CASE OF GAKHARIA v. GEORGIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano
5. The applicant was born in 1966 and lives in Tbilisi. 6. The applicant and K.G. began living together in 1999. On 9 January 2000 their daughter, L.G., was born. She was raised mainly by her maternal grandmother in Georgia while both parents, whose relationship soon ended, left to work abroad. 7. On 31 March 2008 K.G. applied to the Tbilisi City Court for her daughter to be officially registered as resident at her address. On 19 May 2008 a summons was sent to the applicant at his registered address, informing him of K.G.’s action. According to the courier, the summons could not be served as the house was closed up and no one was living there. The summons was only sent once. On 3 June 2008 the court of first instance, acting on the basis of Article 78 of the Code of Civil Procedure (hereinafter, “the CCP” – see paragraph 15 below), ordered information concerning the proceedings to be published in a daily newspaper called 24 hours. On 24 June 2008 the Tbilisi City Court granted K.G.’s application. The decision was taken in the absence of the applicant, whose whereabouts, according to the ruling, could not be established. 8. On 12 December 2008 the Tbilisi City Court, acting upon another application by K.G., ruled again by default that L.G. could be issued with an international passport and leave the territory of Georgia without her father’s consent. No specific time-limit for that restriction of the applicant’s parental rights was given in the ruling. The court again stated that the applicant’s whereabouts were unknown and ordered the information about the proceedings to be published in 24 hours. Unlike the first set of default proceedings, the summons was sent twice to the applicant at the address he had registered at. It was again not delivered. The courier noted that the house was closed up. 9. It appears from the case file that the custody and guardianship authority, which represented the interests of the child in the above proceedings, made its own attempts to contact the applicant. In conclusions submitted to the Tbilisi City Court, the authority noted that during its visit to the applicant’s registered address it had learnt from neighbours that he had sold the house in 2003 and left for Moscow. Both default decisions were sent to the applicant’s registered address and, as they could not be served, were consequently published in 24 hours according to the procedure provided for in Article 78 of the CCP (see paragraph 15 below). 10. On 6 June 2012 the applicant lodged a complaint with the Tbilisi City Court, seeking to have both default decisions set aside. He stated that he had learnt about the decisions only in May 2012. He also explained that he had not been living in Georgia at the material time, which his former partner had well known. The default proceedings had been unfair as he had not been properly summoned to the hearings. 11. By a decision of 16 August 2012 the Tbilisi City Court rejected the applicant’s application. The court ruled, with reference to Articles 71 § 3 and 422 of the CCP (see paragraphs 15 and 17 below), that the applicant had been duly informed about the proceedings via public notifications in a newspaper and that there was therefore no legal basis to set the impugned decisions aside. It noted that the applicant had been registered at the address where the summonses had been sent and that for the purposes of the proceedings the courts had been justified in using that very address. 12. That decision was upheld by the Tbilisi Court of Appeal on 31 October 2012. It reasoned that the domestic courts had been right to send the summonses to the applicant’s only available registered address. Furthermore, as it had not been possible to serve the summonses on the applicant, the procedure of delivering a summons via a public notification, as provided for in Article 78 of the CCP, had been duly employed. 13. In his last communication with the Court on 15 December 2014, the applicant stated that he could still not have any contact with his daughter.