SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 21519/05
by Rusudan SHAVISHVILI
against Georgia
The European Court of Human Rights (Second Section), sitting on 9 November 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos,
Guido Raimondi, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 21 April 2005,
Having regard to the Court’s decision to examine jointly the admissibility and merits of the case (Article 29 § 1 of the Convention),
Having regard to the parties’ observations,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Rusudan Shavishvili, is a Georgian national who was born in 1963 and lives in Tbilisi. The respondent Government were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In January 1994 the applicant and Mr Sh. started living together as husband and wife without formally registering their marriage. On 3 July 1995 a child was born to them.
On 30 May 1997 an incident of physical harassment of the applicant by Mr Sh. took place. On 8 July 1997, as soon as the applicant had reported about that incident, the Kaspi Regional Prosecutor opened a criminal case against Mr Sh. for battery of the applicant.
On 3 December 1998 the applicant brought an action requesting child support from Mr Sh., with whom she had terminated cohabitation by that time.
In a decision of 1 March 1999, the Gldani-Nadzaladevi District Court in Tbilisi allowed the applicant’s action. Mr Sh. was ordered to assist her in the raising of their daughter by paying 25% of his income monthly, which amount however should never be less than 50 Georgian laris (GEL, 23 euros (EUR)[1]). The payments were to take effect from 3 December 1998, the date of the introduction of the applicant’s action, until their child reached the age of majority (18 years). No subsequent appeal was lodged against that decision, and it became binding.
On 25 June 1999 the Enforcement Department of the Ministry of Justice reproached the competent bailiff of the Kaspi District for not having enforced the decision of 1 March 1999. The bailiff was instructed to recover GEL 350 (EUR 159) from the debtor in a lump sum as arrears for the past seven months of non-payment, and to ensure the continuous payment of the maintenance in future. The Enforcement Department further ordered that the debtor’s whereabouts be established and his assets frozen, to be sold by compulsory public auction, if necessary.
In July-August 1999 the bailiff itemised and froze Mr Sh.’s real and movable property. Some assets of minor value were later sold at public auction, as a result of which enforcement measure the applicant received GEL 90 (EUR 41).
On 21 August 2000 the Enforcement Department informed the applicant that Mr Sh. had managed to alienate some of the frozen assets, in respect of which fact the General Prosecutor’s Office later opened another criminal case.
On 11 December 2003 the Tbilisi Regional Court, overturning a lower instance verdict, found Mr Sh. guilty of infliction of less serious bodily injury to the applicant and the persistent non-payment of the court-awarded maintenance, offences under Articles 118 § 1 and 176 of the Criminal Code. He was sentenced to one year and six months’ conditional imprisonment for the first offence and fined GEL 200 (EUR 91) for the second.
In addition, the Regional Court examined the applicant’s civil claims. Thus, in the same judgment of 11 December 2003, it ordered Mr Sh. to pay her GEL 2,910 (EUR 1,323) in pecuniary damages, this amount corresponding to the arrears of maintenance for the past sixty months, and GEL 2,000 (EUR 909) in non-pecuniary damages for the distress caused by his wrongful actions.
In a decision of 4 March 2004, delivered in the applicant’s presence, the Supreme Court upheld the judgment of 11 December 2003.
On 23 April and December 2004 the Tbilisi Regional Court issued enforcement writs on the basis of the judgment of 11 December 2003, ordering Mr Sh. to pay the applicant GEL 4,910 (EUR 2,232) within six months. Supervision of the enforcement was entrusted to the Ministry of Justice.
On 17 August 2004 the Ministry of Justice, complaining to the Kaspi District Court that Mr Sh. had failed to discharge the judgment debt of 11 December 2003, requested that the probation be cancelled and that he be imprisoned. On 21 October 2004 the District Court dismissed that request.
B. Relevant domestic law
The relevant legal provisions concerning the possibility of suing the enforcement authority were cited in the case of Nazaretian v. Georgia ((dec.), no. 13909/06, 7 July 2009).
COMPLAINTS
The applicant complained under Articles 6 § 1 and 13 of the Convention about the enforcement authority’s inability to recover the maintenance arrears from Mr Sh., contrary to the binding court decisions of 1 March 1999 and 11 December 2003. Under Article 8 of the Convention, she also complained that the State had not sufficiently punished her former partner for battery.
THE LAW
1. As to the alleged inefficiency of the enforcement proceedings
The applicant complained about the inefficiency of the enforcement proceedings under Articles 6 § 1 and 13 of the Convention, which, in so far as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time 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.”
The Government submitted, amongst other arguments, that the applicant’s complaints should be rejected for her failure to exhaust domestic remedies. Notably, referring to the Court’s decision in the case of Nazaretian (the decision cited above), the Government reproached the applicant for not having lodged a civil claim with a court in order to challenge the enforcement authority’s inactivity and seek compensation for the consequent damage.
In reply, without commenting on the Government’s argument concerning the civil remedy, the applicant reiterated that the main reason for her lasting inability to receive the court-awarded maintenance was the inefficient conduct of the competent bailiff. Thus, she complained, inter alia, that her former partner had managed to alienate the frozen assets, which then became the major obstacle in the retrieval of the maintenance, due to the bailiff’s negligence. She also accused the enforcement authority of an erroneous assessment of her partner’s financial situation, claiming that the relevant bailiff had failed to record the fact that the debtor had been the owner of a plot of land and other important assets.
The Court recalls that where a judgment debt is against a private person, and the main alleged cause of the non-enforcement is the bailiffs’ conduct, it is appropriate to bring proceedings against those bailiffs to give the State a chance to put matters right internally (see Nazaretian, the decision cited above; Samoylenko and Polonska v. Ukraine, no. 6566/05, § 25, 18 December 2008).
The Court notes that the applicant relates the alleged inefficiency of the enforcement proceedings to the conduct of the enforcement authority. However, she never attempted to sue that authority, which remedy was clearly available to her under section 18 of the Enforcement Act and Articles 207-209 of the General Administrative Code, read in conjunction Article 1005 § 1 of the Civil Code (see Nazaretian, the decision cited above). Thus, she could have requested redress for the damage done by the alleged omissions of the competent bailiff, as a result of which the timely recovery of the court-awarded maintenance was hampered.
It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. As to the remainder of the application
The Court notes that the applicant’s complaint under Article 8 of the Convention relates to the incident of domestic violence which took place on 30 May 1997. However, having due regard to the relevant circumstances of the case, the respondent State can hardly be reproached for passivity in that regard (see Bevacqua and S. v. Bulgaria, no. 71127/01, §§ 65 and 82, 12 June 2008). Thus, as soon as the applicant had reported to the authorities about the incident of 30 May 1997, the prosecution authority opened a criminal case against her partner, the incident was duly investigated and the perpetrator was held both criminally and civilly liable for battery of the applicant (see the Tbilisi Regional Court’s conviction of 11 December 2003).
Even assuming that there existed certain deficiencies in the conduct of the criminal proceedings, the applicant thus arguably maintaining victim status in that regard (see Bevacqua and S., cited above, §§ 74-76), her complaint under Article 8 of the Convention is still belated, in so far as those criminal proceedings were finally terminated by the Supreme Court’s decision of 4 March 2004, delivered in the applicant’s presence, whilst the present application was lodged with the Court on 21 April 2005.
It follows that the complaint under Article 8 of the Convention has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident
[1] Here and elsewhere, approximate conversions are given in accordance with the exchange rate on 29 September 2009.
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