SECOND SECTION

FINAL DECISION

Application no. 25491/04 by THE MREVLI FO U NDATION against Georgia

The European Court of Human Rights (Second Section), sitting on 5 May 2009 as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Vladimiro Zagrebelsky , Danutė Jočienė , Dragoljub Popović , András Sajó , Nona Tsotsoria , judges, and Sally Dollé , Section Registrar ,

Having regard to the above application lodged on 17 May 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant , a legal entity, was registered as a private foundation by the Georgian Ministry of Justice on 29 August 1997 (“the applicant foundation”). It was represented before the Court by Meri Japaridze, a lawyer practising in Tbilisi . The Georgian Government were represented by their Agent, Mr David Tomadze 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 original set of civil proceedings

Under a lease dated 1 October 1995, the Georgian Railway Department (“the GRD”), a State agency, granted a non-governmental organisation (”the NGO”) the right to use a bridge at Tbilisi railway station for ten years. The lessee having allegedly breached its contractual obligations, the GRD unilaterally terminated the lease on 1 June 1996.

On 1 January 1998 the NGO brought an action against the lessor requesting compensation for the financial loss caused by the premature termination of the contract.

On 10 February 1999 the Gldani-Nadzaladevi District Court in Tbilisi declared the applicant foundation the successor in title of the NGO. Concurrently, Georgian Railways Ltd. , a State company established in the course of the privatisation of the GRD, was involved as a respondent.

After numerous remittals of the case between various courts, the Supreme Court, in a final judgment of 17 October 2000, partly satisfied the action of 1 January 1998 by ordering Georgian Railways Ltd. to pay the applicant foundation damages in the amount of 172,928 Georgian laris (GEL - approximately 75,842 euros (EUR)).

2. The request to reopen

On 1 December 2000 the Ministry of State Property Management (“the Ministry”) requested the Supreme Court to quash the final judgment of 17 October 2000 and reopen the civil proceedings. Relying on Article 422 § 1 (b) of the Code of Civil Procedure (“the CCP”), the Ministry claimed that it should have been involved in those proceedings in so far as the disputed bridge was State property, the alienation of which was its prerogative.

The applicant foundation replied that the Ministry had misread Article 422 § 1 (b) of the CCP. According to its submissions, solely an actual party to a lawsuit who had not been summoned to participate in the examination of the case could rely on the above provision, which was not the case with the Ministry. The applicant foundation further stated that the successive respondents in the original set of civil proceedings – the GRD and Georgian Railways Ltd. – had sufficiently ensured the representation of State interests.

On 24 January 2001 the Supreme Court, holding an oral hearing with the participation of the applicant foundation, the respondent, Georgian Railways Ltd., and the Ministry, quashed the final judgment of 17 October 2000 and reopened the original set of civil proceedings. The court reasoned that Article 422 § 1 (b) of the CCP applied both to an actual party to the proceedings and a titular outsider. The case was remitted to the Gldani ‑ Nadzaladevi Court for re-examination.

As was noted in its operative part, the Supreme Court ’ s decision of 24 January 2001 was final, not being subject to an appeal, and became binding immediately.

3 . The reopened set of civil proceedings

It was only in the course of the reopened proceedings that, on 23 April 2001, the Gldani-Nadzaladevi District Court formally involved the Ministry as a third party with a separate claim. Notably, complaining that it had never authorised such a transaction, the Ministry requested that the lease of 1 October 1995 be declared null and void.

In a judgment of 26 June 2001, the Gldani-Nadzaladevi District Court, sharing the Ministry ’ s arguments, annulled the lease of 1 October 1995 as having been laid unlawfully.

The applicant foundation lodged an appeal, complaining, inter alia , of the quashing and reopening of the case. The appeal was dismissed by the Tbilisi Regional Court on 3 April 2003. The court stated that, first, no appeal lay against the Supreme Court decision of 24 January 2001 and, secondly, it lacked jurisdiction to review the higher court ’ s reasoning.

The applicant foundation then lodged a cassation appeal against the decision of 3 April 2003, reiterating that, under the relevant provisions of the Civil Code, it should be compensated for the loss caused by the premature termination of the lease of 1 October 1995. The applicant foundation argued that the Ministry, the owner of the property in question, and the GRD, the lessor, had been obliged to agree their positions on the impugned lease. If those two agencies had failed to do so, such mismanagement was their own fault and should not be imputable to the applicant foundation. According to the case file, the issue of the quashing of the final judgment of 17 October 2000 was not explicitly raised by the cassator.

In a decision of 4 December 2003, the Supreme Court, having reviewed all the stages of the proceedings, including the circumstances surrounding the request for reopening, dismissed the applicant foundation ’ s cassation appeal and upheld the reasoning of the appellate decision of 3 April 2003.

B. Relevant domestic law

1. The Code of Civil Procedure, as it stood at the material time

Article 421 § 1 – “Types of reopening”

“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).”

Article 422 §§ 1 (a) and (b) and 2 – “Request to render a final judgment ( decision ) null and void ”

“1. A final and binding judgment (decision) may be quashed at the request of the party concerned, if:

(a) A judge who participated in the determination of the case was barred from doing so by law;

(b) One of the parties to the proceedings, or its representative in law, was not summoned to participate in the examination of the case.

2. A 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 them whilst the proceedings were still pending, either before the first-instance, appeal or cassation courts.”

Article 429 § 2, as amended on 9 September 1999, expressly stated that a court decision to dismiss a request for reopening might be appealed. However, neither that Article nor any other provision of the Code provided for the same remedy with respect to a decision granting such a request and quashing a final judgement.

COMPLAINTS

The applicant foundation complain ed under Article 6 § 1 of the Convention about the quashing of the final judgment of 17 October 2000 and the reopening of the proceedings on 24 January 2001. Under Article 1 of Protocol No. 1, it denounced the annulment of the lease of 1 October 1995 and the dismissal of its claim for damages. Relying on Article 13 of the Convention, the applicant foundation complained that the domestic law did not envisage the right to claim damages for an unlawful annulment of a contract.

THE LAW

1. Complaint under Article 6 § 1 of the Convention

The applicant foundation alleged a violation of Article 6 § 1 of the Convention on account of the quashing of the final judgment of 17 October 2000. Article 6 § 1 provides, in so far as relevant, as follows:

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

(a) The parties ’ arguments

The Government stated that the Supreme Court ’ s decision of 24 January 2001 quashing the final judgment of 17 October 2000 was final. The operative part of that decision explicitly mentioning that no appeal lay against it, the applicant foundation should have lodged its application with the Court within the following six months, as required by Article 35 § 1 of the Convention.

The Government further stated that the reopened civil proceedings could not possibly have offered a remedy for the act of quashing, in so far as solely the determination of the disputed civil rights re-emerged during those proceedings. The applicant foundation was reminded by the Tbilisi Regional Court ’ s decision of 3 April 2003 of the procedural impossibility of contesting the decision of 24 January 2001.

Alternatively, if the objection of non-compliance with the six-month rule were not to be accepted, the Government asked the Court to reject the complaint for failure to exhaust domestic remedies, pursuant to Article 35 § 1 of the Convention. In that regard, they referred to the fact that the applicant foundation had not raised the issue of the quashing of the final judgment and the reopening of the proceedings before the Supreme Court in the course of the reopened proceedings.

Finally, the Government stated that, in the event that the Court declared the application admissible, they wished to submit additional arguments on the merits.

In reply to the Government ’ s objection of non-compliance with the six ‑ month rule, the applicant foundation submitted that, whilst the quashing of the final judgment was certainly unfair, the reopened proceedings provided a relevant remedy, as their outcome might have been favourable. Had the reopened proceedings yielded the same result as the quashed judgment of 17 October 2000, there would have been no need for it to apply to the Court. In the words of the foundation ’ s representative, “the reopening of the case, as such, was not a violation [...]”, since it was not a final determination of the civil claim in question. The applicant foundation did not apply to the Court pending the reopened proceedings for fear of having its application rejected for non-exhaustion of domestic remedies.

In the part of its observations addressing the merits of the complaint under Article 6 § 1 of the Convention, the applicant foundation reiterated that the decision of 24 January 2001 on the quashing of the final judgment of 17 October 2000 and the reopening of the proceedings had been unlawful and arbitrary. Notably, as the Ministry had never been an actual party to the lawsuit, its reliance on Article 422 § 1 (a) of the Code of Civil Procedure should not have been accepted.

In their final comments the Government argued that, since the alleged breach of the principle of legal certainty was at the core of the present application, the applicant foundation had lost its victim status by stating that “the reopening of the case, as such, was not a violation”.

(b) The Court ’ s assessment

The Court reiterates that Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which emphasises the rule of law as part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia , that where the courts have finally determined an issue their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61 , ECHR 1999 ‑ VII ). The principle of legal certainty does not allow a party to seek the review of a final and binding judgment merely for the purpose of a rehearing and a fresh determination of the case. The quashing of a final judgment and the reopening of proceedings may only be used to correct miscarriages of justice. The review cannot be treated as an “appeal in disguise”, and the mere possibility that there may be different opinions on the subject is not a ground for a re-examination (see Pravednaya v. Russia , no. 69529/01, § 25 , 18 November 2004 ; Sukhobokov v. Russia , no. 75470/01, §§ 25 and 26 , 13 April 2006 ) .

In the present case, the Court notes that at the request of the Ministry of State Property Management, which had not been a party to the proceedings, the judgement of 17 October 2000 was quashed on 24 January 2001, more than three months after it had entered into force.

Following the Court ’ s case-law, the quashing of a final judgment is an instantaneous act which does not create a continuing situation, even if it entails the reopening of the proceedings, as in the instant case (see Khanyan v. Armenia (dec.), no. 19065/05, 5 July 2007; Gargali v. Bulgaria (dec.) , no. 67670/01, 5 June 2006; Nosov v. Russia (dec.), no. 30877/02, 20 October 2005; Sardin v. Russia (dec.), no. 69582/01, 12 February 2004; Stanca v. Romania (dec.), no. 59028/00, 27 April 2004; Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004). Consequently, it was the Supreme Court ’ s decision of 24 January 2001 which allegedly breached the applicant foundation ’ s rights under Article 6 § 1 of the Convention, without creating a continuing violation. Pursuant to Article 429 § 2 of the Code of Civil Procedure, no appeal lay against that decision to quash. The applicant foundation was, moreover, reminded of the absence of any further remedy by the Tbilisi Regional Court in its judgement of 3 April 2003.

The Court has constantly held that, where no effective remedy exists against a particular act which is alleged to be in breach of the Convention, the date when that act takes place is taken to be “final” for the purposes of the six-month rule laid down in Article 35 § 1 of the Convention (see Önder v. Turkey ( dec. ), no. 39813/98, 10 July 2001; Panjikidze and O thers v. Georgia (dec), no. 30323/02, 30 June 2006). In the present case, even if the original judgment of 17 October 2000 had been reinstated in the course of the reopened proceedings, this would not have remedied the alleged breach of the principle of legal certainty, given the above-mentioned instantaneous nature of the violation resulting from the act of quashing.

Consequently, the Court considers that, in the particular circumstances of the present case, the impugned decision of 24 January 2001 triggered the start of the six-month time-limit. As the application was introduced on 17 May 2004, the applicant foundation ’ s complaint under Article 6 § 1 of the Convention is clearly belated and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. Complaint under Article 1 of Protocol No. 1

The applicant foundation complained under Article 1 of Protocol No. 1 that its property rights had been breached in the course of the dispute over the lease agreement. This provision reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

(a) The parties ’ arguments

In their observations, the Government explained, with reference to the relevant domestic law, why the disputed lease agreement had been defective from its very origin. The domestic courts were thus correct in their decision to annul that defective contract.

The Government also submitted that the complaint under Article 1 of Protocol No. 1 was not imputable to the State, in so far as the dispute over the lease was of a private nature; the State had simply provided a forum for its determination through the judicial system.

The applicant foundation replied that the State had interfered with its property rights on three occasions. Firstly, when the relevant State agency laid the defective lease, secondly, when the GRD prematurely terminated that contract, and, thirdly, when the Ministry ’ s arbitrary involvement in the dispute resulted in the quashing of the favourable judgment of the Supreme Court.

(b) The Court ’ s assessment

Even assuming that the complaints about the origin and termination of the lease contract fall within the protection of Article 1 of Protocol No. 1, they concern events which took place on 1 October 1995 and 1 June 1996 respectively.

The above-mentioned Protocol having entered into force with respect to Georgia on 7 June 2002, these complaints are incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

As to the complaint concerning the arbitrary involvement of the Ministry which resulted in the quashing of the final judgment of 17 October 2000 and the reopening of the civil proceedings, the Court observes that the above-mentioned judgment provided the applicant foundation with an “enforceable claim” which constituted a “possession” within the meaning of Article 1 of Protocol 1 (see, among other authorities, Burdov v. Russia , no. 59498/00, § 40, ECHR 2002-III). It further observes that quashing such a judgment after it has become final constitutes an interference with the right to the peaceful enjoyment of the possessions of the successful party (see Brumărescu , cited above , § 74; Ryabykh v. Russia , no. 52854/99, § 61 , ECHR 2003 ‑ IX ).

However, having due regard to the particular circumstances of the present case, the Court considers that there was no effective remedy against the instantaneous act of quashing on 24 January 2001 which constituted the arguable violation. It follows that this complaint is also incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3 . C omplaint under Article 13 of the Convention

The applicant foundation claimed under Article 13 of the Convention that the domestic law did not allow for the possibility of bringing an action for damages for the unlawful annulment of a contract.

However, having due regard to the circumstances of the case which show that the applicant foundation did avail itself of an effective civil remedy – the Civil Code specifically regulating contractual relationships – this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible .

Sally Dollé Françoise Tulkens Registrar President