FIFTH SECTION

DECISION

Application no. 74019/12 Paul ELIAURI and O thers against Georgia

The European Court of Human Rights (Fifth Section), sitting on 22 April 2021 as a Committee composed of:

Ganna Yudkivska, President, Stéphanie Mourou -Vikström, Lado Chanturia , judges , and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 14 November 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . A list of the applicants is set out in the appendix. All applicants were represented before the Court by Mr Grégory Thuan Dit Dieudonne , a lawyer practising in Strasbourg.

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

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

4 . In 1996-97, while performing mandatory military service at the Lilo border guard unit in Tbilisi, the applicants all developed serious radiation lesions due to their exposure, without their knowledge, to a radioactive substance over a relatively long period (between sixty and three hundred days). Subsequently the applicants were provided with free emergency medical treatment for their radiation lesions, including treatment in hospitals in France, Germany and Russia. It was established early on that, in addition to the lesions, the applicants ’ internal organs and systems were affected as a result of their long exposure to the radioactive substance. In subsequent years the applicants developed various health conditions and were classed as disabled with varying degrees of incapacity.

5 . On 31 May 2002 the Tbilisi District Court, finding in favour of the applicants, ruled that the Ministry of Defence, the Department of the State Border Guards, the Ministry of Health and the Ministry of Environmental Protection should jointly cover the applicants ’ anticipated medical expenses. While the amount to be paid to each applicant was individually determined, the overall sum of these amounts totalled 4,549,627 United States dollars (USD). On 26 July 2002 the same court issued a writ of execution in respect of those amounts and the Execution Department of the Ministry of Justice opened the enforcement proceedings.

6 . On 12 March 2003 the Supreme Court of Georgia, upholding the applicants ’ award, slightly modified the lower court ’ s decision and ruled that only the Ministry of Defence and the Department of the State Border Guards could be held liable for the payment of the sums awarded to the applicants. The judgment of 31 May 2002 thus became final and enforceable.

7 . From 2004 to 2009 the State made payments to the applicants in instalments, the overall sum of which totalled USD 1,310,500, while the remainder of the aforementioned award remained outstanding.

8 . As of December 2012, after notice of the current application was given to the Government, the relevant national authorities negotiated with the applicants a schedule of payment for the outstanding amount of USD 3,239,127 and began making payments in accordance with the agreed schedule. On 29 May 2013 the final payment was made to the applicants.

9 . On 20 August 2013, confirming the payment in full of the judgment debt, the applicants informed the Court that they still wished to maintain the present application.

10 . Article 1005 § 1 of the Civil Code provided that damage caused to an individual by either negligence or deliberate misconduct of a public servant had to be compensated for by the State.

11 . Article 24 provided that an interested party could lodge an application with a court to request that an administrative body perform or abstain from performing a certain action. The same provision further stated that such an application would be admissible if the action and/or inaction of the relevant administrative body affected the legal rights and interests of the party concerned.

COMPLAINTS

12 . The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the delay in the enforcement of the judgment debt against the State.

THE LAW

13 . In their reply to the Government ’ s observations, the applicants submitted that the amounts granted by the Supreme Court of Georgia in its judgment of 12 March 2003 were insufficient to cover all their necessary medical expenses. They also complained about the refusal of the Supreme Court to grant a claim that they had made for non-pecuniary damage. With reference to the negotiations concerning the payment schedule conducted with the national authorities between December 2012 and March 2013, they complained about the refusal of the Government to pay them compensation for non-pecuniary damage, to cover their legal costs and expenses, to provide them with lifelong public health insurance and to pay them default interest as well as compensation for inflation-related losses.

14 . In reply, the Government noted that the scope of the application was strictly limited to the delay in the enforcement of the judgment debt as determined by the Supreme Court in its judgment of 12 March 2003. Any new and/or additional pecuniary and non-pecuniary claims that had not been awarded by virtue of the above-mentioned Supreme Court decision fell, in their view, outside the scope of the current case.

15 . The Court notes that the application, as it was communicated to the parties under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, concerned only the delay in the enforcement of the judgment of 12 March 2003 and any pecuniary and non-pecuniary damage emanating therefrom. Any claims rejected by the domestic courts, including allegations concerning the incorrect determination of the relevant compensation amounts, therefore fall outside the scope of the present case (contrast, with regard to adjustment for inflation is concerned, Antipov v. Russia, no. 8336/07, 2 June 2020; Vonogradov v. Russia, no. 50053/06, 2 June 2020, and Nachkebiya v. Russia no. 6351/13, 12 May 2020).

16 . The applicants complained about the delay in the enforcement of the judgment debt against the State. They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the relevant parts of which read as follows:

Article 6 § 1

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

Article 1 of Protocol No. 1

“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.”

17 . The Government argued that the applicants had not used two effective domestic remedies which were available to them concerning the delay in the enforcement of the judgment debt against the State. Firstly, the Government alleged that the applicants had failed to apply to the domestic courts with a request under Article 24 of the Administrative Code of Procedure to order the immediate enforcement of the judgment concerned. In support of their argument, they submitted examples of domestic court decisions in which the courts had ruled against the enforcement authorities, ordering the latter to proceed with the immediate enforcement of court decisions. Secondly, the Government submitted that the applicants could have brought an action for damages under Article 1005 § 1 of the Civil Code of Georgia. To illustrate the effectiveness of the above-mentioned civil remedy, the Government submitted a copy of a judgment awarding compensation for damage sustained as a result of the delayed enforcement of a judgment. They stressed in that connection that the full amount of the debt had indeed been paid to the applicants, albeit with a delay. Accordingly, the only issue that remained to be redressed was the determination of the damage stemming from the delay, and such redress could have been effectively claimed via a compensatory remedy. In support of their argument, the Government referred to relevant domestic practice and to the Court ’ s decisions in the cases of Nazaretian v. Georgia (no. 13909/09 , 7 July 2009), Shavishvili v. Georgia (no. 21519/05, 9 November 2010), and Baghaturia v. Georgia (no. 46365/06, 16 November 2010).

18 . The applicants submitted that the above-mentioned examples of national court decisions produced by the Government were irrelevant to their case as those decisions concerned enforcement disputes concerning private parties. They referred in that connection to the Court ’ s well ‑ established case-law according to which a person who had obtained an enforceable judgment against the State as a result of successful litigation could not be required to resort to additional proceedings, such as enforcement proceedings, in order to have it executed (see, among many other authorities, Arat and Others v. Turkey , nos. 42894/04 and 7 others, § 19, 13 January 2009).

19 . The Court reiterates that the purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)). However, applicants are only required to exhaust domestic remedies which are available in theory and in practice at the relevant time and which are accessible, are capable of providing redress in respect of their complaints and offer reasonable prospects of success (ibid., and see also Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II).

21 . As concerns the civil-law remedy, the Court notes that an action for damages did not constitute a remedy capable of directly remedying the situation complained of by the applicants at the time when they lodged their application, that is to say, before the judicial debt had been fully paid to them (see Dadiani and Machabeli v. Georgia , no. 8252/08, § 32, 12 June 2012). However, with the full payment of the judicial debt on 20 August 2013, the judgment of 12 March 2003 – the non-enforcement of which was the subject of the applicants ’ complaint – was eventually enforced. Given that the continuing violation of which they complained ended on 20 August 2013, the sole issue that remains to be addressed in the present case is that of recognition and redress in the form of compensation for any pecuniary and non-pecuniary damage allegedly caused by the delay in the payment of the judicial debt for the period from 12 March 2003 to 20 August 2013. For that purpose, the Court considers that an action for damages against the State under Article 1005 of the Civil Code was a remedy accessible to the applicants (see, mutatis mutandis , Bouhamla v. France ( dec. ), no. 31798/16, § 38, 25 June 2019; see also Nosov and Others v. Russia , nos. 9117/04 and 10441/04, § 38, 20 February 2014). The availability and adequacy of this remedy, albeit in a slightly different context, has been consistently recognised by the Court in its case-law against the respondent State (see Meladze v. Georgia ( dec. ), no. 30635/09, § 46, ECHR 2 October 2018, with further references therein; see also Baghaturia , Nazaretian , and Shavishvili , all cited above ). In their observations, the Government submitted a copy of a domestic court decision in which the enforcement authorities had been ordered to pay compensation to a private individual for pecuniary damage stemming from a delay in the enforcement of a court decision in his favour. The applicants did not elaborate on their reasons for not availing themselves of a compensatory remedy. They did not argue that the remedy was either inadequate or ineffective or that there existed special circumstances exempting them from using it (see in this connection, among many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 74-75 and 77, 25 March 2014). In such circumstances the Court sees no reason to question the effectiveness of the compensatory remedy in the form of an action for damages against the State under Article 1005 of the Civil Code. It considers that this remedy offered the applicants a reasonable prospect of success in obtaining a finding that the failure to enforce the judgment in a timely manner constituted a fault capable of giving rise to State liability and to a subsequent award of compensation in their favour.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 May 2021 .

             {signature_p_2}

Martina Keller Ganna Yudkivska Deputy Registrar President

Appendix

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Paul ELIAURI

1974French

Paris

2Nodari ADUASHVILI

1977French

Mantes la Jolie

3Zurab BALAMTSARASHVILI

1974Georgian

Tbilisi

4Goderdzi CHAKHUNASHVILI

1976Georgian

Village Salkhino

5Gela GELASHVILI

1974Georgian

Telavi

6Levani GOGIA

1977Georgian

Semaki

7David INDUASHVILI

1978Georgian

Tbilissi

8Nugzar SHARABIDZE

1978Georgian

Tbilissi

9Otar SURMANIDZE

1978Georgian

Village Pirosmani

10Kakhaber TSIKORIDZE

1975Georgian

Kutaissi

11Zurab VARSIMASHVILI

1977Georgian

Dusheti