SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46365/06 by Tenguiz BAGHATURIA against Georgia

The European Court of Human Rights ( Second Section), sitting on 16 November 2010 as a Chamber composed of:

Ireneu Cabral Barreto , President, Danutė Jočienė , Dragoljub Popović , András Sajó , Nona Tsotsoria , Işıl Karakaş , Kristina Pardalos , judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 28 September 2006,

Having regard to the Court ’ s decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),

Having regard to the parties ’ observations,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Teng iz Baghaturia , is a Georgian national who was born in 1953 and lives in Tbilisi . He was represented before the Court by Ms Sophio Japaridze , 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.

A. The circumstances of the case

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

1. The background

The applicant was a member of a private housing cooperative (“the cooperative”). Under an agreement of 30 May 1999, the cooperative undertook to deliver to the applicant, in exchange for a monetary contribution, a refurbished apartment of 200 square metres on the first floor of a block of flats which was to be constructed in the centre of Tbilisi .

On 12 December 2003 the construction of the block was terminated, but the cooperative refused to fulfil its contractual obligation vis-à-vis the applicant, excluding him from the membership. The applicant then sued the cooperative, claiming the property title to a flat corresponding to the conditions stipulated in the agreement of 30 May 1999 (“the disputed flat”). He also sought an injunction barring the cooperative from registering the flats in the newly constructed block, pending the resolution of his dispute.

2. The injunction proceedings

In a n interlocutory decision of 16 December 2003 , the Vake-Saburtalo District Court in Tbilisi allowed the applicant ’ s request for an injunction, ordering the Land Registry to attach all the flats in the block, pending the final determination of the dispute. However, that decision was overturned, on the basis of the cooperative ’ s appeal, by the same District Court on 17 September 2004. The attachment record was consequently deleted from the Land Registry, and the flats in the block were immediately distributed, with property rights, among the members of the cooperative.

The applicant then appealed against the decision of 17 September 2004, and on 26 November 2004 the Tbilisi City Court delivered another interlocutory decision, confirming the initial attachment order of 16 December 2003. The decision of 26 November 2004 became binding.

On 16 February 2005 the applicant brought a court action against the competent bailiffs from the Tbilisi enforcement office and the Land Registry, requesting those authorities to enforce the interlocutory decision of 26 November 2004 and to pay him damages for the delay in its enforcement (“the action of 16 February 2005”).

Initially, the Didube-Chughureti District Court on 8 April 2005 dismissed the action of 16 February 2005 as manifestly ill-founded. However, the applicant appealed, explaining that the essence of his claim was to restore the situation which had existed prior to the lifting of the attachment order on 17 September 2004. During the appellate proceedings, the applicant further specified that he aimed at the annulment of those records in the Land Registry which had confirmed the distribution of the flats between the cooperative members on the first floor of the block. In addition, the applicant dropped his claim for damages.

On 5 December 2005 the Tbilisi Court of Appeal allowed the applicant ’ s appeal against the decision of 8 April 2005, ordering the Land Registry and the bailiffs to annul the cooperative members ’ property titles to the flats located on the first floor of the block. In its decision, the appellate court duly noted that the applicant had withdrawn his claim for damages.

As neither the applicant nor the respondent authorities lodged a cassation appeal against the decision of 5 December 2005, it became binding and, as disclosed by the case file, was later enforced by the authorities.

3. The proceedings on the merits of the applicant ’ s dispute

In a judgment of 12 February 2004, the Vake-Saburtalo District Court allowed the applicant ’ s civil action on the merits, ordering the cooperative to transfer the disputed flat to the applicant ’ s ownership.

The judgment of 12 February 2004 was fully upheld by the Tbilisi Regional Court and the Supreme Court of Georgia on 4 November 2004 and 5 May 2005 respectively, becoming binding on the latter date.

On 10 June 2005 the Tbilisi City Court issued to the Tbilisi enforcement office a writ for the enforcement of the judgment of 12 February 2004.

4. The enforcement proceedings

On 21 June 2005 the bailiff from the Tbilisi enforcement office, who became in charge of the applicant ’ s case, proposed to the cooperative to abide voluntarily by the judgment of 12 February 2004. The President of the cooperative, Mr G., replied, on the following day, that all the flats on the first floor of the block had already been alienated to third parties.

On 7 July 2005 the bailiff again requested the cooperative to abide by the judgment of 12 February 2004, on pain of the initiation of criminal proceedings against Mr G. under Article 381 of the Criminal Code. The reiterated proposal was left unanswered by the debtor, and on 7 August 2005 the bailiff transmitted the case to an investigative unit of the Ministry of Justice, the agency in charge of enforcement proceedings, for more drastic measures. Consequently, on 23 August 2005 a criminal case was opened against Mr G. for the obstruction of the enforcement.

On 19 July 2006 the applicant complained to the Enforcement Department of the Ministry of Justice (“the Enforcement Department”), about the bailiff ’ s failure to recover the judgment debt of 12 February 2004. The applicant noted that, after the records of the third parties ’ property titles to the relevant flats had been removed from the Land Registry, there was no impediment to the transfer of the disputed flat to his ownership.

In a letter of 7 August 2006, the Enforcement Department informed the applicant of the measures which had been undertaken to compel the cooperative to abide by the judgment of 12 February 2004. The authority also invited the applicant, in the light of the difficulties associated with the transfer of the disputed flat, to consider the possibility of an adjustment in the modalities of the enforcement, as envisaged by the relevant enforcement legislation. That proposal was left unanswered by the applicant.

Subsequently, an extensive exchange of correspondence, bearing on the method and various factual details of the possible transfer of the disputed flat to the applicant, took place between the bailiff and Mr G. However, those negotiations yielded no result, and on 2 August 2007 the Tbilisi City Court ordered, within the framework of the criminal proceedings, Mr G. ’ s dismissal from the post of President of the cooperative.

On 22 August 2007 the bailiff requested all the members of the cooperative to reach an agreement on the transfer of the disputed flat to the applicant, on pain of the initiation of criminal proceedings under Article 381 of the Criminal Code against each of them.

On 19 October 2007, brokered by the bailiff, Mr G. made a friendly settlement proposal to the applicant. Notably, the former President of the cooperative expressed his readiness to cede his own apartment free of charge to the applicant, in exchange for the latter ’ s waiver of any further claims over the disputed flat. The applicant did not accept that proposal.

According to the case file, the judgment of 12 February 2004 has not been enforced to date.

B. Relevant domestic law

The non-enforcement of a binding judgment or the obstruction of its enforcement by, inter alia , executives of a corporation or other organisation was a criminally liable offence, prescribed by Article 381 of the Criminal Code.

Pursuant t o section 18 of the Enforcement Proceedings Act of 16 April 1999 , an appeal against any procedural decision, action or omission of an agent of the enforcement authority (bailiff) lay to a court.

Pursuant to Articles 207-209 of the General Administrative Code, the State could be sued for the harm done by an action or omission of any public servant. In such proceedings, the relevant provisions of the Civil Code could be applied, if necessary.

Article 1005 § 1 of the Civil Code stated that damage done to an individual by either negligent or deliberate misconduct of a public servant should be compensated by the State.

COMPLAINTS

Relying on Articl es 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the enforcement authority ’ s failure to enforce the binding judgment of 12 February 2004. He also complained, Article 8 of the Convention, that his lasting inability to enter the disputed flat breached his right to respect for home.

THE LAW

1. As to the alleged inefficiency of the enforcement proceedings

The applicant complained about the ineffectiveness of the enforcement proceedings under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions...”

(a) The parties ’ arguments

The Government stated, amongst other arguments, that the applicant ’ s complaint about the non-enforcement of the judgment of 12 February 2004 was incompatible ratione materiae with the invoked provisions of the Convention, in so far as the private debtor ’ s obstinate refusal to discharge the judgment debt, despite the enforcement authority ’ s repeated efforts in that respect, cannot be held imputable to the State (see Shestakov v. Russia ( dec .), no. 48757/99, 18 June 2002). If, however, the applicant considered that the enforcement authority ’ s measures were ineffective, he could have lodged a civil claim with a court to challenge that authority ’ s inactivity and seek compensation for the consequent damage.

The applicant replied that the Government ’ s reference to the case of Shestakov (see the decision cited above) was inappropriate, since the inefficient conduct of the relevant bailiff from the Tbilisi enforcement office, as well as the lack of an adequate coordination of that conduct by the Enforcement Department, was the main reason for his lasting inability to recover the judgment debt. Referring to the relevant factual circumstances of the case, he submitted that the bailiff had made a number of important omissions in the administration of the enforcement proceedings. Lastly, pointing to his court action of 16 February 2005, he claimed to have exhausted the civil remedy suggested by the Government.

(b) The Court ’ s assessment

The Court recalls that where a judgment debt is against a private person, and the main alleged cause of the non-enforcement is the bailiffs ’ conduct, it is appropriate to bring proceedings against those bailiffs to give the State a chance to put matters right internally (see, for example, Nazaretian v. Georgia ( dec .), no. 13909/06 , 7 July 2009; Samoylenko and Polonska v. Ukraine , no. 6566/05, § 25, 18 December 2008; Tishkevich v. Russia , no. 2202/05, § 17, 4 December 2008).

The Court notes that, as acknowledged by the applicant, the alleged inefficiency of the enforcement proceedings directed against the cooperative was imputable to the conduct of the enforcement authority in general. However, the applicant never attempted to hold that authority civilly liable for that allegedly inefficient conduct, which remedy was clearly available to him under section 18 of the Enforcement Act and Articles 207-209 of the General Administrative Code, read in conjunction Article 1005 § 1 of the Civil Code (see Nazaretian , the decision cited above). Thus, he could have requested redress for the damage done by the alleged omissions of the bailiff, which had impeded the timely recovery of the judgment debt from the cooperative. As to the applicant ’ s reference to his court action of 16 February 2005, it is totally irrelevant in this respect, given that the subject matter of that particular action was the implementation of the injunction – the temporary attachment of the relevant flats – and not the enforcement of the final judgment of 12 February 2004 as such, which consisted in the transfer of the disputed flat to the applicant ’ s ownership. Moreover, if the applicant was able to sue, and with success, the enforcement authority for the non-implementation of the temporary injunction, it becomes even more difficult to understand why he never tried to do so with respect to the inability to recover the judgment debt as well.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. As to the remainder of the application

The Court notes that the applicant has never lived in the disputed flat which, consequently, cannot constitute his “home” within the meaning of Article 8 § 1 of the Convention (see, for instance, Zehentner v. Austria , no. 20082/02 , § § 52-53 , ECHR 2009 ‑ ...; McCann v. the United Kingdom , no. 19009/04, § 46, 13 May 2008).

It follows that the applicant ’ s complaint under Article 8 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Irene u Cabral Barreto Registrar President