SECOND SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 44328/05
by Davit PIRTSKHALAISHVILI
against Georgia
The European Court of Human Rights (Second Section), sitting on 29 April 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Sally Dollé , Section Registrar,
Having regard to the above application lodged on 11 April 2005,
Having regard to the parties' observations,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr David Pirtskhalaishvili, was a Georgian national who was born in 1938. He died on 16 July 2006, pending the proceedings before the Court, and his daughter, Mrs Nino Pirtskhalaishvili, a Georgian national who was born in 1963, expressed her wish to pursue the proceedings. The applicant was represented by Mr N. Legashvili, Ms K. Mekhuzla and Ms M. Japaridze, lawyers practising in Tbilisi. The Government were represented by their former Agent, Mr David Tomadze of the Ministry of Justice.
A. As the case stood prior to its communication
By virtue of a binding and enforceable judgment of the Rustavi City Court dated 20 June 1997, a State-owned enterprise (“the company”) was ordered to compensate the applicant, its former employee, for an industrial accident. The judgment debt consisted of a lump sum of 2,247 Georgian laris (960 euros[1]) and a monthly allowance of GEL 86.40 (EUR 38).
Relying on Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the inability to retrieve the judgment debt. He submitted that the reasons for the continued non-enforcement had been repeated misplacements of the relevant writ of execution by the enforcement authority, as well as the initiation of bankruptcy proceedings against the company on 15 August 2002.
B. Additional circumstances of the case, as disclosed by the parties' observations
On 30 April 2007 notice of the application was given to the Government.
In their observations of 6 October 2007, the Government submitted documentation which showed that the applicant had been receiving his monthly allowance both prior to the institution of the bankruptcy proceedings and thereafter. Notably, according to a letter of the company's trustee in bankruptcy dated 21 July 2007, during the period between January 1997 and September 2002 the applicant had been paid, either in cash or by bank transfer, some GEL 3,766 (EUR 1,608). Subsequently, pending the bankruptcy proceedings and until his death, the applicant had received some GEL 4,128 (EUR 1,762). In addition, the Government submitted proof of the fact that, in June 1999, a bailiff had put up for public auction the company's movables, as a result of which enforcement measure the applicant was paid GEL 1,500 (EUR 640). According to the case file, the latter amount was supposed to make up for the court allotted lump sum.
THE LAW
The Government submitted that the application was abusive, in so far as the applicant had concealed from the Court the information concerning the received payments.
Acknowledging that their initial submissions had been incomplete, the applicant's representatives stated that it had not been a wilful attempt to mislead the Court. The omission was rather conditioned by the fact that, due to his health problems and advanced age, the applicant had not been able to communicate to the representatives all the details of his case in due time. Furthermore, the representatives claimed that the effectuated payments did not fully make up for the judgment debt and that, in any event, the essence of their complaint was the suspension of the enforcement proceedings by virtue of the initiation of the bankruptcy proceedings against the company.
The Government commented that the applicant's health problems were not a justifiable excuse for having selectively communicated to the Court, through his representatives, details of the enforcement proceedings at stake.
The Court reiterates 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 Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; Hadrabova v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007).
In the line with the Government's argument, the Court does not consider that the applicant's health problems were a valid excuse for the failure to inform the Court, in his initial submissions, of the significant partial payments received under the judgment of 20 June 1997. Having regard to the importance of that information for the proper determination of the present case, the Court finds that the conduct of the applicant, who was represented by three qualified lawyers, was contrary to the purpose of the right of individual petition as provided for in Article 34 of the Convention (see Khvichia and Others v. Georgia (dec.), no. 26446/06, 23 June 2009; Lozinschi v. Moldova (dec.), no. 33052/05, 4 November 2008; Dostál v. the Czech Republic (dec.), no. 19057/02, 23 October 2007).
The application must accordingly be rejected as abusive, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Sally DolléFrançoise Tulkens
RegistrarPresident
[1] Here and elsewhere, approximate conversions are given in accordance with the exchange rate of the Georgian lari to the euro on 8 March 2010.
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