FIFTH SECTION
DECISION
Application no. 17959/11
LTD SONY TSENTRI TBILISI and LTD LAZERI-2 TBILISSI
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 13 October 2020 as a Committee composed of:
Ganna Yudkivska, President,
Stéphanie Mourou-Vikström,
Lado Chanturia, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 15 March 2011,
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. The applicants, Ltd Sony Tsentri Tbilisi and Ltd Lazeri-2 Tbilisi, are limited liability companies registered in Georgia. They were represented before the Court by Mr G. Sadzaglishvili, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 1 January 2006, the applicant companies signed a nine-year lease agreement with M.K., according to which they leased approximately 250 m2 of non-residential commercial area on 30 Rustaveli Avenue in Tbilisi. On 22 November 2006 they were informed by M.K. that she had transferred the title over the property concerned to the Ministry for Economic Development. In the same letter the applicant companies were informed that they would continue their legal relationship with the new owner in accordance with the relevant national legislation. Eight and a half months later, on 7 August 2007, at 8.00 a.m. approximately 200 police officers forced their way into the applicants’ leased property. They seized the area as a result of which the operation of both businesses was stopped. On 14 August 2007 the applicant companies received letters from a deputy Minister of the Ministry for Economic Development by which they were informed that their lease contracts had been terminated as of 1 July 2007.
5. The applicants complained with the Tbilisi City Court requesting the reinstatement of the lease and compensation for the losses incurred as a result of the early termination of the lease contracts and the eviction. On 8 June 2009 the Tbilisi City Court rejected the applicant companies’ application in its entirety. The first instance court found, inter alia, that there had been no lease agreements in force at the material time between the parties concerned. The above decision was upheld on appeal by the Tbilisi City Court of Appeal and the Supreme Court of Georgia on 4 February and 10 October 2010 respectively.
COMPLAINTS
6. The applicant companies complained under Article 1 of Protocol No. 1 about the unlawful interference with their property rights. They also alleged in this connection a breach of Article 13 of the Convention.
THE LAW
7. The Government raised several preliminary objections of inadmissibility, arguing in the first place that the present application had to be dismissed as an abuse of the right of application because the applicant companies had knowingly failed to provide all the facts relevant for the examination of the case. In particular, the Government submitted to the Court a settlement agreement dated 24 May 2012 and signed by the then first deputy Minister of Justice and the director of the applicant companies (“the settlement agreement”). According to the settlement agreement, the parties agreed to settle all legal disputes related to the events that had developed in connection to the commercial area leased by the applicant companies in 2006. As a part of this agreement, the applicant companies undertook an obligation to inter alia withdraw their applications pending before the Court. In return, according to clause no. 1, the Government of Georgia were to pay the applicant companies the sum of 500,000 United States dollars (USD). The respective payment was effected on 11 July 2012.
8. In view of the above mentioned the Government submitted that the dispute at stake in the current case had been settled between the parties and the applicant companies had been expected to withdraw their applications. Instead, however, they did not fulfil their undertaking. Most importantly, they failed to inform the Court about those developments, failure which clearly amounted to an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention.
9. In reply, the applicant companies claimed that the Government had failed to fulfil a certain part of its commitments under the settlement agreement, therefore, according to them, the matter had not been resolved. They neither commented nor tried to explain the reasons behind their failure to inform the Court about the new developments in their case. Also, they did not claim that the settlement had been imposed on them.
10. The Court notes that incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see, for example, Hadrabova v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, 30 September 2014, with further references therein; see also Bekauri v. Georgia (dec.), no. 14102/02, §§ 21‑25, 10 April 2012).).
11. Turning to the circumstances of the present case, the Court notes that the applicant companies did not challenge the fact that the settlement agreement concerned the very same factual circumstances that had laid the basis for their application with the Court. Under the relevant clause of that settlement agreement, the applicant companies explicitly undertook an obligation to withdraw their applications, while the Government of Georgia undertook an obligation to pay the applicants USD 500,000. Without further addressing the legal nuances of the settlement agreement, the Court cannot but conclude that the settlement agreement was a major development in the applicant companies’ case; it concerned the very core of the application pending before the Court, without the knowledge of which it could not have been in a position to properly consider the case (compare with Ronly Holdings Ltd v. Georgia, no. 41444/05, § 19, 7 November 2017).
12. As to the second aspect of possible abuse, the Court notes that the applicant companies failed to provide any explanation for their failure to divulge the settlement agreement to the Court. They had seven years and four months for that purpose, as the settlement agreement had been signed on 24 May 2012, while the case was only communicated to the parties on 2 October 2019. Within that period of time the applicant companies were required to update the Court, according to Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, about any major developments regarding their case, including the signing of the impugned agreement. Even after the communication of the case, on 10 January 2020, the applicant companies submitted their proposal for a friendly settlement of the case to the Court without mentioning the friendly settlement agreement reached at domestic level.
13. In view of all the above mentioned, and particularly having regard to the importance of that information for the proper determination of the present case, the Court finds that the either deliberate or negligent conduct of the applicant companies was contrary to the purpose of their right of individual petition as provided for in Article 34 of the Convention (see Bekauri and Ronly Holdings Ltd, both cited above, §§ 22-25 and § 21, respectively). The application must accordingly be rejected as abusive, 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 12 November 2020.
Anne-Marie DouginGanna Yudkivska
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy