FOURTH SECTION
DECISION
Application no. 17847/10
Adel JAVAKHADZE
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 24 January 2017 as a Committee composed of:
Krzysztof Wojtyczek, President,
Nona Tsotsoria,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 26 March 2010,
Having regard to the declaration submitted by the respondent Government on 26 September 2016 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, Ms Adel Javakhadze, is a Georgian national, who was born in 1942 and lives in Kutaisi. She was represented before the Court by Mr G. Chkheidze, a lawyer practising in Kutaisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr Beka Dzamashvili, of the Ministry of Justice.
3. By a decision of 19 September 2008, a State commission dealing with privatisation of State property (“the privatisation commission”) rejected the applicant’s request for privatisation of two plots of land which had arguably been in her de facto possession for a significant period of time.
4. The applicant appealed to a court. In a judgment of 21 May 2009, the Kutaisi Court of Appeals annulled the decision of 19 September 2008 for having been issued in breach of certain procedural rules and ordered the privatisation commission to re-examine the applicant’s request by delivering a fresh decision on the matter.
5. The judgment of 21 May 2009 became final, and on 17 August 2009 a writ of execution was issued. However, despite the applicant’s numerous complaints filed with various authorities, the final judgment remained unenforced.
6. On 2 March 2016 notice of the application was given to the Government under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
THE LAW
7. After the failure of attempts to reach a friendly settlement, by a letter of 26 September 2016 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
8. Notably, after having acknowledged that the final judgment of 21 May 2009 delivered by the Kutaisi Court of Appeals remained unenforced in breach of the applicant’s relevant rights under the Convention, the Government proposed to undertake the following obligations:
“The Government, in the light of the particular circumstances of the present case, undertake
– to issue, after a thorough re-examination of the applicant’s request for privatisation, a new decision on the matter, as was ordered in the final judgment of 21 May 2009;
– to pay the applicant 3,500 (three thousand and five hundred) euros to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.
The latter sum will be converted into the national currency of the respondent State at the rate applicable at the date of payment, and will be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.”
9. By a letter of 17 October 2016, the applicant indicated that she was not satisfied with the terms of the unilateral declaration on the ground of the insufficiency of the monetary award offered by the Government.
10. 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”.
11. The Court 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.
12. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also 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).
13. The Court has established in a number of cases, including those brought against Georgia, its practice concerning complaints about the violation of one’s right to have a final court decision enforced (see, amongst many others, Burdov v. Russia, no. 59498/00, §§ 33-42, ECHR 2002‑III, and Amat-G Ltd and Mebaghishvili v. Georgia, no. 2507/03, §§ 45‑63, ECHR 2005‑VIII).
14. Having regard to the nature of the admissions and the specific undertakings contained in the Government’s declaration, 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 application (Article 37 § 1 (c)).
15. Moreover, 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 application (Article 37 § 1 in fine).
16. 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 (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
17. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention as well as under Article 1 of Protocol No. 1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 16 February 2017.
Andrea TamiettiKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy