BAGHATURIA v. GEORGIA
Inadmissible
András Sajó;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
The applicant, Mr Tengiz Baghaturia, is a Georgian national who was born in 1953 and lives in Tbilisi. He was represented before the Court by Ms Sophio Japaridze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were successively represented by their Agents, Mr David Tomadze and Mr Levan Meskhoradze of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a member of a private housing cooperative (“the cooperative”). Under an agreement of 30 May 1999, the cooperative undertook to deliver to the applicant, in exchange for a monetary contribution, a refurbished apartment of 200 square metres on the first floor of a block of flats which was to be constructed in the centre of Tbilisi. On 12 December 2003 the construction of the block was terminated, but the cooperative refused to fulfil its contractual obligation vis-à-vis the applicant, excluding him from the membership. The applicant then sued the cooperative, claiming the property title to a flat corresponding to the conditions stipulated in the agreement of 30 May 1999 (“the disputed flat”). He also sought an injunction barring the cooperative from registering the flats in the newly constructed block, pending the resolution of his dispute. In an interlocutory decision of 16 December 2003, the Vake-Saburtalo District Court in Tbilisi allowed the applicant’s request for an injunction, ordering the Land Registry to attach all the flats in the block, pending the final determination of the dispute. However, that decision was overturned, on the basis of the cooperative’s appeal, by the same District Court on 17 September 2004. The attachment record was consequently deleted from the Land Registry, and the flats in the block were immediately distributed, with property rights, among the members of the cooperative. The applicant then appealed against the decision of 17 September 2004, and on 26 November 2004 the Tbilisi City Court delivered another interlocutory decision, confirming the initial attachment order of 16 December 2003. The decision of 26 November 2004 became binding. On 16 February 2005 the applicant brought a court action against the competent bailiffs from the Tbilisi enforcement office and the Land Registry, requesting those authorities to enforce the interlocutory decision of 26 November 2004 and to pay him damages for the delay in its enforcement (“the action of 16 February 2005”). Initially, the Didube-Chughureti District Court on 8 April 2005 dismissed the action of 16 February 2005 as manifestly ill-founded. However, the applicant appealed, explaining that the essence of his claim was to restore the situation which had existed prior to the lifting of the attachment order on 17 September 2004. During the appellate proceedings, the applicant further specified that he aimed at the annulment of those records in the Land Registry which had confirmed the distribution of the flats between the cooperative members on the first floor of the block. In addition, the applicant dropped his claim for damages. On 5 December 2005 the Tbilisi Court of Appeal allowed the applicant’s appeal against the decision of 8 April 2005, ordering the Land Registry and the bailiffs to annul the cooperative members’ property titles to the flats located on the first floor of the block. In its decision, the appellate court duly noted that the applicant had withdrawn his claim for damages. As neither the applicant nor the respondent authorities lodged a cassation appeal against the decision of 5 December 2005, it became binding and, as disclosed by the case file, was later enforced by the authorities. In a judgment of 12 February 2004, the Vake-Saburtalo District Court allowed the applicant’s civil action on the merits, ordering the cooperative to transfer the disputed flat to the applicant’s ownership. The judgment of 12 February 2004 was fully upheld by the Tbilisi Regional Court and the Supreme Court of Georgia on 4 November 2004 and 5 May 2005 respectively, becoming binding on the latter date. On 10 June 2005 the Tbilisi City Court issued to the Tbilisi enforcement office a writ for the enforcement of the judgment of 12 February 2004. On 21 June 2005 the bailiff from the Tbilisi enforcement office, who became in charge of the applicant’s case, proposed to the cooperative to abide voluntarily by the judgment of 12 February 2004. The President of the cooperative, Mr G., replied, on the following day, that all the flats on the first floor of the block had already been alienated to third parties. On 7 July 2005 the bailiff again requested the cooperative to abide by the judgment of 12 February 2004, on pain of the initiation of criminal proceedings against Mr G. under Article 381 of the Criminal Code. The reiterated proposal was left unanswered by the debtor, and on 7 August 2005 the bailiff transmitted the case to an investigative unit of the Ministry of Justice, the agency in charge of enforcement proceedings, for more drastic measures. Consequently, on 23 August 2005 a criminal case was opened against Mr G. for the obstruction of the enforcement. On 19 July 2006 the applicant complained to the Enforcement Department of the Ministry of Justice (“the Enforcement Department”), about the bailiff’s failure to recover the judgment debt of 12 February 2004. The applicant noted that, after the records of the third parties’ property titles to the relevant flats had been removed from the Land Registry, there was no impediment to the transfer of the disputed flat to his ownership. In a letter of 7 August 2006, the Enforcement Department informed the applicant of the measures which had been undertaken to compel the cooperative to abide by the judgment of 12 February 2004. The authority also invited the applicant, in the light of the difficulties associated with the transfer of the disputed flat, to consider the possibility of an adjustment in the modalities of the enforcement, as envisaged by the relevant enforcement legislation. That proposal was left unanswered by the applicant. Subsequently, an extensive exchange of correspondence, bearing on the method and various factual details of the possible transfer of the disputed flat to the applicant, took place between the bailiff and Mr G. However, those negotiations yielded no result, and on 2 August 2007 the Tbilisi City Court ordered, within the framework of the criminal proceedings, Mr G.’s dismissal from the post of President of the cooperative. On 22 August 2007 the bailiff requested all the members of the cooperative to reach an agreement on the transfer of the disputed flat to the applicant, on pain of the initiation of criminal proceedings under Article 381 of the Criminal Code against each of them. On 19 October 2007, brokered by the bailiff, Mr G. made a friendly settlement proposal to the applicant. Notably, the former President of the cooperative expressed his readiness to cede his own apartment free of charge to the applicant, in exchange for the latter’s waiver of any further claims over the disputed flat. The applicant did not accept that proposal. According to the case file, the judgment of 12 February 2004 has not been enforced to date. The non-enforcement of a binding judgment or the obstruction of its enforcement by, inter alia, executives of a corporation or other organisation was a criminally liable offence, prescribed by Article 381 of the Criminal Code. Pursuant to section 18 of the Enforcement Proceedings Act of 16 April 1999, an appeal against any procedural decision, action or omission of an agent of the enforcement authority (bailiff) lay to a court. Pursuant to Articles 207-209 of the General Administrative Code, the State could be sued for the harm done by an action or omission of any public servant. In such proceedings, the relevant provisions of the Civil Code could be applied, if necessary. Article 1005 § 1 of the Civil Code stated that damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the State.