FOURTH SECTION
DECISION
Application no. 17398/10
Apolon TSULAIA
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 21 March 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 10 March 2010,
Having regard to the declaration submitted by the respondent Government on 2 August 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 Apolon Tsulaia, is a Georgian national, who was born in 1949 and lives in Tbilisi. He was 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 B. Dzamashvili, of the Ministry of Justice.
3. By a judgment of 28 November 2000 the Vake-Saburtalo District Court ordered the Agency of Veterinary Care of the Ministry of Agriculture (“the AVC”) to pay the applicant 127,000 Georgian Laris (GEL, approximately 47,500 euros (EUR)) for breach of contract and consequential pecuniary damage.
4. The judgment of 28 November 2000 became final and enforceable on 17 January 2003. However, no payment was effectuated in the applicant’s favour.
5. Between 21 May 2004 and 26 January 2006, winding-up proceedings against the AVC were formally ongoing. During those proceedings, the applicant did not come forward as a person to whom the agency owed a debt, by requesting registration as a creditor. On 26 January 2006 the AVC was irrevocably liquidated by Government Ordinance no. 20. The Ordinance did not indicate any legal successor to the liquidated agency.
6. The applicant complained before the Court about the inability to retrieve the debt under the judgment of 28 November 2000. He relied on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention.
7. On 7 December 2015 notice of the application was given to the Government.
THE LAW
8. The Government submitted that the judgment debt of 28 November 2000 could no longer be retrieved from the respondent agency since the latter had been irrevocably liquidated on 26 January 2006. Nevertheless, they expressed their readiness to pay the applicant non-pecuniary damages for the period of non-enforcement of the judgment when the latter had still been enforceable, that is between 17 January 2003 and the date of the liquidation of the agency (see paragraphs 4 and 5 above).
9. In the light of the above-mentioned considerations, the Government first attempted to reach a friendly settlement with the applicant. However, those attempts failed and by a letter of 2 August 2016 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the relevant part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
10. Notably, after having acknowledged that the judgment of 28 November 2000 remained unenforced for a significant period of time, until the respondent agency’s liquidation, in breach of the applicant’s relevant rights under the Convention, the Government undertook to pay him EUR 8,000 (eight thousand 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.
11. By a letter of 27 September 2016 the applicant indicated that he was not satisfied with the terms of the unilateral declaration. He explained that he expected the respondent State to assume full responsibility for the payment of the judgment debt even after the respondent AVC had been liquidated as a legal entity.
A. As to whether the judgment of 28 November 2000 is currently valid and enforceable
12. At the outset, the Court observes that part of the applicant’s complaints is based on his assumption that the judgment of 28 November 2000 remains binding and enforceable to date.
13. 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, 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 53).
14. Returning to the circumstances of the present case, the Court observes that the applicant had never come forward as a person with a pecuniary claim when the winding-up proceedings against the respondent VCU had been ongoing, and thus the retrieval of the judgment debt had still been possible, between 21 May 2004 and 26 January 2006 (see paragraph 5 above). It was by the irrevocable liquidation of the AVC on 26 January 2006 at the latest, which occurred without leaving a legal successor to the agency’s debts, that the applicant learned or ought to have learnt that it was no longer possible to enforce the initial judgment of 28 November 2000 (compare with Sokolov and Others, decision cited above, §§ 34 and 35; Bichenok, decision cited above, §§ 23 and 25; and Babich and Azhogin, decision cited above, §§ 45 and 52). However, the present application was introduced as late as 10 March 2010.
15. It follows that part of the present application, in so far as it relates to the applicant’s assumption that the judgment of 28 November 2000 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 Government’s unilateral declaration
16. On the other hand, the Court observes that the Government have explicitly acknowledged a violation of the relevant provisions of the Convention on account of the period of non-enforcement of the judgment of 28 November 2000 whilst the latter had remained binding and enforceable, that is between 17 January 2003 and 26 January 2006 (see paragraphs 4, 5 and 8 above).
17. 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”.
18. 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.
19. 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).
20. 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).
21. 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)).
22. 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).
23. 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 respondent State’s failure to discharge the debt whilst the judgment of 28 November 2000 was still enforceable and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the relevant 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 13 April 2017.
Andrea TamiettiKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy