing possessions”
or assets, including claims, in respect of which the applicants can
argue that they have at least a “legitimate expectation”
of obtaining effective enjoyment of a property right (see, among many
other authorities, Kopecký v. Slovakia [GC], no.
44912/98, § 35, ECHR 2004 IX). An “expectation”
is “legitimate” if it is based on either a legislative
provision or a legal act bearing on the property interest in question
(ibid., §§ 45-52 ).
- Turning
to the circumstances of the present case, the issue to be determined
by the Court is whether under Georgian domestic law the applicant can
be said to have had a “legitimate expectation” of
obtaining compensation for his participation in the liquidation works
at the Chernobyl site or for the ensuing harm caused to him.
- Firstly,
in connection with the Law of 8 November 2000, the Court considers
that neither the purpose of the law nor its content support the
contention that the applicant had a legitimate expectation of
obtaining monetary compensation as such. The law is simply silent on
this issue. Section 10 of the Law of 8 November 2000, which was
extensively relied upon by the applicant in the domestic proceedings,
cannot be interpreted as establishing a right to compensation for
participation in the liquidation of consequences of nuclear
emergencies as such or for any ensuing harm; all it provides for is
the responsibility of the Ministry of Health for organising and
supervising the allocation of various social benefits. Nor can other
legal provisions of the Law of 8 November 2000 be understood in the
Court’s view as providing the basis for the applicant’s
“legitimate expectation” of compensation attracting the
protection of Article 1 of Protocol No. 1. The Court subscribes in
this respect to the reasoning of the domestic courts, according to
which the Law of 8 November 2000 provides only for various types of
social benefits and does not envisage a right to monetary
compensation as such.
- Hence, the Court considers that Georgia acquired no
obligation under the Law of 8 November 2008 to compensate liquidators
of nuclear emergencies and the applicant cannot thus claim to have
had a legitimate expectation of being entitled to compensation (see,
mutatis mutandis, Klaus and Iouri Kiladzé v.
Georgia, no. 7975/06, §§ 55-62, 2 February 2010;
Sokolowski v. Poland (dec.), no. 39590/04, 7 July 2009; and
Bata v. Czech Republic (dec.), no. 43775/05 , 24 June 2008).
- As
regards the compensation claims under the Civil Code of 1997, the
Court notes that the domestic decision to reject them as lodged out
of time does not appear to have been arbitrary or manifestly
unreasonable. The Supreme Court applied Article 1008 of the Civil
Code, which states that a claim for damages is subject to a
three-year statutory bar after the date on which the victim first
knew about the damage or the authority in charge of it. As has
already been noted above, the applicant in the domestic proceedings
claimed to have suffered pecuniary and non-pecuniary damage as a
consequence of his participation in the liquidation work at
Chernobyl. The domestic courts thus correctly considered that the
statutory time-limit had started to run in 1987, the year the
applicant took part in the cleaning-up operation at Chernobyl, and
hence found his claim for damages lodged on 18 April 2003
time-barred.
- The
Court reiterates in this connection that no legitimate expectation
can be said to arise where there is a dispute as to the correct
interpretation and application of domestic law and the applicant’s
submissions are subsequently rejected by the national courts (see
Jantner v. Slovakia, no. 39050/97, §§
29-33, 4 March 2003, and Kopecký, cited above, §
50).
- Having
regard to all the above-mentioned, the Court considers that this part
of the complaint based on Article 1 of Protocol No. 1 is incompatible
ratione materiae and must be dismissed in accordance with
Article 35 §§ 3 and 4 of the Convention.
2. Right to free medical care and compensation stemming
from the alleged failure to provide the applicant with free medical
care
- The
applicant further argued that the right to free medical care or
indeed to compensation arising from the alleged failure to provide
him with the free medical care constituted a possession within the
meaning of Article 1 of Protocol No. 1, and that the failure of
the domestic courts to grant him pecuniary and non-pecuniary damage
in that respect also amounted to a deprivation of his possessions.
- The Court reiterated that the rule of exhaustion of
domestic remedies requires in principle that the complaints intended
to be made subsequently at the international level should have been
aired before the domestic authorities, at least in substance and in
compliance with the formal requirements laid down in domestic law
(see, amongst many others, Azinas v. Cyprus
[GC], no. 56679/00, § 38, ECHR 2004-III). According to the case
file, the applicant did not argue in the proceedings before the
domestic courts the issue he now raises with the Court concerning the
unavailability of free medical care and the right to pecuniary and
non-pecuniary damage arising therefrom. The Court observes that the
sole objective of the applicant in the domestic proceedings consisted
of claiming compensation for the pecuniary and non-pecuniary damage
allegedly caused him by his participation in the liquidation work at
Chernobyl.
- This
conclusion is supported by the content of the applicant’s
complaints at both levels of jurisdiction, as well as by the
arguments he voiced during the court proceedings. Hence, at neither
of the hearings did the applicant complain that the relevant
authorities had failed to provide him with free medical care in
general, or specific medical treatment in particular. Quite to the
contrary, when asked about this matter at the hearing of 16 September
2003, the applicant explicitly confirmed that he had no claims
against the Ministry of Health and that the issue of compulsory
medical insurance was of only secondary importance to him.
- The
Court thus finds that this part of the application should be rejected
for failure to exhaust the available domestic remedies in accordance
with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Ján Šikuta
Deputy
Registrar President
