BURDIASHVILI AND OTHERS v. GEORGIA
Inadmissible
Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. A list of the applicants is set out in the appendix. They are all Georgian nationals, represented by Ms Natia Katsitadze and Mr Philip Leach, lawyers practising in Tbilisi and London. 2. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The Soviet Political Repression Act of 11 December 1997 (“the Act of 11 December 1997”) provided that Georgian nationals who had suffered various forms of political persecution on the territory of the former Soviet Union between February 1921 and 28 October 1990, as well as their first-generation heirs, could claim compensation for non-pecuniary damage. In particular, section 9 of the Act read as follows: “A person who has been recognised as a victim of political repression on account of having been subjected to deprivation of liberty, resettlement, exile, forceful placement in a special place of residence or a psychiatric hospital, or who died as a result of such repression, or this victim’s first-generation heir, shall receive monetary compensation, the amount and procedures for payment of which shall be established by law.” 5. Despite the general undertaking contained in section 9 in fine of the Act of 11 December 1997, the Georgian State did not enact legislation defining the amount and procedures for payment of the relevant compensation. 6. In its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze, the Court found a violation of Article 1 of Protocol No. 1 on account of the respondent State’s failure to undertake the necessary measures to ensure the effective exercise of the applicants’ right to receive monetary compensation for non-pecuniary damage under section 9 of the Act of 11 December 1997 (see Klaus and Yuri Kiladze v. Georgia, no. 7975/06, §§ 68 and 74-77, 2 February 2010). 7. Applying Article 46 of the Convention, the Court stated that, since the finding of a violation under Article 1 of Protocol No. 1 concerned a large number of people and reflected a structural problem, it was urgent to undertake the necessary legislative, administrative and budgetary measures at the domestic level in order that victims of Soviet political repression, who were targeted by section 9 of the Act of 11 December 1997, could effectively benefit from the right to receive compensation under that section (see Klaus and Yuri Kiladze, cited above, §§ 84 and 85). Applying Article 41 of the Convention, the Court also held that if the necessary measures (legislative and other) were still lacking six months after the date on which the judgment became final, the respondent State would have to pay each of the two applicants, in accordance with Article 44 § 2 of the Convention, 4,000 euros (EUR) in respect of non-pecuniary damage (ibid., § 90). 8. As the necessary general measures were not implemented by the respondent State within the above-mentioned time-limit of six months, each of the two applicants in that case duly received EUR 4,000 from the respondent State, as indicated by the Court. 9. For the purposes of implementing the general measures indicated by the Court under Article 46 of the Convention in its judgment of 2 February 2010, in March-April 2011 the Parliament of Georgia introduced draft amendments to the Act of 11 December 1997 and the Code of Administrative Procedure. 10. On 14 April 2011 the Government submitted the above-mentioned draft amendments to the Committee of Ministers of the Council of Europe (see paragraphs 25 and 26 below). 11. On 19 April 2011 the amendments were adopted, with certain modifications, by the Parliament of Georgia. They entered into force on 18 May 2011 (hereinafter “the Amendments of 19 April 2011”). 12. Thus, under the new Article 21 §§ 26-29 of the Code of Administrative Procedure, victims of Soviet political repression or their first-generation heirs had until 1 January 2014 to lodge applications with the Tbilisi City Court for monetary compensation under section 9 of the Act of 11 December 1997. The new provisions of the Code also provided for various additional procedures for the lodging of such applications, their examination by the Tbilisi City Court and subsequent appellate proceedings before the Tbilisi Court of Appeal, the latter acting as the final level of jurisdiction in such matters. 13. As to the amount(s) of compensation payable under section 9 of the Act of 11 December 1997, they were not fixed by any of the abovementioned legislative amendments. Instead, a new subsection (4) was added to section 9 of the Act, stating that the relevant domestic court had the competence to determine an appropriate amount of compensation in each case, having regard to the particular factual circumstances: Section 9(4) “The amount of compensation shall be determined by the court on the basis of the gravity of the form of coercion in question ... [deprivation of liberty, resettlement, exile, forceful placement in a special place of residence or a psychiatric hospital or death], as well as the age and health of the repressed person or his/her first-generation heir, and other objective factors.” 14. As confirmed by the official statistics issued by the Tbilisi City Court on 16 September 2011, within five months of the entry into force of the above-mentioned legislative amendments, more than 3,000 applications for monetary compensation under section 9 of the Act of 11 December 1997 were lodged with the City Court, out of which seventy-three cases were decided. The compensation awards in the cases examined varied from 100 to 500 Georgian Laris ((GEL) – EUR 46 and EUR 230 respectively), the maximum amount having been awarded only to the first-generation heirs of victims of repression who had been executed by the Soviet State. 15. All four applicants (see the appendix below) are first-generation heirs of victims of Soviet political repression. In July 2011, after the entry into force of the Amendments of 19 April 2011 (see paragraphs 914 above), they lodged applications with the Tbilisi City Court for monetary compensation under section 9 of the Act of 11 December 1997. 16. Thus, the first applicant requested GEL 15,000 (EUR 7,000). She referred, amongst other circumstances, to her age (she was seventy-two years old), poor state of health and, most importantly, to the fact that her father had been recognised, by a court decision of 11 May 1998, as a victim of Soviet repression on account of his arbitrary conviction by a Soviet military tribunal for proffering anti-Soviet statements and his consequent execution by a firing squad in October 1942. 17. As to the second, third and fourth applicants, who are siblings, they jointly requested GEL 25,000 (EUR 11,820). The applicants submitted that their father had been recognised as a victim of political repression in 1997 on account of his arbitrary conviction in 1951 by a Soviet military tribunal for high treason; their father had first been sentenced to twenty-five years’ imprisonment but had been pardoned and released from detention in 1955. 18. On 17 August and 19 September 2011 the Tbilisi City Court, in the context of two separate and unrelated sets of proceedings, allowed the applicants’ claims in part. On 1 and 15 November 2011 the Tbilisi Court of Appeal upheld those decisions on appeal. The first applicant was granted compensation of GEL 400 (EUR 190), whilst the second, third and fourth applicants were jointly awarded the sum of GEL 290 (EUR 137). 19. The reasons given by the domestic courts in their decisions were similar in both sets of proceedings. Thus, at first instance, the Tbilisi City Court, taking into account the relevant domestic provisions as well as the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), noted that the amount of compensation payable under section 9 of the Act of 11 December 1997 had not been fixed by law but, on the contrary, had been left to be determined by the relevant court on the basis of the particular circumstances of each individual case. On the other hand, since it was impossible to assess all the suffering, injustice and harm caused by the various drastic forms of Soviet political repression, any such amount of compensation could only be, by its very nature, symbolic. No monetary compensation could ever serve as sufficient non-pecuniary relief. More important in this regard was the fact that the Georgian State had acknowledged the historical injustice as such. The court added that the respondent State had fully complied with the Court’s judgment of 2 February of 2010 by introducing legislative amendments aimed at filling “the legislative vacuum” which had been criticised by the Court. 20. As to the appellate proceedings, the Tbilisi Court of Appeal, in reply to the applicants’ argument that the domestic awards were derisory and disproportionate in comparison with the sums awarded by the Court in its judgment in the case of Klaus and Yuri Kiladze (cited above, § 90), stated that the domestic courts retained a broad discretionary power to determine amounts of compensation. The appellate court pointed out that the Court itself had acknowledged that the respondent State should remain free to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court (ibid. § 88); the Court had not indicated to the respondent State any specific amount of compensation to be paid under section 9 of the Act of 11 December 1997. The appellate court also stated that, although the amount of compensation should not be less than the minimum wage in Georgia (some EUR 74), the State’s budgetary capacities and the overall number of victims of Soviet political repression (several thousands of people) should also be taken into account when determining the award. 21. For the purposes of further implementation of the general measures indicated by the Court in its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), a second wave of legislative measures was initiated by the respondent State on 31 October 2014. Notably, on the latter date Parliament made a number of significant amendments to the Act of 11 December 1997 and the Code of Administrative Procedure, which came into force on 1 January 2015 (hereinafter “the Amendments of 31 October 2014”). 22. In particular, the amended section 9(4) of the Act of 11 December 1997 determined the range of compensation payable to victims of Soviet political repression. Thus, the minimum amount payable under the law was fixed at GEL 1,000 (EUR 454), whilst the maximum amount within the range was set at GEL 2,000 (EUR 908). The provision further specified that the exact amount payable as compensation should be determined by a domestic court within the above-mentioned range in the light of the particular circumstances of each case, such as the gravity or the type of persecution in question, the age and health of the claimant – the victim of Soviet political repression or of his or her first-generation heir – and other relevant factors. 23. Furthermore, in order to assist those victims of Soviet political repression whose claims had already been decided under the preceding version of section 9(4) of the Act of 11 December 1997, the Amendments of 31 October 2014 provided that the legislation would have retroactive effect. In particular, they stated that those victims of Soviet political repression, or their first-generation heirs, who had already been awarded compensation by the Tbilisi City Court in amounts falling below the minimum threshold set by the new section 9(4) of the Act (compare paragraphs 13 and 22 above) were entitled to re-apply to a court for a fresh assessment of the particular circumstances of their case, determination of the amount of compensation payable under the amended section 9(4) and, if applicable, payment of the difference between the new amount thus determined and the previous award. 24. The Amendments of 31 October 2014 further re-worded Article 21 § 26 of the Code of Administrative Procedure to state that together with the Tbilisi City Court, which maintained jurisdiction to hear claims from victims of Soviet political repression or their first-generation heirs residing in the east of Georgia, the Kutaisi City Court was vested with jurisdiction to hear claims emanating from claimants residing in the west of the country. 25. During their 1108th meeting held on 10 March 2011, in the context of their supervision of the execution of the Court judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), the Committee of Ministers adopted a decision, which reads as follows: “The Deputies, 1. took note with satisfaction that the just satisfaction as well as the default interest due have been paid to the applicants; 2. took note with interest of the preliminary action plan which has been submitted by the Georgian authorities according to which a draft law has been prepared which will be submitted to the Parliament in March 2011; 3. invited the Georgian authorities to submit to them a consolidated action plan for their 1115th meeting (June 2011).” 26. During their 1115th meeting held on 8 June 2011, the Committee of Ministers adopted another decision on the matter, which reads as follows: “The Deputies, 1. took note, with satisfaction, of the action plan submitted by the Georgian authorities according to which in April two draft laws were being discussed before Parliament with implementation by the Tbilisi court expected to begin in May 2011: the first amending the [Act of 11 December 1997], in order to provide for compensation for victims; the second one amending the Code of Administrative Proceedings in order to organise the practical modalities of granting such compensation; 2. also took note with satisfaction of the subsequent information (adoption on 19/04/2011 of the amendment to [Act of 11 December 1997] and publication in the Official Journal of 18 May 2011) showing that the action plan is being implemented within the foreseen timeframe; 3. decided therefore to transfer this case for examination under the standard supervision procedure.” 27. Lastly, during their 1222nd meeting held on 12 March 2015, the Committee of Ministers adopted a Resolution (CM/ResDH(2015)41) on the closure of supervision of the execution of the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above). The relevant parts of the Resolution read as follows: “Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established; ... Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation; Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court ...; Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted, Declares that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and Decides to close the examination thereof.”