FIFTH SECTION
DECISION
Application no. 53191/10
Akaki PEIKRISHVILI and Givi BASILADZE
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 5 February 2019 as a Chamber composed of:
Angelika Nußberger, President,
Yonko Grozev,
André Potocki,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 3 September 2010,
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, Mr Akaki Peikrishvili (“the first applicant”) and Mr Givi Basiladze (“the second applicant”), are Georgian nationals who were born in 1953 and 1951 respectively and live in Tbilisi. They were represented before the Court by Mr I. Kandashvili, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr Beka Dzamashvili, of the Ministry of Justice.
3. The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the domestic authorities had refused to enforce a binding judicial decision in their favour.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 23 September 2003 the first applicant instituted proceedings at the Krtsanisi-Mtatsminda Regional Court against the second applicant and other respondents – the Krtsanisi-Mtatsminda Local Government, the Tbilisi Land Management Department, and private individuals I.P. and D.S. The applicants had been members of the “Betlemi 91” partnership (ინდივიდუალურ მენაშენეთა ამხანაგობა), which had been granted permission to construct residential apartments on plots of land located at nos. 2, 5 and 7 Betlemi Street.
6. In his application of 23 September 2003, the first applicant had asked for various agreements involving the respondents to be invalidated; the Tbilisi Land Management Department were asked to cancel property title to a plot of land located at 7 Betlemi Street (“plot no. 7”) held by the second applicant and D.S., and to register that plot of land together with a plot of land at 5 Betlemi Street (“plot no. 5”) as the property of the “Betlemi 91” partnership.
7. On 16 December 2003, before the first-instance court had commenced its examination of the merits of the case, the first applicant applied to that court, seeking to have the Krtsanisi-Mtatsminda local government entity and the Tbilisi Land Management Department removed from the list of respondents, without specifying the grounds for that request. Additionally, all the remaining parties to the dispute asked the court to terminate the judicial proceedings and approve a friendly settlement reached between them.
8. On 16 December 2003, relying on Articles 272 (d) and 273 of The Code of Civil Procedure (see paragraph 26 below), the Krtsanisi‑Mtatsminda Regional Court terminated the proceedings by approving, without examining the merits of the matter, the friendly settlement reached between the remaining parties (“the decision of 16 December 2003”). According to that agreement:
“1) The claimant, Akaki Peikrishvili, withdraws his application on the conditions set out in the friendly settlement;
2) The plots of land at 5 and 7 Betlemi Street shall be registered as the property of Akaki Peikrishvili and Givi Basiladze;
3) Akaki Peikrishvili shall be registered as the owner of the apartment located at 7 Betlemi Street and currently owned by D.S.;
4) Akaki Peikrishvili shall purchase for D.S. ... two ... apartments ...
The undersigned have read the agreement, agreed with it, and attest that it is correct...”
9. On 10 April 2007 an enforcement writ was issued by the first-instance court indicating the second applicant as the creditor and D.S.’s legal successor as the debtor. It indicated that the decision of 16 December 2003 had become final on 2 October 2006. It appears from the case files that the 16 December 2003 decision was enforced in respect of plot no. 7 and the apartment located thereon.
10. On 11 December 2007 the National Agency of Public Registry (“Public Registry”) registered, as part of unrelated proceedings, an allegedly different plot of land located at 11 Betlemi Street and measuring 208 square metres (“plot no. 11”) as the property of City Hall Urban Planning Service. On 3 April 2008 plot no. 11 was sold to a private individual, M.K., on the basis of a presidential decree (განკარგულება) authorising its privatisation.
11. On 17 April 2008 the Public Registry informed the second applicant that the plot no. 5 measured 308 square metres, and had dwellings located on it. It further noted that no property title was registered at the Public Registry in respect of the plot of land in question.
12. On 6 May 2008 the second applicant applied to the Public Registry for the property title to the no. 5 plot of land to be registered in accordance with the decision of 16 December 2003.
13. On 14 May 2008 the Public Registry asked for additional documentation, including a rectified version of the decision of 16 December 2003 which would specify the size of plots of land situated at 5 and 7 Betlemi Street, and the cadastral plan of the land in question.
14. On 16 May 2008 the applicants provided the Public Registry with the requested documentation, apart from the rectified version of the decision.
15. On 5 June 2008 the Public Registry responded to what appears to have been the second applicant’s query and noted that the no. 5 plot of land was first surveyed in 1941; the registry records did not contain a registered title to it.
16. On 16 June 2008 the Public Registry refused to register the no. 5 plot of land as the applicants’ property, on account of the latter’s failure to submit all the requested documents, and terminated the registration process.
17. On 17 June 2008 the Public Registry responded to the second applicant’s query that the borders of the plot of land in question as presented in the cadastral plan presented by him overlapped with the no. 11 plot of land (see paragraph 10 above).
18. On 27 August 2008 and 1 December 2008 the applicants instituted proceedings against the President of Georgia, the Tbilisi City Hall, the Public Registry, and a private individual, M.K (see paragraph 10 above), involving the Tbilisi Architecture Service as a third party. They requested that the decision of 16 June 2008 to terminate the registration process and the decision of 11 December 2007 registering the plot of land no. 11 in City Hall ownership be overturned and the plot no. 5 registered as their property. They claimed that the plot no. 11 had been erroneously registered as no. 11 and that in fact this was plot no. 5, to which they had had a valid legal claim. They further challenged the City Hall’s right to have registered a plot of land as its own property. Accordingly, the contract of sale concluded between the City Hall and M.K. was, in their submission, null and void. They submitted that the legal basis for their property title in respect of plot no. 5 was the 16 December 2003 decision approving the friendly settlement between them, and that its non-enforcement, including by requesting that a rectified version of the decision be obtained by the applicants, had amounted to a violation of the principle of finality of judgments, in breach of Article 6 of the European Convention.
19. On 18 June 2009, at the trial before the first-instance court, one of the respondents inquired as to whether the applicants had held a valid title to plot no. 5 prior to reaching the friendly settlement of 16 December 2003. The applicants’ representative mentioned being told by the applicants about the existence of another court decision, but noted that in any event the question concerning the applicants’ title pre-existing the friendly settlement was irrelevant, as the 16 December 2003 decision and the writ of execution were sufficient to establish the applicants’ title to the plot no. 5.
20. On 19 June 2009 the Tbilisi City Court ruled against the applicants. It noted that according to the law, all non-agricultural land located in Tbilisi, except that registered as private property, was the property of the State. Therefore, the Public Registry had rightly registered plot no. 11 as City Hall property. Accordingly, the subsequent selling of that property to a private individual had been carried out in accordance with the law. As regards the applicants’ argument regarding the non-enforcement of a final decision in their favour, the first-instance court found the request of the Public Registry that the applicants present a rectified version of the court decision was in accordance with the domestic legislation, as that decision had not been precise as to the exact size of the plot no. 5. The court further noted that the applicants had failed to present to the registration authority a document confirming their title to the plot of land in question. While the applicants had presented the 16 December 2003 decision and the writ of execution related to it, those documents did not specify either whose property the plot had been or its exact size. Furthermore, the agreement underlying that decision had been concluded between private parties, and in the absence of an administrative authority as a party in the dispute there was a clear implication that one of the private parties, namely D.S., would possess property rights over the plot in question; this he did not have.
21. On 14 July 2009 the applicants appealed. They disagreed with the application of the law to the facts by the first-instance court and reiterated their arguments (see paragraph 18 above). They noted in particular that the request to present a rectified version of the decision in order to have the 16 December 2003 decision enforced in their favour had in effect amounted to a refusal to enforce a legally binding court decision, in violation of the law.
22. On 15 December 2009, during the trial before the appellate court, the representative of the Public Registry noted that, unlike plot no. 7, plot no. 5 had never been registered as private property, and requested that the findings of the lower court be upheld by the appellate court.
23. On 15 December 2009 the Tbilisi Court of Appeal upheld the lower court’s judgment in a reasoned decision. It found that plot no. 11 had been the property of the self-government authority, the overlap between the two plots had not been established, and that the request of the Public Registry that the applicants present additional documentation for the purposes of enforcing the decision of 16 December 2003 had been lawful. As regards the applicants’ argument that the refusal to have the no. 5 plot of land registered as their property had amounted to non-enforcement of a final judicial decision in their favour, in breach of the principle of finality of court judgments and decisions, and Article 6 of the European Convention on Human Rights, the appellate court stated the following:
“The appellate court notes that the applicants refer to the decision of the Tbilisi Krtsanisi-Mtatsminda Regional Court of 16 December 2003 ... as the factual basis for granting their application, and they consider that the refusal to have the property right registered [by the relevant authority] constitutes a refusal to enforce [the final decision in their favour].
The appellate court notes the fact that according to the 16 December 2003 decision ... and the writ of execution, the following persons were parties to those proceedings at the time: the claimant, Akaki Peikrishvili, [and] the respondents Givi Basiladze, [and] D. S. According to the descriptive part of the decision, the [local government entity] and the land management department had been removed from the list of respondents. Accordingly, the decision in question terminated the proceedings and approved a friendly settlement ... between the parties (private individuals, claimant Akaki Peikrishvili and respondents Givi Basiladze [and] D.S.). According to the writ of execution, the creditor in the present case was a private individual, namely respondent Givi Basiladze, and the debtor was a legal successor of a private individual, respondent D.S. Additionally, while the writ of execution does not explicitly indicate it, the claimant Akaki Peikrishvili is also a creditor.
The appellate court notes that the case files do not indicate, and the appellants have not presented any proof ... that the immovable property (plot of land) located in Tbilisi at 5 Betlemi Street, which, according to the agreement between the parties (private individuals: claimant Akaki Peikrishvili, and respondents Givi Basiladze, [and] D.S.) should have been registered as the property of private individuals Akaki Peikrishvili and Givi Basiladze, had been, in accordance with the procedure prescribed by law, the property of [either of the parties]. It is important to note that at the time the 16 December 2003 decision was adopted, no property title had been registered [in the public registry] in respect of the immovable property (plot of land) located in Tbilisi at 5 Betlemi Street.
In the opinion of the appellate court, considering that the immovable property (plot of land) located in Tbilisi at 5 Betlemi Street had not constituted, in accordance with the procedure prescribed by law, the property of the private individuals, claimant Akaki Peikrishvili (creditor), and/or respondent Givi Basiladze (creditor), and/or respondent D.S. (debtor), accordingly they had not been entitled, at the time, to have disposed of what had not been their property, even in the situation where there was a friendly settlement approved by a court, given that a final decision of a court does not absolve the parties from complying with the rules prescribed by law and in force at the material time. Therefore, the immovable property (plot of land), to which the debtor does not have a property title cannot be registered as the property of the creditors despite the friendly settlement reached by the parties (creditor and debtor) regarding that property.
Consequently, the appellate court cannot share the claimants’ position regarding the matter, as it is manifestly ill-founded; the court considers that the creditors’ request, which is based on a final court decision, can be satisfied and therefore enforcement ensured only in respect of property to which a debtor possesses a property title in accordance with the procedure prescribed by law...
The appellate court ... considers that the [creditors’] request to have the plot of land registered as their property on the basis of the decision of 16 December 2003 ... is devoid of factual and legal grounds. In the opinion of the court, the existence of a final judicial decision does not of itself rule out a violation of the legislation which regulates legal relations connected with immovable property.”
24. On 21 April 2010 the Supreme Court rejected as inadmissible an appeal on points of law lodged by the applicants.
B. Relevant domestic law
25. The Civil Code (1997), as it stood at the material time, provided as follows:
Article 54: Illegal and immoral agreements
“An agreement that violates rules and prohibitions provided in the law, contradicts the public order or moral norms is null and void.”
Article 115: Impermissibility of the abuse of rights
“A civil right shall be implemented in compliance with the law. It is impermissible to abuse a right to inflict damage upon another person.”
Article 170 § 1 (Notion [of the right to property])
“An owner may, within the confines of the law or contractual restraints, freely possess and use the property (thing), exclude others from using this property, [and] dispose of it, unless doing so would violate the rights of neighbours or other third persons or it would constitute an abuse of rights.”
Article 183: Grounds for Acquiring Ownership over Immovable Property
“1. Acquisition of immovable property shall require a notarised document and the acquirer’s registration in the Public Registry...
2. The document shall specify the grounds for acquiring the immovable property. If one of the parties participates through a representative, it shall be so specified in the document.”
26. Under Articles 272 (d) and 273 of the Code of Civil Procedure (1997), as it stood at the material time, domestic courts would adopt a decision terminating the proceedings without deciding the matter on the merits if the parties to a dispute reached a friendly settlement. That procedure, as it stood at the material time, did not envisage either a court’s discretion to inquire into the legal grounds of a friendly settlement agreement, or an obligation of the settling parties to provide information regarding the legal status of the object of the dispute. This latter obligation was added to the Code by means of legislative amendments dated 17 June 2016.
COMPLAINTS
27. The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the domestic authorities had refused to enforce a binding judicial decision in their favour.
THE LAW
28. The applicants complained that the domestic authorities’ failure to enforce the binding judicial decision of 16 December 2003 approving a friendly settlement between them had amounted to a violation of their rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The relevant parts of these articles 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 1 of Protocol No. 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.”
29. The Government submitted that the matter had been duly addressed in the judicial proceedings instituted by the applicants. In particular, the domestic courts had reasoned that judicial approval of a friendly settlement between private parties concerning a reallocation of property rights, even if final, could not have created an enforceable claim to such property in the absence of a prior valid property title. Therefore, the decision had been contingent upon the applicants’ holding of such title, in the absence of which the decision was unenforceable.
30. The applicants reiterated their original arguments, namely that the domestic authorities’ failure to enforce the binding judicial decision of 16 December 2003 approving a friendly settlement between them had amounted to a violation of their rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
31. The Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, the relevant part of which declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII, and Hadzhigeorgievi v. Bulgaria, no. 41064/05, § 66, 16 July 2013).
32. Legal certainty presupposes respect for the principle of res judicata (see Brumărescu, cited above, § 62), that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out fresh examinations. Review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003‑IX; Hadzhigeorgievi, cited above, § 66; and Trapeznikov and Others v. Russia, nos. 5623/09 and 3 others, § 23, 5 April 2016).
33. Turning to the circumstances of the present case, the Court notes at the outset that normally the imposition upon an applicant of an obligation to produce a rectified version of a decision or judgment in addition to an enforceable decision in his or her favour, especially when information such as, for instance, the size of a plot of land is at the disposal of the relevant public authority, will unduly hamper the enforcement of a final judicial decision or judgment (see Dadiani and Machabeli v. Georgia, no. 8252/08, §§ 47-50, 12 June 2012, with further references). However, in the particular circumstances of the present case, the domestic courts have found, in effect, that the decision of 16 December 2003 was a priori unenforceable in respect of plot no. 5. Therefore, the Court will address the matter from that perspective.
34. While the domestic litigation instituted by the applicants to have the 16 December 2003 decision enforced in their favour concerned several issues, such as the exact borders of plot no. 5 and whether it did in fact overlap with plot no. 11, the Court need not address them. In particular, the main issue that emerged in that litigation concerned the question of whether the final decision, as far as plot no. 5 was concerned, had at all been enforceable. In this connection, and in the light of its case-law on the matter (see paragraphs 31-32 above), the Court will assess whether the judicial proceedings instituted by the applicants with a view to ensuring the enforcement of the 16 December 2003 decision in their favour (see paragraphs 18-24 above) in fact amounted to a review of a final and binding decision, and whether such a review was made necessary by circumstances of a substantial and compelling character.
35. Against this background, the Court notes that the domestic courts addressed explicitly and at length the applicants’ argument under Article 6 § 1 of the Convention in respect of the non-enforcement of the 16 December 2003 decision as regards plot no. 5 (see paragraphs 20 and 23-24 above). They reasoned that the decision of 16 December 2003 had merely approved a friendly settlement agreement concluded among private parties who had been presumed to have possessed valid titles to the property which they had agreed to distribute among themselves (see paragraph 23 above). In the absence of such a property title to plot no. 5 the private individuals could not have agreed simply to dispose of the property among themselves, and the applicants could not have expected to have the decision enforced in respect of a property which was not owned by the debtor indicated in the enforcement writ (see ibid).
36. The Court accepts the domestic courts’ reasoning. In particular, the decision of 16 December 2003 and the resulting award was not reached as a result of the Krtsanisi-Mtatsminda Regional Court’s deliberations on the merits (see paragraphs 8 and 26 above, and contrast, for instance, Vardanyan and Nanushyan v. Armenia, no. 8001/07, § 68, 27 October 2016). It was rather a decision terminating proceedings based on a friendly settlement agreement concluded among the private parties to the dispute (see paragraphs 7-8 above). Those parties – the applicants before the Court and a certain D.S. – reached the settlement exclusively amongst themselves regarding, among others, the reallocation of their property titles concerning two plots of land, which had been endorsed by the impugned decision (see paragraph 8 above). The domestic legislation as it stood at the material time did not envisage judicial involvement in the verification of the legal grounds underlying such agreements (see paragraph 26 above) and it appears to have been the responsibility of the parties to ensure that their settlement had a basis in law. Furthermore, the contingency of the friendly settlement upon the parties’ titles to the property in question appears to have been implied in the terms of the friendly settlement agreement on the basis of which the applicants and D.S. would reallocate the property in question (see paragraph 8 above). This is confirmed by the case files, which demonstrate that the enforcement of the 16 December 2003 decision in respect of plot no. 7 did not create any issues apparently in view of a valid title to that property predating the decision in question (see paragraphs 6, 9, and 22 above). No such title appears to have been held by any of the parties in respect of plot no. 5 prior to the conclusion of the friendly settlement agreement (see paragraphs 11, 15, 19, and 22 above).
37. Therefore, the proceedings instituted by the applicants resulted in a review of a final judicial decision, and revealed, in so far as plot no. 5 was concerned, that the applicants’ friendly settlement agreement constituting the sole grounds for that decision had been concluded in respect of a non‑existent property title, in violation of the relevant domestic law (see paragraph 23 above). Taking into account the provisions of the domestic law regarding the acquisition of a property title, the nullity of agreements concluded in violation of the law, the prohibition of the abuse of rights (see paragraph 25 above), and the reasoning of the domestic courts concerning the applicants’ complaint (see paragraph 35 above), the Court considers, in the specific circumstances of the present case, that the review and the resulting non‑enforcement of the 16 December 2003 decision was rendered necessary by circumstances of a substantial and compelling character (compare and contrast, Hadzhigeorgievi, cited above, §§ 68-70).
38. In the light of the foregoing, there is no appearance of a violation of Article 6 § 1 of the Convention. The applicants’ complaint is therefore manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
39. Furthermore, under such circumstances, the applicants cannot claim to have a “possession” within the meaning of Article 1 of Protocol No. 1 in respect of plot no. 5. It does not appear that the applicants had ever had a valid property title to the property in question prior to the decision of 16 December 2003 (see paragraphs 35-37 above). Nor would the latter decision, in and of itself, have conferred upon them a legitimate expectation of acquiring ownership over plot no. 5. In particular, in so far as the friendly settlement agreement concerned the reallocation of property rights over the plot in question, the applicants and D.S. must have been well aware, while reaching the agreement, that none of them had had a valid title to the plot enabling them to dispose of it in the first place. Their complaint under Article 1 of Protocol No. 1 is therefore incompatible rationae materiae with the Convention and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 28 February 2019.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
Full & Egal Universal Law Academy