FOURTH SECTION

DECISION

Application no . 19312/07 Akaki TCHAGHIASHVILI against Georgia

The European Court of Human Rights (Fourth Section), sitting on 2 September 2014 as a Chamber composed of:

Ineta Ziemele, President, George Nicolaou, Ledi Bianku, Nona Tsotsoria, Paul Mahoney, Krzysztof Wojtyczek, Faris Vehabović, judges,

and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 30 March 2007,

Having regard to the parties ’ observations on the admissibility and merits of the case,

Having regard to the declaration submitted by the respondent Government on 26 March 2014 requesting the Court to strike the application out of the list of cases and the absence of the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Akaki Tchaghiashvili, is a Georgian national, who was born in 1962 and lives in Tbilisi. He was represented before the Court by Ms L. Mukhashavria, a lawyer practising in Tbilisi.

2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 18 June 1989 the applicant, an engineering student who was also employed at the railway factory in Tbilisi, attempted to board a train in Zestafoni, Georgia. In an attempt to prevent him from boarding, the conductor kicked, punched and pushed him away. As a result, the applicant fell under the train, which had gathered speed. Both his legs were amputated at ankle level, and as a result he had to give up his studies and his job. The train in question belonged to South Caucasus Railways, a Soviet State entity.

5. On 6 October 1989 the competent authorities classified the applicant as having a disability of the first degree with complete loss of autonomy. By a judgment of 17 November 1989, the Zestafoni District Court sentenced the conductor to a prison term of one year, suspended for two years.

6. In April 2003 the applicant wrote to Georgian Railways, a State entity, requesting that it pay him a monthly living allowance and cover the costs of his nurse, bandages, modern prostheses to be replaced every two years, physiotherapy and an operation.

7. On 8 May 2003 the managing director of the railway company informed the applicant that his request had been examined, but had unfortunately been rejected as ill-founded.

8. On 4 July 2003 the applicant brought legal proceedings against Georgian Railways. On 30 October 2003 a medical expert commissioned by the Didube-Chugh u reti District Court, diagnosed the applicant with osteophyte (bone growth) and ulcerated lesions on the stump of the right leg. The expert concluded that the applicant ’ s condition required surgery with a view to amputating the bone growth and that he also needed modern prostheses, which should be replaced every two years. He emphasised that, given the applicant ’ s condition, he needed help from a nurse, special medicine, including balms to treat the stumps of his limbs, bandages, specialised massages and physiotherapy. The expert considered that the applicant needed a wheelchair for rehabilitation purposes.

9. In the light of that expert report, the applicant filed with the court a supplementary memorial requesting that Georgian Railways (hereafter “the defendant company”) be ordered to pay him, retroactively from April 2000, a monthly living allowance of around 45 euros (EUR), EUR 400 for physiotherapy, EUR 1,060 every two years for the cost of replacing his prostheses, EUR 172 a month plus a fixed sum payment of EUR 815 a year for other medical treatment deemed necessary by the expert and EUR 1,270 for the cost of the re-amputation. In support of the claims, he submitted estimates and other financial documents.

10. By a judgment of 22 January 2004, the Didube-Chughureti District Court, after having conducted an oral hearing, ordered the defendant company to pay the applicant ’ s claims as of 4 July 2003, when the civil action had been lodged. It found that the request for retroactive payment of the various sums claimed had become time-barred, as it had been lodged outside the three-year time-limit (Article 75 of the Soviet Civil Code).

11. By a judgment of 7 May 2004, the Tbilisi Regional Court upheld, after having conducted an oral hearing, the judgment of the first-instance court.

12. Ruling on an appeal lodged by the defendant company, on 28 October 2004 the Supreme Court of Georgia quashed the Regional Court ’ s judgment on the ground that it was legally ill-founded and based on a misinterpretation of the provisions of the Soviet Civil Code. It remitted the case for a fresh examination, instructing the Regional Court to first establish the facts of the case and then examine the question of the time-limit for bringing the action.

13. The defendant company then argued before the Tbilisi Regional Court that the action had become time-barred in its entirety, as the applicant had not lodged a complaint with the courts within the three-year time-limit established by Article 75 of the Soviet Civil Code. The applicant replied that his action had not become time-barred, given that in his case the compensation for damage constituted an “obligation to be honoured periodically” within the meaning of Article 129 § 2 of the new Civil Code. In his view, the three-year time-limit had started running from the date on which he had written to the defendant company and from the date on which the medical expert had concluded, in the light of the deterioration of his health, that he needed a range of medical treatment, including the assistance of a nurse.

14. After an additional series of remittal of the case between the appellate and cassation levels of jurisdiction, on 28 April 2006 the Tbilisi Regional Court quashed the first-instance judgment and rejected the applicant ’ s action in its entirety as having been lodged outside the limitation period. It held that the applicant had become aware of his right to claim various types of compensation at the moment his legs had been amputated and that it was from that date that the three-year time-limit had begun to run, in accordance with Article 130 of the new Civil Code. However, the applicant had brought his action outside that time-limit, in contravention of the requirements of the Soviet Civil Code and Article 1008 of the new Civil Code. The Regional Court rejected the applicant ’ s argument regarding the application of Article 129 § 2 of the new Civil Code to the case, on the ground that the liability in question was criminal rather than contractual. In any case, in the Regional Court ’ s view, the periodicity of the claim was immaterial, as the general obligation of the defendant to compensate the applicant had not been established by a court within the three ‑ year limitation period established by law.

15. On 11 October 2006, the Supreme Court, without indicating any specific circumstances of the case, dismissed an appeal on points of law lodged by the applicant on the ground that it did not comply with the conditions laid down in Article 391 §§ 2 and 5 of the Code of Civil Procedure.

B. Relevant domestic law

1. New Civil Code

16. The relevant provisions of the new Civil Code, which entered into force on 25 November 1997, read as follows:

Article 129 §§ 1 and 2

“The limitation period with respect to contractual obligations is three years ...

The limitation period for claims arising from obligations to be honoured periodically is three years.”

Article 130

“The limitation period starts running from the time the claim arises, that is, the date on which the person became aware, or should have become aware, of the violation of his right.”

Article 1008

“The limitation period for claims for compensation arising from criminal liability shall be three years. This period starts to run from the time the victim becomes aware, or should have become aware, of the identity of the person liable to provide compensation.”

2. Code of Civil Procedure

17. The relevant provisions of the Code read as follows:

Article 391 §§ 2 and 5 (as amended on 23 June 2005, in force as of 1 November 2005)

“An appeal on points of law can be lodged in economic disputes if the amount at stake is over 50,000 laris [approximately EUR 22,700]

In other economic and non-economic disputes, an appeal on points of law is admissible if:

a) The case is significant for the development of the law and the consistency of case-law;

b) The appeal judgment diverges from the case-law of the Supreme Court in similar cases;

c) The examination of the case on appeal discloses significant procedural violations capable of influencing the outcome of the proceedings;

d) The contested appeal judgment is a second default judgment ... .”

3. The Disabled Persons Act of 13 June 1995

18. Under section 3(1) of the Act, the State endeavours to create an environment conducive to the development of disabled people and the realisation of their creative and entrepreneurial abilities. Section 13 provides that the State shall contribute to the setting up and development of a health care system for the disabled.

COMPLAINTS

19. The applicant complained that his inability to obtain personal injury damages from Georgian Railways, a State-owned company, coupled with the absence of any other type of assistance by the State for his disability, was in breach of the State ’ s positive obligations under Article 8 § 1 of the Convention.

20. Relying on Article 6 § 1 of the Convention, the applicant complained about the length and the outcome of the domestic proceedings, challenging the domestic courts ’ reading of the relevant legal provisions. He also complained, under the same provision, that the rejection on 11 October 2006 of his appeal on points of law without an examination on the merits had unjustifiably limited his right to have access to the Supreme Court of Georgia. Lastly, the applicant complained that the unsuccessful outcome of the civil proceedings had constituted a violation of his rights under Article 1 of Protocol No. 1.

THE LAW

A. The complaint under Article 8 § 1 of the Convention

21. On 6 September 2007 and 26 March 2013 the Court, respectively, first communicated the application to the Government and then, after having reviewed the received observations, invited the parties to submit additional legal arguments on the applicant ’ s complaint under Article 8 of the Convention (Rule 54 § 2 (c) of the Rules of Court) and indicated that the friendly settlement procedure be set in motion through the offices of the Registrar.

22. Subsequently, and after the failure of attempts to reach a friendly settlement, by a letter of 26 March 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

23. The declaration provided as follows:

“By way of unilateral declaration the Government of Georgia acknowledge that the State has failed to comply with its positive obligations under Article 8 of the Convention due to the failure to facilitate the mobility and quality of life of the disabled applicant.

Considering that Mr Tchaghiashvili currently receives a monthly social benefit of 100 Georgian Laris (some 40 euros);

Taking into account that the applicant is still entitled to request the replacement of the lower limb prosthesis at the expense of the State, despite the fact that in 2012 his relative postponed this procedure which had been granted by the Minister of Labour, Health and Social Care of Georgia;

Bearing in mind that Mr Tchaghiashvili is also involved in the State-funded insurance program allowing him to receive planned or urgent out-patient and in-patient services within the established limits;

The Government declare that they are prepared to pay to Mr Akaki Tchaghiashvili 8,000 (eight thousand) Euros to cover any pecuniary and non-pecuniary damages as well as costs and expenses. This amount will be converted into the respondent State ’ s national currency at the rate applicable on the date of payment and be free of any taxes that might be applicable to the applicant. It will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The payment shall constitute the final resolution of the present case. ”

24. By a letter of 4 April 2014, the Court transmitted the Government ’ s unilateral declaration to the applicant, inviting him to comment in reply by 5 May 2014. It was duly served on the applicant ’ s representative ’ s address on 10 April 2014. However, the applicant never replied.

25. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

26. It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

27. To this end, the Court examined carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

28. The Court has established in a number of cases its practice concerning complaints about the scope and extent of the respondent State ’ s positive obligations under Article 8 § 1 of the Convention with respect to people with physical disabilities (compare, in particular, with Botta v. Italy , 24 February 1998, § 33-35, Reports of Judgments and Decisions 1998 ‑ I; Zehnalová and Zehnal v. the Czech Republic ((dec.), no. 38621/97, ECHR 2002 V; and also see Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005 ‑ I; and also Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003).

29. Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is fully consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).

30. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine ).

3 1 . Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the part of the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

B. The remainder of the application

3 2 . The applicant made several complaints under Article 6 § 1 of the Convention with respect to the domestic court proceedings (see paragraph 20 above). This provision reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

3 3 . In reply to the applicant ’ s complaint that he did not have access to the Supreme Court of Georgia, the Government submitted that it was manifestly ill-founded. Thus, the fact that his appeal on points of law was rejected as inadmissible when his case had already been examined on the merits at several levels of jurisdiction, including by the Supreme Court itself, could not amount to the denial of judicial access within the meaning of Article 6 § 1 of the Convention. The applicant disagreed, insisting that the rejection of his appeal on points of law as inadmissible undermined the fairness of the domestic proceedings taken as a whole.

3 4 . However, the Court, in the light of its extensive similar case-law on the matter, considers that the mere fact that the applicant ’ s appeal on points of law was declared inadmissible on the ground that it lacked significant pecuniary and/or legal interest cannot be considered, in a situation where he had had the benefit of fully adversarial proceedings on the merits before the first instance and appellate courts, either as an unreasonable limitation of the right to have access to court or, more generally, as a lack of due process under Article 6 § 1 of the Convention ( compare, for instance, with Nersesyan v. Armenia (dec.), no. 15371/07, §§ 21-25, 19 January 2010; Venema and Others v. the Netherlands (dec.), no. 35731/97, 29 January 2002; and also Berger v. France , no. 48221/99, § 30-39, ECHR 2002 ‑ X (extracts)) . Nor does the limited reasoning given by the Supreme Court in its decision of 11 October 2006 for the rejection of the applicant ’ s appeal raise an arguable issue. Indeed, the Court has consistently ruled on various different occasions that, where a preliminary procedure for the examination and admission of an appeal on points of law is concerned, a domestic appellate court cannot be obliged under Article 6 § 1 of the Convention to give extensive reasoning when it simply applies a specific legal provision to dismiss an appeal as having no prospects of success (see, for instance, Nersesyan , cited above, § 23 and 24; Burg and Others v. France (dec.), no. 34763/02, ECHR 2003-II; Gorou v. Greece (no. 2) [GC], no. 12686/03, § 41, 20 March 2009; Stepenska v. Ukraine (dec.), no. 24079/02, 12 June 2006; Glender v. Sweden (dec.), no. 28070/03, 6 September 2005; Jaczkó v. Hungary , no. 40109/03, § 29, 18 July 2006; Marini v. Albania , no. 3738/02, § 106, ECHR 2007 ‑ XIV (extracts); Kukkonen v. Finland (no. 2) , no. 47628/06, § 24, 13 January 2009; and Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009).

3 5 . As to the applicant ’ s complaints under Article 6 § 1 of the Convention, they concern the outcome and length of the domestic proceedings. The Court reiterates that it is not its task to act as an appeal court of “ fourth instance ” by calling into question the outcome of the domestic proceedings. The domestic courts were best placed to assess the relevance of evidence to the issues in the case and to interpret and apply the rules of substantive and procedural law (see, among many other authorities, FC Mretebi v. Georgia , no. 38736/04, § 31, 31 July 2007), and the relevant domestic decisions do not disclose any manifestly arbitrary reasoning (cf., a contrario , Donadze v. Georgia , no. 74644/01, § 32, 7 March 2006). Further, given that the domestic proceedings only lasted some three years, which involved the repeated examination of the case at several levels of jurisdiction, the applicant ’ s complaint about their length is similarly without any merit.

3 6 . It follows that all of the applicant ’ s complaints under Article 6 § 1 of the Convention are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3 7 . Lastly, the Court notes that the applicant ’ s complaint under Article 1 of Protocol No. 1 about the rejection of his claim for damages by the domestic courts is manifestly ill-founded as well (see, among many others, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007 I), and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

             Françoise Elens-Passos Ineta Ziemele Registrar President