FIFTH SECTION
DECISION
Applications nos. 12611/08 and 25500/08
Nunu ALASANIA against Georgia
and Levan BARDAVELIDZE against Georgia
The European Court of Human Rights (Fifth Section), sitting on 9 October 2018 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above applications lodged on 14 March 2008 and 1 March 2008 respectively,
Having regard to the declarations submitted by the respondent Government on 1 and 15 September 2016 and 17 January 2017 requesting the Court to strike the applications out of the list of cases and the applicants’ reply to those declarations,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant in the first case, Ms Nunu Alasania, is a Georgian national who was born in 1950 and lives in Tbilisi. She was represented before the Court by Mr N. Kvaratskhelia, a lawyer practising in Tbilisi.
2. The applicant in the second case, Mr Levan Bardavelidze, is a Georgian national who was born in 1967 and lives in Tbilisi. He was represented before the Court by Ms I. Ujmajuridze, a lawyer practising in Tbilisi.
3. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
4. The facts of the cases, as submitted by the parties, may be summarised as follows.
A. Domestic proceedings
5. The applicants were judges of the Tbilisi Regional Court, sitting in the Chamber of Criminal Affaires. They started to serve their ten years’ terms of office at different times in 2002.
6. Due to a reorganisation of the judicial system, the Tbilisi Regional Court was liquidated and replaced by a new level of appellate jurisdiction – the Tbilisi Court of Appeals – in 2005. Both applicants continued to exercise their judicial duties at that newly created judicial body.
7. On 4 April 2007 the High Council of Judiciary launched, on the basis of a complaint addressed under Section 6 (2) of the Act on Disciplinary Liability of Judges by the President of the Supreme Court, disciplinary proceedings against the applicants for multiple episodes of miscarriage of justice allegedly committed in various unconnected sets of criminal proceedings under their examination between 2003 and 2005.
8. By a decision of 18 May 2007, the Disciplinary Board of Courts of Common Jurisdiction, after having conducted an adversarial hearing, found the applicants, inter alia, liable for repeated breaches of professional duties under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges – “gross and/or multiple violation of law” – and imposed upon them the sanction of dismissal from office, as provided for by Section 4 (1) of the same Act (see paragraph 19 below).
9. The decision of 18 May 2007 was upheld by a majority of the Disciplinary Chamber of the Supreme Court of Georgia on 12 September 2007. One of the judges sitting in the Disciplinary Chamber expressed a dissenting opinion. He stated that, whilst there might have been certain procedural irregularities committed by the applicants in the exercise of their judicial duties, it was inappropriate to sanction them with the most severe form of disciplinary punishment – dismissal from office. Given that neither of the applicants had been subject to disciplinary proceedings before, the Supreme Court judge concluded that it would have been sufficient to sanction them by a reprimand.
10. Both applicants, who were found liable under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges, were consequently barred, under Section 34 (2) of the Act on Courts of Common Jurisdiction, as that provision stood at the material time, from holding judicial posts again.
B. Proceedings before the Court
11. On 6 October 2015, after having conducted a preliminary assessment of the admissibility aspects of the two cases, the Court decided to give notice of the applications to the Government under both civil and criminal limbs of Article 6 § 1 the Convention.
12. After the failure of attempts to reach a friendly settlement, by letters of 1 and 15 September 2016 and 17 January 2017, the Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issues raised by the relevant parts of the applications.
13. Notably, after having acknowledged a violation of Article 6 § 1 of the Convention under its civil limb in relation to the disciplinary proceedings conducted against the applicants, the Government undertook to pay to Ms N. Alasania and Ms L. Bardavelidze EUR 4,000 (four thousand euros) each to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to them. These sums will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
14. The Government also submitted that, since the legal ground for the applicants’ disciplinary sanction – Section 2 (2) (a) of the Act on Disciplinary Liability of Judges – had been repealed by Parliament of Georgia on 27 March 2012, both applicants became entitled, as of 1 August 2014, to apply for other judicial offices in the country (see paragraphs 21 and 22 below). In other words, further remedies aimed at a fuller restoration of their rights were still open to the applicants at the domestic level.
15. In the light of the above considerations, the Government requested the Court to strike out the relevant complaints of the applicants in accordance with Article 37 of the Convention.
16. By letters of 7 and 17 October 2016 and 25 May 2017, the applicants indicated that they were not satisfied with the terms of the unilateral declarations. They submitted that the Government’s declarations could not constitute adequate redress for the distress and anxiety that had been caused to them by the unfair disciplinary proceedings.
C. Relevant domestic law
1. As the law on disciplinary liability of judges stood in 2005-2006
17. Section 2 (2) (a) of the Act of 23 February 2000 on Disciplinary Liability of Judges, as amended on 23 June 2005 and applicable at the time of the events complained of by the applicants, provided, amongst other, for the following type of disciplinary offence – “gross and/or multiple violation of law committed during the adjudication of a matter in court”.
18. Section 2 contained a further comment, which read as follows:
“A gross violation of law committed during the adjudication of a matter in court is a violation of significant scope which has already caused in actual fact or could potentially have caused disadvantage to the legitimate rights and interests of a main party to the proceedings or a third party. Violation of law is considered to have been multiple when it was committed three or more times.
If misinterpretation and misapplication of law has been prompted by the judge’s inner faith, it shall not be considered as ‘a gross and/or multiple violation of law’.”
19. Section 4 (1) of the above-mentioned Act provided for the list of various disciplinary penalties in order of their severity: admonishment, reprimand, rebuke and dismissal from the judicial post.
20. Pursuant to Section 6 (2) of the above-mentioned Act, the High Council of Justice was vested with power to initiate disciplinary proceedings against a judge for an offence liable under Section 2 (2) (a).
2. Subsequent amendments to the law on disciplinary liability of judges
21. On 27 March 2012 Section 2 (2) (a) of the Act of 23 February 2000 on Disciplinary Liability of Judges was repealed.
22. Furthermore, on 1 August 2014 Parliament adopted an amendment to Section 34 (2) of the Act on Courts of Common Jurisdiction, according to which if a legal norm that had originally constituted the basis for disciplinary dismissal of a judge was subsequently repealed, the dismissed judge was no longer barred from re-applying for and holding another judicial office (see paragraph 10 above).
THE LAW
23. The applicants complained under both civil and criminal limbs of Article 6 § 1 of the Convention that the disciplinary proceedings against them had been unfair because the legal basis for their disciplinary dismissal from the judicial offices – Section 2 (2) (a) of the Act on Disciplinary Liability of Judges – had lacked the requisite precision, clarity and foreseeability. The cited provision reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ...”
24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
A. As regards the complaint under the civil limb of Article 6 § 1 of the Convention
25. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
26. In certain circumstances, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
27. To this end, the Court has examined the declarations submitted by the Government in the present case in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
28. The Court has established in a number of cases, including those brought against Georgia, its practice under Article 6 § 1 of the Convention concerning complaints about the fairness of disciplinary proceedings conducted against judges (see, for example, Denisov v. Ukraine [GC], no. 76639/11, §§ 44-82, 25 September 2018; Baka v. Hungary [GC], no. 20261/12, §§ 100-122, ECHR 2016; Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 83-156, ECHR 2013; Sturua v. Georgia, no. 45729/05, §§ 19-36, 28 March 2017; Olujić v. Croatia, no. 22330/05, §§ 26-91, 5 February 2009, and Mariamidze v. Georgia (dec.), no. 9154/06, 19 September 2017).
29. Having regard to the nature of the admissions contained in the Government’s declarations, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the relevant parts of the applications (Article 37 § 1 (c)).
30. In this respect, the Court attaches further significance to the fact that, subsequent to the relevant legislative amendments, both applicants’ disciplinary records under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges have been irrevocably erased, and they have thus become eligible to re-apply for and hold judicial offices again if they so desire (see paragraphs 10, 14, 21 and 22 above).
31. In light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the parts of the applications covered by the Government’s unilateral declaration (Article 37 § 1 in fine).
32. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declarations, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
33. In view of the above, it is appropriate to strike the applications out of the list under Article 37 § 1 (c) of the Convention in so far as they relate to the complaints lodged by the applicants under the civil limb of Article 6 § 1 of the Convention.
B. As regards the remainder of the applications
34. As regards the complaints concerning the criminal limb of Article 6 § 1 of the Convention, the Government objected that, according to the Court’s case-law, those complaints were incompatible ratione materiae with the invoked provision.
35. The applicants disagreed.
36. The Court, in line with its previous findings on the dismissal of judges from their posts, reiterates that the disciplinary proceedings in the present case did not attract the applicability of the criminal limb of Article 6 § 1 of the Convention (see Denisov, cited above, § 43; Sturua, cited above, § 28; Mariamidze, the decision cited above, § 21, and also compare with Oleksandr Volkov, cited above, §§ 92-95).
37. Accordingly, the present applications are, in so far as they relate to the applicants’ complaints under the criminal limb of Article 6 § 1 of the Convention, incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declarations concerning the complaints lodged by the applicants under the civil limb of Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 8 November 2018.
Milan BlaškoAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy