CASE OF TCHITCHINADZE v. GEORGIA
Violation of Art. 6-1;Violation of P1-1;Just satisfaction partially reserved;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1952 and currently lives in Belgorod, in the Russian Federation. 6. He owned a house located at 54 Mazniashvili Street in Batumi, in the Ajarian Autonomous Republic (“the AAR”), Georgia. The house and its adjacent premises were located on a plot of land of some 284 square meters. 7. Under a contract of 8 April 1994 (“the contract of sale”), the applicant ceded to Mr G., by then the Ajarian Deputy Minister of the Interior, half of his house (“the Mazniashvili estate”) for the price of 150,000,000 coupons (the provisional Georgian currency introduced at the beginning of the 1990s for purposes of monetary reform). According to the case file, the purchasing power of that sum corresponded to some 300 euros (EUR) at the material time. The contract of sale was certified by a notary. As further disclosed by a written statement of a witness to that transaction, after the signing of the contract Mr G. gave the applicant 3,000 United States dollars (EUR 2,199) in cash. Shortly after the sale of the Mazniashvili estate, the applicant left Batumi and settled, together with his family, in the Russian Federation. Allegedly, a reason for that hasty departure was Mr G.'s continuous pressure on the applicant to cede the remaining part of the house. 8. As a result of tensions between the central and local authorities (see The Georgian Labour Party v. Georgia, no. 9103/04, § 52, 8 July 2008), members of the Ajarian government, including Mr G., fled the country in May 2004. 9. On 7 June 2004 the applicant brought a civil action against Mr G., requesting that the contract of sale be declared null and void for having been entered into under duress (“the civil case”). In particular, the applicant, referring to the relevant factual circumstances, claimed that the respondent, by then an extremely powerful person in the AAR, had forced him to cede the Mazniashvili estate for a ludicrously small price under threats to his person and family. The applicant also sought an injunction to have the estate attached until after the final resolution of the dispute. 10. In a decision of 30 June 2004, the Batumi City Court granted the injunction and ordered the attachment of the Mazniashvili estate. The City Court transmitted its decision, describing the facts of the dispute, to the Chamber of Notaries of the Ajarian Ministry of Justice for enforcement. In the absence of an appeal, the decision became final after five days, and, as disclosed by the case file, the relevant attachment record was duly entered in the Land Register. 11. On 25 August 2004 the Ajarian Public Prosecutor's Office opened a criminal case against Mr G. for various offences committed in public office. On the basis of those criminal proceedings, the prosecutor requested the Ajarian High Court to confiscate the movable and immovable property of the accused, including the Mazniashvili estate, under Article 37(1) of the Code of Criminal Procedure (“the CCP”, “the confiscation proceedings”). According to the prosecutor's submissions, the Mazniashvili estate measured some 68 square meters and was valued at GEL 50,000 (EUR 21,275). 12. On 10 September 2004 the Ajarian Supreme Court partially allowed the prosecutor's request, ordering the confiscation of some of Mr G.'s property, including the Mazniashvili estate. The prosecutor appealed against that partial confiscation to the Supreme Court of Georgia. 13. On 18 November 2004 the Batumi City Court, in the absence of the respondent Mr G., allowed the applicant's action of 7 June 2004. The court annulled the contract of sale, confirmed the applicant's title to the Mazniashvili estate and ordered the Batumi Land Registry, which formed part of the Ajarian Ministry of Justice, to proceed with the necessary registration formalities. The decision further noted that it would become final ten days after being served on the respondent. There being no appeal within that statutory period, the decision became final on an unspecified date. 14. On 7 December 2004 the applicant, relying on the already binding decision of 18 November 2004, requested the Supreme Court of Georgia to discontinue the confiscation proceedings with respect to the Mazniashvili estate. 15. Either on 27 December 2004 or 26 January 2005 the Batumi Land Registry recorded the applicant's title to the Mazniashvili estate, amounting to some 68 square meters, on the basis of the final decision of 18 November 2004 (the case file contains a copy of that official record which bears two different dates). On 18 February 2005 the Registry issued another certificate, confirming the applicant's title to the real estate. 16. On 17 January 2005 the Supreme Court of Georgia, after having conducted a hearing in the presence of representatives of both the Prosecutor General's Office (“the PGO”) and Mr G., overturned the decision of 10 September 2004 in the part concerning the confiscation of the Mazniashvili estate, and upheld the remainder. The court acknowledged that the estate, valued at GEL 50,000 (EUR 21,275), represented the applicant's property by virtue of the binding decision of 18 November 2004. The Supreme Court instructed the Ajarian High Court to examine the issue of discontinuation of the confiscation proceedings concerning the Mazniashvili estate. 17. On 18 March 2005 the Batumi Land Registry addressed a letter to the Ajarian prosecutor, demanding clarification with respect to the situation of the Mazniashvili estate. The Register appeared to be confused by the fact that the estate represented both the applicant's property by virtue of the binding decision of 18 November 2004 and yet was an object of the pending confiscation proceedings. Furthermore, contrary to what had been confirmed by the record of 27 January 2005 and the certificate of 18 February 2005 (see paragraph 15 above), the Registry informed the prosecutor that the applicant's title to the Mazniashvili estate had not yet been formally recorded. 18. In a letter dated 31 March 2005, the Deputy Minister of Justice confirmed that the applicant was the owner of the Mazniashvili estate on the basis of the final decision of 18 November 2004, adding that the process of registration of his property title had been suspended. 19. On 24 March 2005 the Ajarian prosecutor filed with the Batumi City Court a request to quash the final decision of 18 November 2004 and to reopen the civil case, under Article 422 § 1 (b) of the Code of Civil Procedure (“the CCP”). The prosecutor stated that the confiscation of the Mazniashvili estate, indicated by the Ajarian High Court's decision of 10 September 2004, had already been confirmed by the Supreme Court of Georgia. However, the enforcement of the confiscation was impossible owing to the existence of the conflicting decision of 18 November 2004. The prosecutor complained that the Batumi City Court should have involved him as a third party in the civil case which, moreover, should have been suspended pending the outcome of the confiscation proceedings. 20. On 7 April and 18 June 2005, the applicant submitted written comments in reply to the Ajarian prosecutor's request for quashing. He argued that the prosecution authority, being a party to the confiscation proceedings, had learnt of the decision of 18 November 2004 in the course of the Supreme Court's hearing of 17 January 2005 at the latest. Consequently, the Ajarian prosecutor's request for quashing was belated, as provided by Article 426 §§ 1 and 2 of the CCP. He further noted that the Mazniashvili estate had never been State property and, consequently, the Batumi City Court could not have been expected to join the prosecutor as a third party to the civil case. If the Ajarian prosecutor had acted with minimum diligence, by having consulted, for instance, the Batumi Land Registry prior to the institution of the confiscation proceedings against Mr G. on 25 August 2004, he would have learnt that the Mazniashvili estate had already been attached, by virtue of the injunction of 30 June 2004, in the course of the civil case. The applicant also challenged the prosecutor's misleading assertion that the confiscation of the Mazniashvili estate had been confirmed by the Supreme Court of Georgia. 21. Reiterating the above arguments, the applicant also requested the PGO, on 12 September 2005, to open a criminal case against the Ajarian prosecutor for abuse of power. 22. On 23 September 2005 Judge V. of the Batumi City Court summoned the applicant, who was residing in Belgorod, by telegram to appear on 30 September 2005 as a respondent in the quashing proceedings brought by the Ajarian prosecutor. The applicant telegraphed back on 27 September 2005 to request adjournment of the hearing in view of his health problems. 23. On 17 October 2005 Judge V. summoned the applicant by telegram to appear on 27 October 2005 “as a respondent in the proceedings brought by a notary public of Batumi”. The telegram noted that the claimant's submissions were being dispatched by registered post. 24. On 18 October 2005 the Ajarian Prosecutor's Office replied to the applicant's criminal complaint of 12 September 2005 in the following terms: “As you already know, the Batumi City Court has granted the Ajarian prosecutor's request and reopened the case. Consequently, your allegations of abuse of power by the prosecutor are ill-founded, ... and you have the right to plead before the court as a respondent”. 25. On 25 October 2005 the applicant notified Judge V. by telegram of his inability to travel from the Russian Federation to Georgia for the forthcoming hearing on 27 October 2005 in view of his health problems. He noted that he was sending the supporting medical documentation by post and that the notary public's submissions had not reached him so far. 26. On 1 November 2005 the applicant received the Batumi City Court's dispatch of 17 October 2005 (see paragraph 23 above). He learnt that the notary public who had certified the contract of sale on 8 April 1994 had requested, on 10 October 2004, the quashing of the binding decision of 18 November 2004 under Article 422 § 1 (b) of the CCP. The notary complained that she should have been involved in the civil case as a respondent, in so far as, pursuant to the Notaries Public Act of 3 May 1996, she had been personally responsible for the validity of the contract in question. As to compliance with the statutory time-limit of one month, the notary claimed that she had first learnt of the existence of the decision of 18 November 2004 from a local newspaper, Batumelebi, on 28 September 2005. The relevant article, published on the latter date, had described the details of the confiscation proceedings and the civil case, noting the existence of the conflicting interests of the applicant and of the Ajarian prosecutor over the Mazniashvili estate. 27. On 9 November 2005 Judge V. summoned the applicant by telegram to appear on 14 November 2005 as a respondent “in the proceedings brought by the notary public.” The applicant telegraphed back on the following day, requesting an adjournment of the hearing in view of his state of health. He also informed Judge V. that he was dispatching by post his comments on the notary's request for quashing. As disclosed by those comments, received at the City Court on 8 December 2005, the applicant denounced the notary as lacking the requisite locus standi to call into question the outcome of the terminated civil case. 28. On 25 November 2005 the applicant requested the initiation of disciplinary proceedings against Judge V. He complained that, by summoning him by telegraph only a few days before the scheduled hearings, without giving him an opportunity to obtain knowledge of and comment on the claimant's submissions, the judge had breached the principle of the equality of arms. 29. On 30 November 2005 Judge V. once again requested the applicant to appear at a hearing on 6 December 2005 in the reopening proceedings brought by the notary public. Another request for an adjournment followed from the applicant on 5 December 2005. 30. On 14 March 2006 the applicant received by parcel two decisions of the Batumi City Court dated 30 September and 27 October 2005. As shown by the postmark on the envelope, the parcel had been dispatched by Judge V. on 2 March 2006. 31. In a decision of 27 October 2005, Judge V. ruled that the notary public's request for quashing of 10 October 2005 was well-founded and that the decision of 18 November 2004 ought to be annulled and the civil case reopened under Article 422 § 1 (b) of the CCP. The judge based her decision on the notary's written and oral pleadings only and did not explain the reason for having dispensed with the need for submissions from the applicant. Without giving any additional reasons, the judge endorsed the notary's procedural and substantive arguments, in particular that the request for quashing had been lodged in due time and that the notary should indeed have been involved in the civil case. The operative part of the decision noted that no appeal lay against it. 32. As to the decision of 30 September 2005, it concerned the request for quashing of 24 March 2005 from the Ajarian prosecutor. Judge V. first noted that, despite having been properly summoned to the oral hearing, the applicant had failed to appear and that his explanation in that regard – the reference to health problems – was not substantiated by medical documentation. However, the judge took into account the applicant's written submissions (see paragraph 20 above), and concluded that the prosecutor's request for quashing should be rejected as time-barred. 33. On 24 March 2006 Judge V. summoned the applicant by telegram to appear as a claimant in the reopened civil case. The judge specified that Mr G. and the notary were co-respondents in the case, whilst the Ajarian prosecutor had been admitted as a third party. In a telegram dated 28 March 2006, the applicant requested an adjournment in view of his persistent health problems. He noted that the supporting medical documents as well as his request for the replacement of Judge V. were being dispatched by post. 34. On 19 April 2006 the applicant lodged with the Kutaisi Regional Court an appeal against the decision of 27 October 2005. Referring to the fact that Judge V. had summoned him to the relevant quashing proceedings even after 27 October 2005, the applicant accused her of having forged the decision in question by backdating it. On the same day he also requested the Batumi City Court to send him a copy of the ruling by which the notary and the Ajarian prosecutor had been permitted to participate in the reopened civil case. As disclosed by the case file, no reply was forthcoming from either court. 35. Between February and December 2006, the applicant filed numerous letters with the PGO and the judicial and other authorities, complaining that the quashing of the final decision of 18 November 2004 had violated his property rights. He also requested that Judge V. and the notary be prosecuted for abuse of power or that, at least, the judge be removed from further examination of his civil case. Those letters were either left unanswered or, in so far as the criminal complaints were concerned, rejected by the PGO as ill-founded. 36. In February 2007, the applicant learnt from his sister, who lived in Batumi and had frequent contacts with the Registry of the Batumi City Court, that Judge V. had ruled, on an unknown date, to leave his reopened civil case without examination. On 2 February 2007 he requested the Batumi City Court and the Supreme Court of Georgia to provide him with a copy of that ruling. According to the case file, the courts did not reply. 37. In a letter of 7 February 2007, the Batumi Land Registry informed the applicant that the Mazniashvili estate had been registered as State property on the basis of a writ of enforcement issued by the Ajarian High Court on 10 March 2006. The applicant then requested, on 4 March 2007, additional clarification with respect to that writ, but no reply followed. 38. By a letter of 21 April 2008, the Batumi Land Registry, contrary to the information contained in its previous letter (see the preceding paragraph) informed the applicant's sister that, according to the available records, the Mazniashvili estate had been registered as Mr G.'s property on the basis of the contract of sale. 39. The relevant provisions of the Code concerning the quashing of final and enforceable decisions and the reopening of civil cases, read as follows: “Proceedings terminated by a final judgment (decision) may be reopened only if there are grounds for bringing either a request to render the final judgment null and void (Article 422) or a request to reopen the proceedings in view of newly discovered circumstances (Article 423).” “1. A final and binding judgment (decision) may be quashed at the request of the interested party, if: (a) A judge who participated in the deliberations in the case was barred from doing so by operation of law; (b) One of the parties, or its representative in law, had not been invited to participate in the examination of the case. 2. The request to render a final judgment null and void on the above-mentioned grounds shall not be entertained if the requesting party could have referred to those grounds during the proceedings, before the first instance, appeal or cassation courts.” Pursuant to Article 426 §§ 1 and 2 of the CCP, a request for reopening of proceedings should be lodged within one month after the party concerned learns of the grounds which might either render the final decision null and void or represent newly discovered circumstances within the meaning of Article 421 § 1. That period was not extendable. Article 426 § 3 further specified that, in a situation envisaged by Article 422 § 1 (b), the period of one month started to run following the formal notification of the decision to the party to the proceedings or, if appropriate, its representative in law. Article 429 § 2 of the CCP stated that an appeal lay against a decision dismissing a request for quashing. However, neither that Article nor any other provision in the Code provided for the possibility of appealing against a decision granting such a request. Pursuant to Article 430, the merits of a request for quashing must be examined at an oral hearing. 40. Article 37(1), inserted into the Code of Criminal Procedure on 13 February 2004, stated that, if there was a reasonable suspicion about the origins of property of a person charged with misconduct in public office, a prosecutor was entitled to bring an action for confiscation of that property. 41. Pursuant to sections 1 and 5 of the Notaries Public Act, notaries public formed a public-law institution which was directed by the Ministry of Justice. According to section 3 §§ 1 and 6, a notary public, whilst being an independent professional, exercised State authority. However, the State could not be held liable for any harm caused by a notary's actions. Pursuant to sections 4 § 1 and 32-33, all notaries public were obliged to be members of the Chamber of Notaries, a public-law association, created for the purposes of protecting its members' interests and coordinating their activities, and which had its own legal personality. Section 11 described the system of supervision of the professional activities of individual notaries public by the Minister of Justice, through the Chamber of Notaries.