Communicated on 26 May 2014
FOURTH SECTION
Application no. 4496/11
Maia SITCHINAVA and Davit SITCHINAVA
against Georgia
lodged on 9 December 2010
STATEMENT OF FACTS
1. The applicants, Ms Maia Sitchinava and Mr Davit Sitchinava, are Georgian nationals who were born in 1991 and 1992 respectively and live in Tbilisi. They were both minors at the material time.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants’ parents divorced in 1999, after more than nine years of marriage. The applicants continued to live with their mother in the apartment which was owned to their father, while the latter moved out to another property he owned. In 2003 the applicants’ father formally gave the apartment as a gift to his daughter, which decision he later withdrew.
4. On 24 July 2008 a first-instance court, acting at the applicants’ request and with the consent of their father, determined that the applicants’ place of residence was at the address of their father’s apartment.
5. On 22 August 2008 the applicants’ father sold the apartment concerned. On 14 August 2009 the applicants were served with a writ of enforcement according to which they had to immediately vacate the apartment. They complained to the enforcement authorities; however, on 2 September 2009 they were evicted from their home.
6. The applicants subsequently filed a court action against the enforcement authorities, their father, and the new owner of the apartment, requesting the annulment of the writ of enforcement and their return to the apartment concerned. Their complaint was dismissed by the Tbilisi City Court on 26 November 2009. It appears that that decision was similarly upheld on appeal, although the applicants have failed to produce copies of the relevant court decisions.
7. In parallel, on 1 December 2008 the applicants’ mother, acting on their behalf, initiated civil proceedings seeking the annulment of the sale contract between the applicants’ father and J.T., the new owner of the apartment. On 1 April 2009 the Tbilisi City Court dismissed that complaint. The court concluded that the applicants enjoyed no ownership rights over the contested property. The fact that they had been registered as residents at the relevant address did not have any effect on their father’s exclusive ownership title over the property. The court further stressed that the place of residence of the children was the father’s place of residence in general, and not that specific apartment; moreover, with regard to the property itself, the interests of the bona fide buyer prevailed.
8. According to the case-file, the applicants requested the first-instance court to exempt them from paying the court fees; however, the request was refused.
9. The applicants lodged an appeal against the decision of 1 April 2009, reiterating at the same time their request for a waiver of the court fees, in view of their young age and poor financial situation. The appeal court refused their request, granting, however, several extensions of the payment deadline. After the applicants had paid the court fees of 1,159 Georgian lari (GEL) (approximately 500 euros (EUR)), on 15 January 2010 the Tbilisi Court of Appeal, fully endorsing the reasoning of the court of first-instance, dismissed the applicants’ appeal.
10. On 15 March 2010 the applicants lodged an appeal on points of law, again requesting a waiver of the court fees, this time in the amount of GEL 1,500 (approximately EUR 700). They stressed that they were merely school pupils and had no independent income whatsoever. Their request for the waiver was refused. Despite an extension, the applicants failed to pay the court fees and, as a consequence, by a decision of 10 June 2010 the Supreme Court of Georgia left their appeal on points of law unexamined. That decision was final and no appeal lay against it.
B. Relevant domestic law
11. The relevant Articles of the Code of Civil Procedure provide as follows:
“Article 46. Exemption from court fees
1. The following are exempt from paying court fees ...
(e) applicants – when their complaints concern an alleged violation of the rights of minors;”
“Article 47. Exemption from court fees by a court
1. A court, having regard to the financial situation of a citizen, where the latter substantiates that he or she cannot pay court fees and submits reliable evidence to the court, may in whole or in part exempt the citizen from paying court fees ...”
12. Article 1201 of the Civil Code of Georgia states that in case of divorce, if parents fail to agree, a court must determine the place of residence of minor children. Article 1202 further provides that divorced parents both have equal rights and obligations vis-à-vis their children.
C. Relevant international documents
13. The Convention on the Rights of the Child was adopted by the General Assembly of the United Nations on 20 November 1989 and came into force on 2 September 1990. It has been ratified by all Council of Europe member States. The relevant provisions of that Convention read as follows:
“Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”
“Article 27
1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.
4. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.”
COMPLAINTS
14. The applicants complain, relying in substance on Article 6 § 1 of the Convention, about the allegedly unlawful refusal of the domestic courts to exempt them from court fees. They further claim in substance under Article 8 of the Convention that as a result of arbitrary decisions by the domestic courts they have been rendered homeless.
QUESTIONS TO THE PARTIES
1. Did the refusal of the courts of first and second instance to waive the court fees, as well as the refusal of the Supreme Court of Georgia to examine the applicants’ case because of their failure to pay the court fees, disclose a violation of the applicants’ right of access to court as guaranteed by Article 6 § 1 of the Convention (see, inter alia, Ciorap v. Moldova, no. 12066/02, § 95, 19 June 2007)?
2. Has there been an interference with the applicants’ right to respect for their home, contrary to Article 8 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
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