FOURTH SECTION
DECISION
Application no. 40085/09
Vartazar EGIAZARYAN
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 24 November 2015 as a Committee composed of:
Krzysztof Wojtyczek, President,
Nona Tsotsoria,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 2 July 2009,
Having regard to the declaration submitted by the respondent Government on 21 July 2014 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Vartazar Egiazaryan, is a Georgian national, who was born in 1982 and lives in Tbilisi. He is represented before the Court by Ms Natia Katsitadze and Ms Joanna Evans, lawyers practising in Tbilisi and London.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
4. Soon after the change of power took place in Georgia in November 2003, political tensions escalated between the central government in Tbilisi and the local government of the Ajarian Autonomous Republic (“the AAR”) (see also Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13 and 112‑113, ECHR 2008). Clashes between supporters of and opposition to the then Head of the AAR, Mr A. Abashidze, took place on various dates in different cities and villages of the AAR.
5. The tension started rapidly deteriorating as of March 2004, and already in April various high ranking military officials of the AAR declared their disobedience to the central authorities in Tbilisi. Consequently, the local authorities ordered planting mines on the edge of Choloki River, the administrative border between the Autonomous Republic and the rest of the country.
6. The situation stabilised only after Mr A. Abashidze and his entourage finally agreed on 6 May 2004, after rounds of negotiations with Tbilisi, to quit their posts in the AAR and leave the country.
7. Whilst that information was never officially confirmed, according to various media sources, special units of the Ministry of the Interior conducted mine clearance in the AAR. It was further reported that more than 200 anti-vehicle mines were discovered and cleared on the edge of Choloki River in May 2004. In addition, some 128 mines were cleared on a seaside zone adjacent to various villages of the AAR.
2. Incident of 21 August 2004
8. In August 2004, during a high tourist season, the applicant went on vacation to the seaside townlet of Chakvi, in the AAR.
9. On 21 August 2004 he and his friends were driving a car on the beach of Chakvi, when suddenly their car blew up. The applicant and one of his friends received serious, life-threatening injuries and were immediately taken to a hospital in Batumi, where the applicant underwent an amputation of both shanks. All the costs associated with that urgent treatment in the hospital and the subsequent, post-surgery treatment with various relevant medication (with the overall costs amounting to some 3,500 euros), as well as the procurement of special prostheses for his lost limbs from Germany, manufactured by the Ottobock company (the cost of the prostheses amounting to 24,000 euros), were fully covered by the Ministry of Labour, Health and Social Affairs.
3. Legal proceedings
10. On 28 July 2005 the applicant sued the Ministry of the Interior of Georgia for the incident of 21 August 2004. He claimed that it was within that Ministry’s responsibility to conduct mine clearance in Chakvi and on the edges of Choloki River in May 2004 in due time and with the requisite thoroughness. As the Ministry had clearly failed in that positive obligation, it was now responsible to pay him, under the relevant rules on tort, a compensation for pecuniary and non-pecuniary damages.
11. By a judgment of 24 October 2006, the Tbilisi City Court dismissed the applicant’s civil action. With respect to the claim for pecuniary damage, the court referred to the fact that the State had already provided him with the relevant medical treatment and prostheses free of charge. As to his claim for non-pecuniary damage, the court stated that the factual circumstances of the case could not establish negligence on behalf of the Ministry of the Interior during the mine clearance operation. Notably, it could not be established that the Ministry or any other State agency had known, prior to the incident of 21 August 2004, that the beach in the vicinity of Chakvi had been mined.
12. The judgment of 24 October 2006 was upheld by the Tbilisi Court of Appeals’ decision of 14 May 2008. The appellate court fully endorsed the reasons given by the lower instance.
13. On 18 February 2009 the Supreme Court of Georgia, rejecting the applicant’s cassation claim against the appellate decision of 14 May 2008, finally terminated the civil proceedings.
B. Relevant domestic law
1. The Code of Civil Procedure
14. Article 423 § 1 (g) of the Code on Civil Procedure reads as follows:
“A final and enforceable judgment can be reviewed on the basis of newly discovered circumstances, if ... (e) the European Court of Human Rights has established in a final judgment (or in a decision) a breach of a provision of the Convention or of the Protocols thereto and the impugned [domestic] judgment is based on that breach.”
2. Judicial practice concerning the re-opening of civil proceedings on the basis of the Court’s strike-out decision – the case of Maya and Giorgi Okroshidze
15. By its decision of 11 December 2012, the Court struck out the case of Okroshidzeebi v. Georgia (see Okroshidzeebi v. Georgia (dec.), no. 60596/09, §§ 1‑18, 11 December 2012), on the basis of the Government’s unilateral declaration. The terms of that declaration contained, amongst other things, an explicit acknowledgment of a violation of a provision of the Convention which had given rise to the communication of the application. The Court confirmed that that acknowledgement could serve as a ground for a subsequent re-opening of the relevant civil proceedings at the domestic level.
16. By a judgment 13 January 2014, the Tbilisi City Court, having regard to the Court’s above mentioned strike-out decision of 11 December 2012, decided to reopen the initial civil proceedings, in accordance with Article 423 § 1 (g) of the Code of Civil Procedure. Subsequently, the reopened civil proceedings were decided in favour of the applicants, Maya and Giorgi Okroshidze.
COMPLAINTS
17. The applicant complained under Article 2 of the Convention about the respondent State’s failure to conduct mine clearance in Chakvi in due time and manner, as a result of which negligence he had received serious, life-threatening injuries and become disabled.
18. Citing Article 6 § 1 of the Convention, the applicant complained about the length of the civil proceedings. Lastly, citing Article 13 of the Convention and Article 1 of Protocol No. 1, the applicant reiterated his complaint about the inability to obtain damages from the Ministry of the Interior.
THE LAW
19. On 7 May 2013 notice of the application was given to the Government under Article 2 of the Convention.
A. As regards the communicated part of the application
20. After the failure of attempts to reach a friendly settlement, by a letter of 21 July 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the communicated part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
21. To that end, the Government acknowledged a violation of Article 2 of the Convention on account of the relevant State authorities’ failure to comply with their relevant positive obligations to take all the necessary preventive safety measures aimed at avoiding the life-threatening incident of 21 August 2004 which had caused the applicant’s disability.
22. To remedy the situation caused by the above-mentioned breach of the Convention, the Government proposed to pay to the applicant 8,000 (eight thousand) Euros. The Government also acknowledged that the applicant could apply to the relevant State social security agency for renewal of the requisite prosthetic-orthopaedic equipment for the lost limbs and benefit from other social benefits envisaged by the relevant Georgian legislation. As a proof of the fact that the applicant possessed standing to request renewal of his prosthesis, the Government submitted a letter from the Ministry of Labour, Health and Social Affairs, which document explicitly confirmed such a possibility upon submission by the applicant of a set of documents. Finally, to emphasise the adequacy of their offers, the Government additionally recalled the fact that the State had already provided the applicant with the requisite medical treatment and prosthesis, the cost of which care, totalled to some 28,000 Euros, had been fully funded by the State (see paragraphs 9 and 11 above).
23. The Government specified that the above-mentioned sum was meant to cover any and all pecuniary and non-pecuniary damages and costs and expenses. It would be converted into the national currency at the rate applicable on the date of payment, and would be free of any taxes that may be applicable and payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay these sums 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.
24. By a letter of 19 August 2014, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that the offered amount of the compensation was too low. He was also not satisfied with the fact of being entitled to prosthesis, as any other ordinary disabled person in the country, through the State social security program, fearing that the equipment offered through that program would most likely be of mediocre quality, whilst it was vital for him to obtain renewal of exactly the same type of prosthesis which had been procured for him by the State in 2004 – the equipment of the highest available on the market quality manufactured by the German medical group Ottobock (see paragraph 9 above). To substantiate his request for a preferential treatment in that respect, the applicant stated that the Government should not forget that it was the State’s wrongful action which had been at the cause of his disability. Lastly, the applicant submitted a set of financial documents (contract and invoices) showing that he had actually incurred GBP 820 (some 1,100 Euros) on the legal service provided by his British lawyer in the proceedings before the Court.
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 of cases:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
26. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Taktakishvili v. Georgia (dec.), no. 46055/06, 16 October 2012).
27. To this end, the Court has examined the declaration 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 issues) [GC], no. 26307/95, §§ 75‑77, ECHR 2003‑VI; WAZA Spółka 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 considers, in line with the Government’s argument, that, when assessing the adequacy of the terms set out in the Government’s unilateral declaration, it should not be omitted that, in the immediate aftermath of the life-threatening incident of 21 August 2004, the State had covered all the costs of the medical treatment dispensed to the applicant, including providing him with the requisite prosthetic gear, which had overall totalled to some 28,000 euros (see paragraphs 9 and 11 above). In the unilateral declaration at stake, the Government further offer to pay to the applicant monetary compensation, the amount of which is, in the Court’s view, adequate in the light of the particular circumstances of the case. They also acknowledge the applicant’s standing to claim renewal of the prosthesis at the State’s cost again, through the relevant social security agency. Lastly, the declaration contains a clear and unequivocal acknowledgement of a violation of Article 2 of the Convention by the Government on account of the State’s failure to undertake adequate measures aimed at the protection of the applicant’s right to life from the threat of landmine explosion. In this regard, it should be noted that the scope of the State’s positive obligations under the Convention when it comes to conducting demining operations in post-conflict zones is far from being unfamiliar to the Court (see, for instance, Paşa and Erkan Erol v. Turkey, no. 51358/99, §§ 28‑38, 12 December 2006; and, mutatis mutandis, Dönmez v. Turkey (dec.), no. 66898/01, §§ 19-39 17 June 2014).
29. The Court reiterates that the significance of the explicit acknowledgement of a breach of the applicant’s right to life under Article 2 of the Convention should not be underestimated as, when endorsed by the Court’s decision, it would automatically open to the applicant the possibility to request re-opening of the relevant domestic proceedings under Article 423 § 1 (g) of the Code of Civil Procedure (see paragraphs 14‑16 above and compare with Okroshidzeebi v. Georgia (dec.), no. 60596/09, §§ 1‑18, 11 December 2012; Parghalava v. Georgia (dec.), no. 3980/06, 4 March 2014; Tchikashvili and Others v. Georgia (dec.), no. 61783/11, § 15, 30 June 2015; see also, mutatis mutandis, Taktakishvili v. Georgia (dec.), no. 46055/06, §§ 13-28, 16 October 2012, and Molashvili v. Georgia (dec.), no. 39726/04, §§ 33 and 34, 30 September 2014).
30. Having regard to the nature of the admissions contained in the Government’s declaration, the consequent possibility for the applicant to request the reopening of the relevant domestic proceedings, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
31. Moreover, in the light of the above considerations, and in particular given the existence of the clear case-law on the matter (see paragraph 28 above, in fine), 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 application (Article 37 § 1 in fine).
32. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application 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 case out of the list in so far as it relates to the above complaint.
B. As regards the remainder of the application
34. Relying on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 the applicant also complained about the length and the outcome of the domestic civil proceedings.
35. However, having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.
36. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Costs and Expenses
37. The Court has the discretion to award legal costs when it strikes out an application (Rule 43 § 4 of the Rules of Court). The general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see, among others, Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002, and Ertürk v. Turkey (dec.) no.49683/99, 4 May 2006). In other words, an award can be made to an applicant in respect of costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II, and Donadze v. Georgia, no. 74644/01, § 48, 7 March 2006).
38. In the present case, having regard to the amount of work carried out by the applicant’s lawyer, to the information concerning the actual costs in its possession (see also paragraph 24 above) and to the criteria set out above, the Court considers it reasonable to award the applicant’s additional claim in full, that is the sum of 1,100 euros, in respect of legal costs and expenses, plus any tax that may be chargeable to the applicants. This amount is to be converted into the national currency at the rate applicable on the date of payment.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 2 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike a part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,100 (one thousand one hundred) plus any tax that may be chargeable in respect of costs and expenses to him, to be converted into the national currency at the rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 17 December 2015.
Fatoş AracıKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy