FOURTH SECTION
DECISION
Application no. 9593/09
Albert NURBEGIAN
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 7 February 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 24 December 2008,
Having regard to the declaration submitted by the respondent Government on 11 May 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, Mr Albert Nurbegian, is a Georgian national, who was born in 1944 and lives in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr Beka Dzamashvili, of the Ministry of Justice.
3. By a final and enforceable judgment of 12 March 2004, the Krtsanisi‑Mtatsminda District Court ordered the Civil Aviation Department of the Ministry of Transport and Communications (“the CAD”), to pay the applicant a lump sum of 9,278 Georgian Laris ((GEL), approximately 3,600 Euros (EUR)) in non-pecuniary damage for a work-related injury. In addition, the court ruled that the debtor agency were to pay him a disability allowance of GEL 662 (approximately EUR 263) per month.
4. The applicant had been receiving the monthly allowance from the debtor until 1 October 2006, the date when the CAD was irrevocably liquidated. As to the lump sum award, despite numerous complaints filed by the applicant with the enforcement authority, it was not paid to the applicant for several years (see paragraph 9 below).
5. In October 2007, the applicant requested a domestic court to clarify whether there existed a legal successor to the liquidated agency. By a decision of 20 October 2007, the Tbilisi City Court ruled that, in the light of the relevant primary and secondary pieces of legislation, the Ministry of Economic Development (“the Ministry”) could be considered as the legal successor to the CAD but only for a provisional period of eleven months, which started to run from the date of the liquidation until 1 September 2007. The City Court amended the initial judgment of 12 March 2004 by indicating that the new debtor was the Ministry and that the disability allowance arrears ought to be paid until 1 September 2007.
6. The decision of 20 October 2007 entered into force immediately and the relevant writ of execution, indicating the Ministry as the new debtor for the period between 1 October 2006 and 1 September 2007, was issued to the applicant on the same day.
7. The applicant complained before the Court that the debt under the judgment of 12 March 2004 had not been fully discharged in his favour. Notably, he claimed that the lump sum of EUR 3,600 had never been paid to him, whilst the payment of the monthly allowance of EUR 263, which was a continuous obligation, should have been maintained by the State after the liquidation of the CAD on 1 October 2006 to date. He relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
8. On 7 December 2015 notice of the application was given to the Government.
THE LAW
9. After the communication of the application, the Government supplemented the case file with new documents from which it appeared that the lump sum of EUR 3,600, which represented part of the judgment debt, had been fully paid to the applicant on 28 May 2009.
10. As to the disability allowance of EUR 263, the Government submitted that the obligation imposed upon the CAD to pay that sum on a monthly basis could not validly extend beyond 1 September 2007, since there existed no legal successor to the respondent agency after that critical date. On the other hand, the Government acknowledged that the Ministry owed the applicant the arrears for the monthly allowances which had not been paid between 1 October 2006 and 1 September 2007, as the Ministry had clearly acted as the legal successor to the liquidated agency during the eleven months in question (see paragraph 5 above).
11. The Government also referred to Decree no. 45 issued by them on 1 March 2013. According to that legal act, former employees of a number of State-owned companies and agencies, including the CAD, who had lost their various disability entitlements due to the liquidation of their former employers, were entitled to request a State disability pension by filing requests with the Social Security Agency. Noting that the applicant had never resorted to that remedy under Decree no. 45, the Government invited him to do so.
12. In the light of the above-mentioned additional information, the Government first attempted to reach a friendly settlement with the applicant. However, those attempts failed and by a letter of 11 May 2016 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application – the settlement of the judgment debt which accumulated prior to 1 September 2007. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
13. Notably, after having acknowledged that the final judgment of 12 March 2004 remained unenforced for a significant period of time in breach of the applicant’s relevant rights under the Convention, the Government undertook to pay him EUR 11,900 (eleven thousand nine 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 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 Convention. 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.
14. By letters of 15 June and 12 September 2016, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. He explained that he expected the Government to assume responsibility for the payment of the monthly disability allowance even after the respondent CAD had been liquidated as a legal entity.
A. As to whether the judgment of 12 March 2004 remains to be enforceable to date
15. At the outset, the Court observes that part of the applicant’s complaints is based on his assumption that the judgment of 12 March 2004, in so far as it ordered the CAD to effectuate regular payments in his favour, remains binding and enforceable to date.
16. However, the Court recalls that non-enforcement of a final judgment does not always create a continuous situation. On the contrary, there can be a number of scenarios when the judgment in question may cease to be enforceable by a specific date, which fact would then trigger the running of the six-month period. Thus, for instance, an application may be rejected as belated if it was introduced more than six months after the debtor State‑owned entities had been liquidated through insolvency proceedings and could thus no longer be held responsible for the non-enforcement of final judgments given in the applicants’ favour (see, amongst many others, Sokolov and Others v. Serbia (dec.), no. 30859/10, §§ 33-35, 14 January 2014; Bichenok v. Russia (dec.), no. 13731/08, §§ 23 and 25, 31 March 2015, and Babich and Azhogin v. Russia (dec.), nos. 9457/09 and 9531/09, § 45, 15 October 2013). An application can also be rejected as out of time where the applicant lodged it more than six months after he or she had learned, or ought to have learned, that the judgment in question had no longer been enforceable due to changes in the relevant legislative framework (see Babich and Azhogin, the decision cited above, §§ 50-58). Indeed, it is conceivable for a final and enforceable judgment to lose its legal force either as a result of changes in the domestic law (see Bulgakova v. Russia, no. 69524/01, § 41, 18 January 2007, and Khoniakina v. Georgia, no. 17767/08, §§ 74-75, 19 June 2012), or when the initial judgment has been set aside, amended or given a new interpretation by a fresh court decision (see Nikolay Zaytsev v. Russia, no. 3447/06, § 26, 18 February 2010, and Babich and Azhogin, decision cited above, §§ 52 and 23).
17. Returning to the circumstances of the present case, the Court observes that after the irrevocable liquidation on 1 October 2006 of the CAD, the agency which had been indicated as the debtor in the judgment of 12 March 2004, the applicant applied himself to the domestic court with the request to have a legal successor identified for the purposes of the continued payment of the monthly disability pension. It was in reply to his request that the Tbilisi City Court amended the judgment of 12 March 2004 by its fresh decision of 20 October 2007, clearly indicating that, according to the relevant primary and secondary legislation, the Ministry ought to be considered as the legal successor to the liquidated agency but only for the limited period of time until 1 October 2007 (see paragraph 5 above).
18. Consequently, it was by the delivery of the relevant court decision on 20 October 2007 at the very latest (see paragraph 6 above) that the applicant learned that it was no longer possible to enforce the initial judgment of 12 March 2004 in so far as it concerned the obligation to pay monthly disability allowances (compare with Sokolov and Others, decision cited above, §§ 34 and 35, and also Babich and Azhogin, cited above, § 53). If the applicant disagreed with the Tbilisi City Court’s interpretive stance and considered that his right to receive a disability allowance remained to be a life-long entitlement, he should have lodged his relevant complaints with the Court within six months after 20 October 2007. However, the present application was introduced as late as 24 December 2008.
19. It follows that part of the present application, in so far as it relates to the applicant’s assumption that the judgment of 12 March 2004 remains enforceable to date, has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
B. As to the existence of the judgment debt acknowledged by the Government
20. On the other hand, the Court observes that the Government have explicitly acknowledged that they owe the applicant a debt which was accumulated during the period when the judgment of 12 March 2004 was still valid and enforceable.
21. In this respect, 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”.
22. 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.
23. 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).
24. The Court has established its practice in a number of cases, including those brought against Georgia, 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).
25. Having regard to the nature of the admissions 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)).
26. 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).
27. 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).
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 6 § 1 and 13 of the Convention as well as under Article 1 of Protocol No. 1 to the Convention concerning the debt accumulated during the period when the judgment of 12 March 2004 was enforceable and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 2 March 2017.
Andrea TamiettiKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy