FOURTH SECTION
DECISION
Application no. 33953/05
David KIKNADZE
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 11 October 2016 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 1 September 2005,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr David Kiknadze, is a Georgian national, who was born in 1979 and lives in Tbilisi. He was represented before the Court by Ms Ts. Javakhishvili and Mr I. Khatiashvili, lawyers practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr D. Tomadze, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The present application concerned a civil dispute over the ownership of an apartment between the applicant and another private person. The dispute had originated over the issue of which of the two private parties had had a better standing to privatise the apartment owned by the State. It involved complex points of fact and interpretation of the relevant legislation concerning the lawfulness of privatisation processes in the country after the break-up of the Soviet Union.
5. After a series of remittal of the case between various levels of jurisdiction, on 23 February 2005 the Supreme Court of Georgia, having conducted an adversarial oral hearing between the parties, delivered a final judgment dismissing the applicant’s claim as ill-founded. It ruled that the opposite party had been better placed to privatise from the State the apartment in question. A written copy of the final judgment was served on the applicant on 17 March 2005.
COMPLAINTS
6. Citing Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the outcome of the domestic proceedings.
THE LAW
7. The applicant called into question the outcome of the civil dispute, contesting the domestic courts’ findings of law. He cited Article 6 § 1 and Article 1 of Protocol No. 1, taken alone and in conjunction with Article 13. In their relevant parts, these 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 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1
“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
8. Amongst other arguments, the Government submitted, by reference to the relevant excerpts from the Land Registry, that the applicant had never possessed any valid title over the apartment in question. Consequently, it could not be said that the disputed apartment had ever represented his “possession” within the meaning of Article 1 f Protocol No. 1. By initiating the civil proceedings against the opposite party, the applicant merely wished to have his civil claim determined, which the domestic courts did, but to his detriment. Consequently, his application before the Court was nothing else but an attempt to contest the domestic courts’ ruling. The Government thus concluded that the application was manifestly ill-founded in its entirety.
9. In reply, the applicant continued calling into question the domestic courts’ alleged failure to apply correctly the legislation on privatisation to the facts of his case. He argued that he had been better placed to privatise the disputed apartment than the opposite party.
B. The Court’s assessment
10. The Court observes that the subject matter of the present application is the question of whether or not the applicant had had a better claim to acquire ownership of the State-owned apartment through a privatisation procedure. However, the same question, which was at the origin of his civil dispute, had been duly examined by the domestic courts in the course of the adversarial proceedings. The applicant had had ample opportunity to present his arguments concerning the interpretation of the relevant domestic law and the assessment of the factual circumstances before all levels of jurisdiction. The domestic courts, including the Supreme Court, after having heard these arguments, finally ruled that the applicant’s claim was ill-founded.
11. The Court reiterates that it is not a domestic judicial instance of “fourth instance”. It cannot thus overrule the Supreme Court’s reading of the domestic law, contrary to what the applicant calls for under Article 6 § 1 of the Convention (see, amongst many others, FC Mretebi v. Georgia, no. 38736/04, § 31, 31 July 2007). In so far as the applicant invokes Article 1 of Protocol No. 1, the Court recalls that this provision cannot be interpreted so as to guarantee a right to acquire property (see, among many others, Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003). Consequently, the Court cannot be expected, under the latter provision, to grant the applicant a title to privatise the disputed apartment.
12. It follows that the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
13. In the light of the Court’s aforementioned conclusions as regards the manifestly ill-founded complaints (see the preceding paragraph), the Court concludes that the applicant cannot have an arguable claim for the purposes of Article 13 of the Convention either (see, mutatis mutandis, Walter v. Italy (dec.), no. 18059/06, 11 July 2006). It follows that his complaint under Article 13 of the Convention must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to 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 3 November 2016.
Andrea TamiettiKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy