Communicated on 16 February 2017
FOURTH SECTION
Applications nos. 42293/09 and 8443/12
Tsitsino BOTCHORISHVILI against Georgia
and Tsitsino BOTCHORISHVILI against Georgia
lodged on 6 July 2009 and 20 January 2012 respectively
STATEMENT OF FACTS
The applicant, Ms Tsitsino Botchorishvili, is a Georgian national who was born in 1946 and lives in Tbilisi. She is represented before the Court by Mr D. Shvelidze and Mr M. Sturua, lawyers practising in Tbilisi.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 14 March 1997 a gift contract was concluded between the applicant and the Independent Association of Journalists of Georgia whereby the latter donated to the applicant a non-residential building of 206.21 sq. m located at 2 Rike Square in Tbilisi. The Association in question had had its title to the property registered in accordance with the relevant regulations following a final court decision in its favour dated 26 November 1996. The applicant subsequently upgraded the building to function as a restaurant measuring 651 sq. m. Its change of use was approved by the municipal authorities on 23 May 2003. The applicant declared ownership of an adjacent plot of land measuring 737 sq. m and registered it as her property in the public registry on 1 April 2002.
On 26 April 2007 the building in question was demolished by the Supervisory Service of the Mayor’s Office as part of their campaign to transform the area into a public square. According to the applicant, she was not served with a demolition order or any other official document in this regard.
1. Proceedings concerning the validity of the applicant’s title to the plot of land and the demolished building
On 25 July 2007 the Tbilisi Mayor’s Office instituted proceedings before the Tbilisi City Court to challenge the validity of the public registry records concerning the applicant’s title to the property in question. Relying on an exception clause in the law on the basis of which the applicant had privatised the land in question, it was argued that the property had been registered in violation of the domestic legislation as it was not susceptible to privatisation measures by private persons. The Mayor’s Office requested that the registration records be declared null and void.
On 9 October 2007 the Tbilisi City Court granted the request from the Mayor’s Office in part, namely the request to declare the public registry records null and void with respect to the plot of land in question. The court found in this connection that the land concerned had been privatised erroneously as it fell outside the scope of the legislation that had been relied on for the purpose of privatisation. As regards the applicant’s title to the building, the court noted that
“it is impossible to discuss the legality of the public registry record concerning the [applicant’s] title to the building located at 2 Rike Square in Tbilisi because the validity of the gift contract ... which constitutes the legal basis of that record has not been challenged by the parties and accordingly the illegality of that contract is not established ...”
The applicant appealed, arguing that the request lodged by the Mayor’s Office was time-barred.
On 10 July 2008 the Tbilisi Court of Appeal upheld the lower court’s decision without addressing the applicant’s argument that the institution of proceedings was time-barred.
On 25 February 2009 the Supreme Court upheld the lower courts’ findings. It addressed the applicant’s argument concerning the prescription period, noting that the nullity request was not time-barred in view of the evidence indicating the date on which the Mayor’s Office had become aware of the registration of the plot of land in question.
2. Proceedings for damages
On 22 May 2007 the applicant instituted proceedings to claim damages for the demolition of the building in question. The proceedings were stayed until 11 May 2009 in view of the pending litigation concerning the applicant’s title to the disputed property.
On 26 April 2011 the Tbilisi City Court found against the applicant. It took note of the developments in the first set of proceedings, observing that her title to the building had not been challenged. Nevertheless the court rejected the applicant’s claim, stating that the latter had not contained any evidence to prove that the applicant’s property had been demolished by the supervisory service of the Mayor’s Office. It further referred to the absence of a crime under Article 187 (damage or destruction of property causing considerable harm) of the Criminal Code in order to explain the reason why the respondent party could not be held responsible for the demolition.
The applicant appealed on 27 May 2011, arguing that the criminal law provisions were of no relevance to the compensation claim and referring to various sources in the case file pointing to the involvement of the Mayor’s Office in the demolition process. She further requested that she be exempted from payment of the court fee of 5,000 Georgian laris (GEL – approximately 2,000 Euros (EUR)) since her only source of income was a state pension of GEL 87 (approximately EUR 32).
On 10 June 2011 the applicant’s request was rejected as unsubstantiated and she was granted additional time to pay the court fee.
On 21 June 2011 the applicant informed the court that she had managed to assemble GEL 2,500 by means of a loan and requested that the payment of the remaining half of the court fee be deferred to the end of proceedings.
On 23 June 2011 the Tbilisi Court of Appeal rejected the applicant’s deferral request − stating that the applicant had failed to demonstrate financial hardship − and extended the deadline to pay the remaining sum.
On 28 June 2011 the applicant requested a further extension in view of her inability to secure the remaining sum. Her request was granted and she was given an additional five days.
On 5 July 2011 the applicant provided proof of payment of an additional GEL 500 to the court and submitted a deferral request with respect to the remaining sum until 15 August 2011.
On 8 July 2011 the Tbilisi Court of Appeal rejected the applicant’s request and left her appeal unexamined. The applicant appealed to the Supreme Court, arguing that she had been deprived of her right of access to court.
On 9 November 2011 the Supreme Court rejected the applicant’s appeal in a final decision in which it held that the Court of Appeal had acted within its discretionary powers to assess the evidence and decide on the matter of deferral.
B. Relevant domestic law and practice
The relevant domestic law concerning court fees has been described in the case of FC Mretebi v. Georgia (no. 38736/04, § 29, 31 July 2007).
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that the refusal of the domestic courts to defer the payment of a high court fee violated her right of access to court.
QUESTION TO THE PARTIES
In the light of the Court’s findings in the cases of FC Mretebi v. Georgia (no. 38736/04, §§ 38-50, 31 July 2007) and Kreuz v. Poland (no. 28249/95, §§ 52-67, ECHR 2001‑VI), has there been a violation of the applicant’s right of access to court, as guaranteed by Article 6 of the Convention?
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