THIRD SECTION
 
 
 
 
 
CASE OF DADIANI AND MACHABELI v. GEORGIA
 
(Application no. 8252/08)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
12 June 2012
 
 
FINAL
 
12/09/2012
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dadiani and Machabeli v. Georgia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Josep Casadevall, President,
 Corneliu Bîrsan,
 Alvina Gyulumyan,
 Egbert Myjer,
 Ineta Ziemele,
 Nona Tsotsoria,
 Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 22 May 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 8252/08) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Georgian nationals, Mrs Elene Dadiani and Mr David Machabeli (“the applicants”), on 4 January 2008. 2. The applicants were represented by Mr Alexander Baramidze, Mr Irakli Kandashvili and Mr Hans von Sachsen-Altenburg, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice. 3. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about the authorities’ failure to enforce a judgment delivered by a domestic court in their favour. They also alleged a violation of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 on account of the inexplicable delay in the second set of proceedings and a violation of Article 1 of Protocol No. 1 on account of the expropriation of the ancestral lands by the Soviet authorities. 4. On 28 April 2008 the Court decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants, Mrs Elene Dadiani and Mr David Machabeli, were born in 1923 and 1964 respectively and live in Tbilisi. The second applicant is the first applicant’s nephew. The first applicant’s mother was deprived of her land and other assets by the Soviet authorities in the 1920s. A. First set of proceedings
6. In 2004 the applicants brought an action against the relevant local authority, seeking restitution of their ancestral lands. In support of their claim, the applicants submitted archives confirming their ancestor’s title to the claimed land and, as a legal basis, referred to general rules on the protection of property and inheritance contained in the Civil Code, the Constitution and the international human-rights treaties ratified by Georgia. 7. In a judgment of 31 January 2005, the Gurjaani District Court established the applicants’ joint ownership of land situated in the village of Bakurtsikhe. The land was officially identified as “plot no. 604”. The defendant local authorities did not lodge an appeal and the judgment became binding. 8. On 15 February 2005 the applicants’ lawyer obtained from the Gurjaani District Court the necessary enforcement writ, the relevant part of which read as follows:
“Elene Dadiani and David Machabeli are hereby recognised as ... the co-owners of plot no. 604 in the village of Bakurtsikhe.” ... 9. On 26 October 2005 the applicants, acting through their lawyer, submitted a copy of the enforcement writ together with the final judgment of 31 January 2005 to the Gurjaani Public Registry for enforcement. In a letter of 2 November 2005, the registrar replied that it was not possible to register the land in the applicants’ name, as their documentation was incomplete. The lawyer was found to be at fault for the fact that the final judgment neither indicated the size of plot no. 604 nor specified its category: agricultural or non-agricultural. The lawyer was further invited to submit a copy of his identity document, the authority form proving his right to represent the applicants, the original enforcement writ and the cadastral plan of the land in question. 10. The applicants maintained, relying on the billing information from the lawyers for the relevant period of time, that after receipt of the letter of 2 November 2005 the lawyers, acting on their behalf, had visited the Gurjaani Public Registry on several occasions and voiced their concerns regarding the failure to enforce the judgment. They claimed, inter alia, that they were not in a position to produce an amended final court decision. In reply, the Gurjaani Public Registry refused to register plot no. 604 for various reasons. 11. The judgment of 31 January 2005 still remains unenforced. B. Second set of proceedings
12. On 25 May 2005 the applicants lodged another action claiming, on the same legal basis, ownership of plot no. 646, adjacent to plot no. 604. The action was registered by the Gurjaani District Court on the same day. 13. According to the applicants, the examination of their second action has not started yet. II. RELEVANT DOMESTIC LAW AND PRACTICE
14. The relevant domestic law and practice as regards the restitution of property has been described in the case of Teimuraz Andronikashvili v. Georgia (no. 9297/08, 22 June 2010) and Klaus and Yuri Kiladze v. Georgia (no. 7975/06, §§ 23 and 25-26, 2 February 2010). A. The Regulations of the National Public Registry Agency of 19 July 2004 (adopted pursuant to Order no. 835 of the Minister of Justice of Georgia)
15. The National Public Registry Agency is a legal entity governed by public law established under the Ministry of Justice. One of its main functions is to register ownership title and other related rights over real property for the purpose of their recognition and verification. The Public Registry Agency is responsible, among other things, for the creation and maintenance of cadastral data on real property. B. The Land Registration Act of 14 November 1996 (“the Land Act” was repealed on 28 February 2006)
16. Under section 5 (b) of the Land Act, the registrar was entitled to request the submission of any document necessary for land registration purposes. The interested party had to comply with the registrar’s request immediately. C. The Civil Code of Georgia, as worded at the material time
17. Article 1005 § 1 of the Civil Code provides that damage done to an individual by either negligence or deliberate misconduct of a public servant must be compensated by the State. D. The Criminal Code of Georgia, as worded at the material time
18. Under Article 381 of the Criminal Code, the non-execution of a judicial decision constitutes an offence:
“The non-execution of a binding judicial decision, or other judicial decision, or the obstruction of its execution by the State, government or local-government officials, or by the executives of a corporation or other organisations [shall be punished] ...”
E. The General Administrative Code of Georgia
19. Pursuant to Article 3 § 4 (g) of the General Administrative Code of Georgia, the Code does not apply to those activities of the executive that are related to the enforcement of final court judgments. 20. In accordance with Article 177 § 3 of the General Administrative Code, a complaint may be filed against any action of an administrative agency pursuant to the procedure prescribed for filing a complaint in respect of an administrative legal act. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
21. The applicants complained about the non-enforcement of the binding judgment of 31 January 2005 and the inexplicable delay in the second set of proceedings. They relied on Article 6 § 1 of the Convention, the relevant part of which reads 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 ...”
Admissibility
22. The Government raised several objections to the admissibility of the application. 1. As regards the second set of proceedings
(a)  The parties’ submissions
23. The Government submitted that Article 6 § 1 of the Convention was inapplicable ratione materiae to the second set of proceedings because Georgian law did not contain a right to restitution of property expropriated by the Soviet authorities. In their submissions, they noted that the Act of 11 December 1997 concerning victims of political persecution by the Soviet State explicitly stated that the issue of restitution was to be addressed by separate legislation. However, no such act had been passed by the Georgian legislature to date. 24. The applicants disagreed. (b)  The Court’s assessment
25. The Court notes that, in its recent case of Klaus and Yuri Kiladze v. Georgia (cited above, §§ 55-61), it has already established, after having examined the relevant Georgian law, that there is no right to restitution of property expropriated from Georgian nationals or their ancestors by the Soviet authorities (see also Teimuraz Andronikashvili v. Georgia, cited above). 26. It follows that the applicants’ complaint about the length of the second set of proceedings is incompatible ratione materiae with Article 6 § 1 of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4. 2. As regards the first set of proceedings
(a)  The objection of inapplicability ratione materiae
27. The Government reiterated their argument concerning inadmissibility ratione materiae with respect to the first set of proceedings. The applicants contested that argument. 28. The Court observes that by the judgment of 31 January 2005, the Gurjaani District Court established the applicants’ joint ownership over plot no. 604. The defendant local authorities did not lodge an appeal and the judgment became binding. According to the Court’s constant case-law, the enforcement of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see, for example, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II; Burdov v. Russia (no. 2), no. 33509/04, § 65, ECHR 2009; Apostol v. Georgia, no. 40765/02, § 37, ECHR 2006‑XIV; and Jafarli and Others v. Azerbaijan, no. 36079/06, § 52, 29 July 2010). Consequently, Article 6 § 1 of the Convention applies to this part of the proceedings and the Government’s objection should thus be dismissed. (b)  The objection of failure to exhaust domestic remedies
29. The Government argued that there were several effective domestic remedies against non-enforcement that had not been used by the applicants in the present case. In the first place, they alleged that the applicants had not brought an action for damages under Article 1005 § 1 of the Civil Code of Georgia. Secondly, according to the Government, the applicants had not brought criminal proceedings under Article 381 of the Criminal Code of Georgia against the State official allegedly responsible for the delay in enforcing the judgment. In that connection they submitted statistical data supplied by the Supreme Court of Georgia on the number of criminal cases dealt with by the domestic courts under Article 381 of the Criminal Code. Lastly, the applicants had not sought administrative review of the letter of 2 November 2005 under Article 177 § 3 of the General Administrative Code of Georgia. 30. The applicants disagreed with the Government. They maintained that, by failing to provide relevant examples of domestic case-law, the Government had not showed that any of the above-mentioned domestic remedies were indeed effective. They referred, further, to the case of “IZA” LTD and Makrakhidze v. Georgia (no. 28537/02, § 35, judgment of 27 September 2005), in which the Court had stated that the facts of that case and of similar cases brought against Georgia suggested the existence of a persistent problem of non-enforcement of final judgments delivered against the State budget institutions. Lastly, relying on the case of Hornsby v. Greece (cited above, § 37), the applicants maintained that none of the impugned remedies could be deemed sufficient to remedy their complaint. 31. The Court reiterates that under Article 35 § 1 of the Convention the only remedies required to be exhausted are those that are effective and capable of redressing the alleged violation (see Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006-II). 32. Turning to the first limb of this objection, the Court considers that in this case a claim for damages against the State cannot be deemed sufficient to remedy the applicants’ complaints. Even assuming that the outcome of such actions had been favourable to the applicants, compensation for damages stemming from an alleged misconduct of a public servant would not have been a proper alternative to the measures that the Georgian legal system should have afforded the applicants in order to overcome the fact that they were unable to register the plot in their name despite a final court decision granting them the ownership title (see Hornsby, cited above, § 37; Iatridis v. Greece [GC], no. 31107/96, § 83, ECHR 1999-II; and Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, § 83, 25 November 2010). 33. The same holds true as regards the criminal remedy referred to by the Government. Indeed, it is not clear how the success of a criminal complaint lodged by the applicant would have afforded direct and speedy redress for the problem of non-enforcement, in so far as the criminal courts clearly lacked the power to order the competent authorities to proceed with enforcement of the judgment (see, mutatis mutandis, Apostol, cited above, §§ 44-46, and Stoycheva v. Bulgaria, no. 43590/04, § 40, 19 July 2011). 34. As regards the administrative-law remedy, the Court concurs with the Government’s submission that in cases of inaction or other misconduct on the part of public officials, the alleged victims may be expected to bring administrative proceedings against the relevant public official or officials (see, for example, Romashov v. Ukraine, no. 67534/01, § 31, 27 July 2004). However, the particular circumstances of the present case lead the Court to the conclusion that no administrative-law remedy was available to the applicants at the material time. Notably, as can be seen from Article 3 § 4 of the General Administrative Code of Georgia, the activities of the executive branch related to the enforcement of the final court decisions were explicitly excluded from the scope of application of that provision (see paragraph 19 above). The formulation of Article 3 § 4 (c) of the Code is absolutely clear and leaves no room for a different interpretation. This conclusion, in the Court’s opinion, is further supported by the fact that the Government failed to submit any examples of domestic court decisions concerning the use of this remedy in situations related to the enforcement of judgments (see Popov v. Moldova, no. 74153/01, §§ 34-35, 18 January 2005; Prodan v. Moldova, no. 49806/99, §§ 42, ECHR 2004‑III (extracts); and Marini v. Albania, no. 3738/02, § 156, 18 December 2007). 35. In view of the foregoing factors, the Court cannot but conclude that the remedies referred to by the Government were inadequate to secure redress for the alleged breach and the Government’s objection must be dismissed. (c)  The objection of non-compliance with the six-month time-limit
36. The Government argued that the application had been submitted outside the six-month time-limit prescribed by the Convention. They maintained that, in so far as the applicants’ main argument was that, by the letter of 2 November 2005, the Gurjaani Public Registry prevented enforcement of the Gurjaani District Court’s decision of 31 January 2005, that letter was the last decision for the purposes of Article 35 of the Convention. 37. The applicants disputed the Government’s argument, arguing that the six-month time-limit was not applicable to alleged continuous violations, such as non-enforcement of a final court decision. They maintained in that connection that the letter of 2 November 2005 was not a formal decision resulting in termination of the enforcement proceedings; thus its date could not been taken as the starting point for the purposes of the six-month time-limit. They had had several follow-up meetings with the registrar concerning enforcement of the judgment in issue and the enforcement proceedings were still pending. 38. The Court observes that the authorities’ failure to comply with the final judgment leads to a continuing situation, so that the six-month rule does not apply (see, among other authorities, Iatridis, cited above, § 50). It further considers, as did the applicants, that the letter of 2 November 2005 did not have the effect of terminating the enforcement proceedings (see S.C. Prodcomexim SRL v. Romania, no. 35877/05, § 30, 27 October 2009; and, a contrario, Kravchenko v. Russia, no. 34615/02, § 34, 2 April 2009). The enforcement proceedings are still pending, as the judgment of 31 January 2005 has not ceased to be binding and enforceable (see Hornsby, cited above, § 35, and Iatridis, cited above, § 50); no proceedings have been instituted under the Georgian law for its modification or annulment before the domestic courts. 39. The objection must therefore be dismissed. The Court notes that the applicant’s complaint under Article 6 § 1 of the Convention concerning the first set of proceedings is not inadmissible on any other grounds. It must therefore be declared admissible.

Article of the Convention at issue: Article 6
Outcome: violation