BURDIASHVILI AND OTHERS v. GEORGIA

FOURTH SECTION

DECISION

Application no. 26290/12
Zeinab BURDIASHVILI and others
against Georgia

The European Court of Human Rights (Fourth Section), sitting on 4 April 2017 as a Chamber composed of:

Ganna Yudkivska, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar

Having regard to the above application lodged on 1 May 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. They are all Georgian nationals, represented by Ms Natia Katsitadze and Mr Philip Leach, lawyers practising in Tbilisi and London.

2. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze, of the Ministry of Justice.

A. The circumstances of the case

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

1. Background

4. The Soviet Political Repression Act of 11 December 1997 (“the Act of 11 December 1997”) provided that Georgian nationals who had suffered various forms of political persecution on the territory of the former Soviet Union between February 1921 and 28 October 1990, as well as their first-generation heirs, could claim compensation for non-pecuniary damage. In particular, section 9 of the Act read as follows:

“A person who has been recognised as a victim of political repression on account of having been subjected to deprivation of liberty, resettlement, exile, forceful placement in a special place of residence or a psychiatric hospital, or who died as a result of such repression, or this victim’s first-generation heir, shall receive monetary compensation, the amount and procedures for payment of which shall be established by law.”

5. Despite the general undertaking contained in section 9 in fine of the Act of 11 December 1997, the Georgian State did not enact legislation defining the amount and procedures for payment of the relevant compensation.

2. The Court’s judgment in the case of Klaus and Yuri Kiladze v. Georgia

6. In its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze, the Court found a violation of Article 1 of Protocol No. 1 on account of the respondent State’s failure to undertake the necessary measures to ensure the effective exercise of the applicants’ right to receive monetary compensation for non-pecuniary damage under section 9 of the Act of 11 December 1997 (see Klaus and Yuri Kiladze v. Georgia, no. 7975/06, §§ 68 and 74-77, 2 February 2010).

7. Applying Article 46 of the Convention, the Court stated that, since the finding of a violation under Article 1 of Protocol No. 1 concerned a large number of people and reflected a structural problem, it was urgent to undertake the necessary legislative, administrative and budgetary measures at the domestic level in order that victims of Soviet political repression, who were targeted by section 9 of the Act of 11 December 1997, could effectively benefit from the right to receive compensation under that section (see Klaus and Yuri Kiladze, cited above, §§ 84 and 85). Applying Article 41 of the Convention, the Court also held that if the necessary measures (legislative and other) were still lacking six months after the date on which the judgment became final, the respondent State would have to pay each of the two applicants, in accordance with Article 44 § 2 of the Convention, 4,000 euros (EUR) in respect of non-pecuniary damage (ibid., § 90).

8. As the necessary general measures were not implemented by the respondent State within the above-mentioned time-limit of six months, each of the two applicants in that case duly received EUR 4,000 from the respondent State, as indicated by the Court.

3. First wave of legislative adjustment – Amendments of 19 April 2011

9. For the purposes of implementing the general measures indicated by the Court under Article 46 of the Convention in its judgment of 2 February 2010, in March-April 2011 the Parliament of Georgia introduced draft amendments to the Act of 11 December 1997 and the Code of Administrative Procedure.

10. On 14 April 2011 the Government submitted the above-mentioned draft amendments to the Committee of Ministers of the Council of Europe (see paragraphs 25 and 26 below).

11. On 19 April 2011 the amendments were adopted, with certain modifications, by the Parliament of Georgia. They entered into force on 18 May 2011 (hereinafter “the Amendments of 19 April 2011”).

12. Thus, under the new Article 21 §§ 26-29 of the Code of Administrative Procedure, victims of Soviet political repression or their first-generation heirs had until 1 January 2014 to lodge applications with the Tbilisi City Court for monetary compensation under section 9 of the Act of 11 December 1997. The new provisions of the Code also provided for various additional procedures for the lodging of such applications, their examination by the Tbilisi City Court and subsequent appellate proceedings before the Tbilisi Court of Appeal, the latter acting as the final level of jurisdiction in such matters.

13. As to the amount(s) of compensation payable under section 9 of the Act of 11 December 1997, they were not fixed by any of the above‑mentioned legislative amendments. Instead, a new subsection (4) was added to section 9 of the Act, stating that the relevant domestic court had the competence to determine an appropriate amount of compensation in each case, having regard to the particular factual circumstances:

Section 9(4)

“The amount of compensation shall be determined by the court on the basis of the gravity of the form of coercion in question ... [deprivation of liberty, resettlement, exile, forceful placement in a special place of residence or a psychiatric hospital or death], as well as the age and health of the repressed person or his/her first-generation heir, and other objective factors.”

14. As confirmed by the official statistics issued by the Tbilisi City Court on 16 September 2011, within five months of the entry into force of the above-mentioned legislative amendments, more than 3,000 applications for monetary compensation under section 9 of the Act of 11 December 1997 were lodged with the City Court, out of which seventy-three cases were decided. The compensation awards in the cases examined varied from 100 to 500 Georgian Laris ((GEL) – EUR 46 and EUR 230 respectively), the maximum amount having been awarded only to the first-generation heirs of victims of repression who had been executed by the Soviet State.

4. The applicants’ individual cases

15. All four applicants (see the appendix below) are first-generation heirs of victims of Soviet political repression. In July 2011, after the entry into force of the Amendments of 19 April 2011 (see paragraphs 9‑14 above), they lodged applications with the Tbilisi City Court for monetary compensation under section 9 of the Act of 11 December 1997.

16. Thus, the first applicant requested GEL 15,000 (EUR 7,000). She referred, amongst other circumstances, to her age (she was seventy-two years old), poor state of health and, most importantly, to the fact that her father had been recognised, by a court decision of 11 May 1998, as a victim of Soviet repression on account of his arbitrary conviction by a Soviet military tribunal for proffering anti-Soviet statements and his consequent execution by a firing squad in October 1942.

17. As to the second, third and fourth applicants, who are siblings, they jointly requested GEL 25,000 (EUR 11,820). The applicants submitted that their father had been recognised as a victim of political repression in 1997 on account of his arbitrary conviction in 1951 by a Soviet military tribunal for high treason; their father had first been sentenced to twenty-five years’ imprisonment but had been pardoned and released from detention in 1955.

18. On 17 August and 19 September 2011 the Tbilisi City Court, in the context of two separate and unrelated sets of proceedings, allowed the applicants’ claims in part. On 1 and 15 November 2011 the Tbilisi Court of Appeal upheld those decisions on appeal. The first applicant was granted compensation of GEL 400 (EUR 190), whilst the second, third and fourth applicants were jointly awarded the sum of GEL 290 (EUR 137).

19. The reasons given by the domestic courts in their decisions were similar in both sets of proceedings. Thus, at first instance, the Tbilisi City Court, taking into account the relevant domestic provisions as well as the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), noted that the amount of compensation payable under section 9 of the Act of 11 December 1997 had not been fixed by law but, on the contrary, had been left to be determined by the relevant court on the basis of the particular circumstances of each individual case. On the other hand, since it was impossible to assess all the suffering, injustice and harm caused by the various drastic forms of Soviet political repression, any such amount of compensation could only be, by its very nature, symbolic. No monetary compensation could ever serve as sufficient non-pecuniary relief. More important in this regard was the fact that the Georgian State had acknowledged the historical injustice as such. The court added that the respondent State had fully complied with the Court’s judgment of 2 February of 2010 by introducing legislative amendments aimed at filling “the legislative vacuum” which had been criticised by the Court.

20. As to the appellate proceedings, the Tbilisi Court of Appeal, in reply to the applicants’ argument that the domestic awards were derisory and disproportionate in comparison with the sums awarded by the Court in its judgment in the case of Klaus and Yuri Kiladze (cited above, § 90), stated that the domestic courts retained a broad discretionary power to determine amounts of compensation. The appellate court pointed out that the Court itself had acknowledged that the respondent State should remain free to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court (ibid. § 88); the Court had not indicated to the respondent State any specific amount of compensation to be paid under section 9 of the Act of 11 December 1997. The appellate court also stated that, although the amount of compensation should not be less than the minimum wage in Georgia (some EUR 74), the State’s budgetary capacities and the overall number of victims of Soviet political repression (several thousands of people) should also be taken into account when determining the award.

5. Second wave of legislative adjustment – the Amendments of 31 October 2014

21. For the purposes of further implementation of the general measures indicated by the Court in its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), a second wave of legislative measures was initiated by the respondent State on 31 October 2014. Notably, on the latter date Parliament made a number of significant amendments to the Act of 11 December 1997 and the Code of Administrative Procedure, which came into force on 1 January 2015 (hereinafter “the Amendments of 31 October 2014”).

22. In particular, the amended section 9(4) of the Act of 11 December 1997 determined the range of compensation payable to victims of Soviet political repression. Thus, the minimum amount payable under the law was fixed at GEL 1,000 (EUR 454), whilst the maximum amount within the range was set at GEL 2,000 (EUR 908). The provision further specified that the exact amount payable as compensation should be determined by a domestic court within the above-mentioned range in the light of the particular circumstances of each case, such as the gravity or the type of persecution in question, the age and health of the claimant – the victim of Soviet political repression or of his or her first-generation heir – and other relevant factors.

23. Furthermore, in order to assist those victims of Soviet political repression whose claims had already been decided under the preceding version of section 9(4) of the Act of 11 December 1997, the Amendments of 31 October 2014 provided that the legislation would have retroactive effect. In particular, they stated that those victims of Soviet political repression, or their first-generation heirs, who had already been awarded compensation by the Tbilisi City Court in amounts falling below the minimum threshold set by the new section 9(4) of the Act (compare paragraphs 13 and 22 above) were entitled to re-apply to a court for a fresh assessment of the particular circumstances of their case, determination of the amount of compensation payable under the amended section 9(4) and, if applicable, payment of the difference between the new amount thus determined and the previous award.

24. The Amendments of 31 October 2014 further re-worded Article 21 § 26 of the Code of Administrative Procedure to state that together with the Tbilisi City Court, which maintained jurisdiction to hear claims from victims of Soviet political repression or their first-generation heirs residing in the east of Georgia, the Kutaisi City Court was vested with jurisdiction to hear claims emanating from claimants residing in the west of the country.

B. Documents adopted by the Committee of Ministers of the Council of Europe

25. During their 1108th meeting held on 10 March 2011, in the context of their supervision of the execution of the Court judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), the Committee of Ministers adopted a decision, which reads as follows:

“The Deputies,

1. took note with satisfaction that the just satisfaction as well as the default interest due have been paid to the applicants;

2. took note with interest of the preliminary action plan which has been submitted by the Georgian authorities according to which a draft law has been prepared which will be submitted to the Parliament in March 2011;

3. invited the Georgian authorities to submit to them a consolidated action plan for their 1115th meeting (June 2011).”

26. During their 1115th meeting held on 8 June 2011, the Committee of Ministers adopted another decision on the matter, which reads as follows:

“The Deputies,

1. took note, with satisfaction, of the action plan submitted by the Georgian authorities according to which in April two draft laws were being discussed before Parliament with implementation by the Tbilisi court expected to begin in May 2011: the first amending the [Act of 11 December 1997], in order to provide for compensation for victims; the second one amending the Code of Administrative Proceedings in order to organise the practical modalities of granting such compensation;

2. also took note with satisfaction of the subsequent information (adoption on 19/04/2011 of the amendment to [Act of 11 December 1997] and publication in the Official Journal of 18 May 2011) showing that the action plan is being implemented within the foreseen timeframe;

3. decided therefore to transfer this case for examination under the standard supervision procedure.”

27. Lastly, during their 1222nd meeting held on 12 March 2015, the Committee of Ministers adopted a Resolution (CM/ResDH(2015)41) on the closure of supervision of the execution of the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above). The relevant parts of the Resolution read as follows:

“Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established; ...

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court ...;

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

Declares that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

Decides to close the examination thereof.”

COMPLAINTS

28. The applicants complained that the examination of their claims under the Amendments of 19 April 2011, which had resulted in the award of derisory sums of compensation, constituted a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

THE LAW

29. The applicants challenged, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the examination of their claims for non‑pecuniary damages by the domestic courts. The relevant parts of those provisions read as follows:

Article 6 § 1

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

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. ...”

A. The parties’ arguments

30. The Government submitted that in order to improve the initial mechanism of compensation set up by the first wave of legislative amendments (see paragraphs 9 and 14 above), as well as to make the amount of compensation payable to the victims of Soviet political repression more appropriate and respectable, a second wave of relevant legislative, budgetary and financial measures had been initiated by the Georgian State (see paragraphs 21 and 24 above). The essential purpose of those new measures was (i) to increase the amount of compensation to be awarded; (ii) to determine statutory minimum and maximum amounts of compensation for the sake of legal certainty; and (iii) to expand the territorial jurisdiction of the courts empowered to hear the relevant cases.

31. The applicants replied that neither the first nor the second wave of legislative, budgetary and administrative measures implemented by the respondent State had been sufficient to enable it to meet its international obligations, which followed from the findings of violations under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze. Having regard to the alleged insufficiency of the respondent State’s attempts to comply with the Court’s judgment, the applicants maintained that, given the deficient legislative and budgetary framework, the examination of their individual cases by the domestic courts had obviously been conducted with procedural flaws and had resulted in the award of derisory sums of money. In particular, the main shortcoming had consisted in the domestic courts’ alleged failure, brought about as a result of the deficiency of the Amendment of 19 April 2011, to take into account the individual circumstances of each of the applicants’ cases and to base the awards of compensation on their particular circumstances, varying the amounts accordingly. As to the second wave of legislative changes, the Amendments of 31 October 2014, the applicants acknowledged that fixing the statutory minimum and maximum amounts of compensation payable was a positive development. However, they still feared that the domestic courts would not have clear indications as to exactly how to calculate the awards.

B. The Court’s assessment

32. At the outset, the Court observes that the present case is readily dissociable from that of Klaus and Yuri Kiladze. In the latter case the Court found a violation of Article 1 of Protocol No. 1 on account of the fact that the applicants’ claim in respect of non-pecuniary damage under section 9 of the Act of 11 December 1997 had been rejected by the domestic courts for absence of the relevant regulatory framework (see Klaus and Yuri Kiladze, cited above, §§ 15-21 and 71-77, as well as paragraphs 4-8 above). In the case at hand, however, the applicants’ identical claim in respect of non‑pecuniary damage was, on the contrary, allowed by the domestic courts under the Amendments of 19 April 2011, which had already been adopted. That being so, it cannot be assumed, even arguably, that the applicants meant to claim a breach of their rights under the Convention on account of the historical situation in the Klaus and Yuri Kiladze case, which has already been extinguished.

33. Having regard to the parties’ arguments, the Court considers that the genuine subject-matter of the present application is the applicants’ attempt to demonstrate that the examination of their individual cases by the domestic courts under the Amendments of 19 April 2011 exposed the respondent State’s failure to remedy the situation which had led to the finding of a violation of Article 1 of Protocol No. 1 in the Klaus and Yuri Kiladze case (see paragraphs 28, 30 and 31 above). In other words, the applicants wish to hold the respondent State accountable for the allegedly inadequate implementation of the general measures indicated by the Court under Article 46 of the Convention in its judgment of 2 February 2010 in the above-mentioned case. However, even assuming that the Court has jurisdiction in the present case to verify whether or not the respondent State has complied with its obligations under Article 46 of the Convention (compare with Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 35, ECHR 2015; Egmez v. Cyprus (dec.), no. 12214/07, § 50, 18 September 2012; Kudeshkina v. Russia (no. 2) (dec.), no. 28727/11, §§ 74‑81, 17 February 2015; Rózsa v. Hungary (dec.), no. 53815/11, § 15, 7 April 2015; Harabin v. Slovakia (dec.), no. 33800/14, § 31, 2 June 2015; Meltex Ltd v. Armenia (dec.), no. 45199/09, §§ 37‑41, 21 May 2013; Costică Moldovan and Others v. Moldova (dec.), no. 8229/04, §§ 125‑127, 15 February 2011; Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010; Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004, and Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003‑IX), the Court cannot enter into a discussion of whether or not the legislative Amendments of 19 April 2011 have sufficiently remedied the situation exposed in its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze.

34. That being said, obviously the Court does not rule out that, just because the respondent State has undertaken general measures to remedy the violation found by the Court in the Klaus and Yuri Kiladze case, the domestic proceedings in the case at hand may have raised new issues under the Convention (see, amongst others, Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 62, ECHR 2009, and Egmez, cited above, § 51). Nevertheless, the Court reiterates that the present application cannot be a follow-up to the situation examined in the Klaus and Yuri Kiladze case, nor may it relate to the specific context of a continuing violation of a Convention right (see paragraph 32 above and compare and contrast with, for example, Liu v. Russia (no. 2), no. 29157/09, §§ 65-68, 26 July 2011, Emre v. Switzerland (no. 2), no. 5056/10, §§ 38‑44, 11 October 2011; Rongoni v. Italy, no. 44531/98, §§ 13-16, 25 October 2001, and Ivanţoc and Others v. Moldova and Russia, no. 23687/05, §§ 93‑96, 15 November 2011).

35. That being so, even assuming that the applicants meant to challenge the domestic proceedings independently from the question of whether the Amendments of 19 April 2011 were satisfactory for the purposes of Article 46 of the Convention, the Court observes, in so far as the applicants’ reference to Article 6 § 1 is concerned, that they did not allege that any procedural irregularity had been committed in the course of those proceedings. Without claiming that there had been any procedural unfairness, the applicants focused exclusively on calling into question the outcome of those proceedings, namely the amount of compensation awarded to them. A complaint formulated in such a way under Article 6 § 1 is unmistakeably of a “fourth instance” nature (see, amongst many others, FC Mretebi v. Georgia, no. 38736/04, § 31, 31 July 2007). Furthermore, the relevant domestic decisions do not disclose any arbitrary or manifestly unreasonable reasoning in the present case (contrast with Donadze v. Georgia, no. 74644/01, § 32, 7 March 2006).

36. Moreover, the complaint about the outcome of the domestic proceedings cannot be validly taken into consideration under Article 1 of Protocol No. 1 either, given that neither the Act of 11 December 1997, nor the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze, the Amendments of 19 April 2011 (see paragraphs 9-14 above) or any other national or international legal act gave the applicants any legitimate expectation that they would obtain specific amounts of compensation at the time when their cases were pending before the domestic courts (see paragraphs 6-7 and 19-20 above and compare with, for instance, Lanchava and Others v. Georgia (dec.), no. 25678/09, § 19, 7 February 2012). Article 1 of Protocol No. 1 does not guarantee the right to acquire possessions. It cannot therefore be construed as a guarantee that the desired outcome will be obtained in civil litigation (see, mutatis mutandis, Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002‑II (extracts), and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004‑II).

37. In the light of the foregoing considerations, having regard to the various admissibility problems that cumulatively affect the present case, the Court considers that the application is overall manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 April 2017.

Marialena TsirliGanna Yudkivska
RegistrarPresident

Appendix

1. Mrs Zeinab BURDIASHVILI (“the first applicant”) was born in 1939 and lives in Tbilisi.

2. Mrs Nineli CHAKHVADZE (“the second applicant”) was born in 1949 and lives in Tbilisi.

3. Mrs Medea CHAKHVADZE (“the third applicant”) was born in 1951 and lives in Batumi.

4. Mr Vaja CHAKHVADZE (“the fourth applicant”) was born in 1957 and lives in Ozurgeti.

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