NAZARETIAN v. GEORGIA
Inadmissible
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
The applicant, Mrs Liana Nazaretian, is a Georgian national who was born in 1959 and lives in Tbilisi. She was represented before the Court by Mr Malkhaz Labadze, 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. In a judgment of 8 July 1999 the Gldani-Nadzaladevi District Court in Tbilisi ordered that a monthly allowance be paid to the applicant by her former spouse until their child, born in 1993, reached the age of majority. That judgment became binding on 10 August 1999. As disclosed by the case file, since the debtor failed to comply with this judgment, the applicant obtained a writ of execution from the GldaniNadzaladevi District Court and requested, on an unspecified date, the initiation of enforcement proceedings. The bailiffs, resorting to a number of forcible measures, retrieved from the debtor the child allowance for approximately ten months. As further disclosed by the case file, on 2 May 2001 the applicant requested, for unspecified reasons, the discontinuation of the enforcement proceedings. According to a receipt paper signed by the applicant on the same day, the bailiff handed to her all the case materials, including the enforcement writ. On 20 June 2001 the applicant, claiming that her former spouse had a higher income than that acknowledged in the judgment of 8 July 1999, requested that the allowance be increased (“the second set of child allowance proceedings”). Her claim was found to be unsubstantiated by several instances, and, lastly, by the Supreme Court of Georgia on 8 October 2004. Subsequent to the termination of the second set of child allowance proceedings, the applicant requested, either in October or November 2004, the bailiffs to proceed with the enforcement of the judgment of 8 July 1999. The Enforcement Department of the Ministry of Justice (“the Enforcement Department”) replied in late November 2004, reminding the applicant of the fact that the enforcement proceedings had been discontinued at her request. If she wished to have those proceedings re-opened, she had to re-submit the relevant writ of execution, as required by section 20 § 1 of the Enforcement Proceedings Act of 16 April 1999 (“the Enforcement Act”). Pursuant to the applicant’s request, the Gldani-Nadzaladevi District Court issued, on 24 January 2005, another writ of execution for the judgment of 8 July 1999, and on 31 January 2005 the enforcement proceedings were formally reopened. However, since the writ of 24 January 2005 indicated an invalid address for the debtor, the bailiff sent the document back to the applicant on 7 April 2006 unenforced. On 22 June 2005 the Enforcement Department, acting in reply to the General Prosecutor Office’s enquiry about the cause of non-enforcement, reminded the applicant of her obligation to provide an enforcement writ with the debtor’s correct address, without which information no enforcement measures could be undertaken. Section 5 § 1 “Bailiffs at Enforcement Offices [of the Ministry of Justice] shall be responsible for the execution of the decisions provided for hereunder.” Section 17 § 5 “Bailiffs shall take all lawful measures available in order to secure the speedy and effective enforcement of decisions, to explain to parties their rights and responsibilities, and to assist in the protection of their rights and legal interests.” Pursuant to section 18 §§ 1 and 2, an appeal against any procedural decision, action or omission of the bailiff lay to a court. Section 20 § 1 stated that enforcement proceedings could not be launched without the relevant writ of execution. Pursuant to section 37, the reasonableness of the decision to discontinue the enforcement proceedings could be reviewed by a court at the creditor’s request. Pursuant to Articles 207-209, the State could be sued for the harm done by action or omission of any public servant as well as by the implementation of a lawfully issued legal-administrative act. In such proceedings, the relevant provisions of the Civil Code could be applied, if necessary. Pursuant to Article 1005 § 1, damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the State.