FOURTH SECTION

DECISION

Application no . 52240/07 Rolf SCHRADE against Georgia

The European Court of Human Rights (Fourth Section), sitting o n 26 April 2016 as a Committee composed of:

Vincent A. De Gaetano, President, Egidijus Kūris, Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 9 October 2007,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Rolf Schrade, is a German national, who was born in 1934 and lives in Berlin-Mahlow. He was represented before the Court by Mr H. von Sachsen-Altenburg and Mr I. Kandashvili, lawyers practising in Tbilisi.

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

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

A. Background

4. The applicant is a photographer. Photographs taken by him in Georgia since 1959 constitute valuable documentary evidence of a great number of Georgian historical monuments. Among his most well-known photographs, there was one taken in 1986 in Svaneti, entitled “The Village of Ushguli”. It featured several ancient Svani family towers and a tenth-century church, and the background is a high mountain landscape (“the photograph of Ushguli village”). The original photograph was part of the applicant ’ s private archives.

5. In December 2002 the applicant authorised a Georgian bank, MBG (Procredit Bank), to use but only once the photograph of Ushguli village in their advertising calendar. In accordance with the contract between the parties, the calendar was published in January 2003 and the photograph was reproduced in its entirety and without alteration, as the applicant had authorised.

6. In February 2003 a Georgian insurance company, Salbi (“Salbi”), displayed a billboard measuring over 100 sq. m. on the front of its offices in the centre of Tbilisi, on which the photograph of Ushguli village featured, without the mountain landscape. The applicant ’ s lawyers contacted Salbi in November 2004 to complain that the applicant ’ s rights had been infringed and to propose a friendly settlement. Salbi turned down the proposal, claiming that the billboard had been created by a design company called Griphi (“Griphi”).

7. The directors of Griphi confirmed to the applicant ’ s lawyers that they had created the billboard for Salbi, using the photograph of Ushguli village. Griphi explained that they had had access to the master copy of the photograph when they published the calendar for MBG Bank. The director told the applicant ’ s lawyer that everyone “could scan” a photograph. The friendly settlement proposed by the applicant was thus rejected.

B. Criminal proceedings

8. In December 2004 the applicant filed a criminal complaint with the Prosecutor General ’ s Office, requesting to establish the criminal responsibility of the directors of Griphi and Salbi for the breach of his intellectual property rights.

9. From February 2005 to August 2006 the applicant ’ s criminal complaint was circulated between several law-enforcement agencies – the Ministry of the Interior, the Financial Police and then back again to the prosecutorial authority – all of which held separate inquiries into the activities of the two companies in question.

10. Finally, by a resolution of 1 December 2006, the Prosecutor ’ s General Office refused to initiate criminal proceedings. Notably, after having analysed the companies ’ impugned activities in the light of the relevant provisions of the Criminal Code, the authority concluded that those activities could not qualify as a criminal offence. The prosecutor considered that even if the directors of Griphi or Salbi had committed an infringement of copyright, those acts could only be classified as civil wrongdoings, with the dispute thus relating to the realm of civil law.

11. The applicant appealed against the prosecutorial resolution to a court on 11 June 2007. By a decision of 6 July 2007, the Tbilisi City Court rejected the applicant ’ s appeal as ill-founded. That decision was confirmed, at final instance, by the Tbilisi Court of Appeals on 13 August 2007.

C. Civil proceedings

1. As the proceedings stood prior to the communication of the case on 12 November 2008

12. In parallel with the above-mentioned criminal proceedings, on 31 December 2004 the applicant sued Salbi for unauthorised reproduction and using of his photograph of Ushguli village, claiming pecuniary and non-pecuniary damages and reimbursement of legal costs and expenses in the total amount of 77,512 Euros (EUR).

13. On 23 May 2005 the Tbilisi Regional Court allowed the applicant ’ s claim in part, finding the respondent company responsible for breach of the copyright laws and ordering it to pay the applicant damages in the amount of EUR 7,000 only.

14. On 20 January 2006 the Supreme Court set aside the lower court ’ s judgment of 23 May 2005, reproaching the Regional Court for superficial assessment of the facts of the case.

15. After a reorganisation of the judicial system in Georgia which had taken place from the beginning 2006 until late 2007, the applicant ’ s case was assigned to Tbilisi City Court.

16. The City Court then scheduled a preliminary hearing for 5 March 2008, inviting both parties to attend. A second preliminary hearing was held on 28 March 2008, during which the City Court, first replacing Salbi with its legal successor, a newly created insurance company called Aldagi, and then informed both parties that a main hearing and delivery of a judgment was envisaged for 18 June 2008.

17. As the respondent insurance company, Aldagi, failed to appear for the main hearing, on 18 June 2008 the Tbilisi City Court delivered a judgment by default, allowing the applicant ’ s claim in full.

18. On 31 July 2008 the respondent company, Aldagi, attaching its explanation for the failure to attend the main hearing (notably, the fact that Aldagi ’ s lawyer had had to attend another court hearing on 18 June 2008), requested that the default judgment of 18 June 2008 be quashed and that the case be heard anew.

2. Developments subsequent to the communication of the case

19. By a decision of 26 December 2008 the Tbilisi City Court granted the respondent company ’ s request of 31 July 2008, quashing the default judgment of 18 June 2008 and renewing the proceedings.

20. On 9 January 2009 the Tbilisi City Court, after another preliminary hearing and certain factual findings which were based on freshly obtained evidence, ruled that the applicant ’ s claim should rather be directed against Griphi, the design company which had been at the origin of the allegedly wrongful use of the applicant ’ s photograph of Ushguli (see paragraph 7 above).

21. Subsequently, between late January and early April 2009, the Tbilisi City Court made several attempts to hold a main hearing in the case and to deliver a final decision. However, the hearings would always be postponed due to Griphi ’ s unexplained failures to appear before the court.

22. Finally, on 21 April 2009, after the respondent ’ s yet another failure to attend the scheduled hearing, the Tbilisi City Court examined the case in the latter ’ s absence and delivered a judgment by default allowing the applicant ’ s claim in full. Thus, the respondent design company, Griphi, was ordered to pay to the applicant the total amount of EUR 77,512 in pecuniary and non-pecuniary damages and for costs and expenses.

23. According to the parties, the default judgment of 21 April 2009 became final, and the applicant initiated on 28 May 2009 enforcement proceedings on its ground.

COMPLAINT S

24. The applicant complained under Article 6 § 1 of the Convention, invoked separately and in conjunction with Article 13, about the length of the domestic civil and criminal proceedings. He added that the authorities had been artificially protracting the proceedings, which amounted to a denial of justice in his case.

25. Additionally citing Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12, the applicant reiterated that the Georgian courts failed in their positive obligations to provide an effective and objective judicial forum for the examination of his civil claim.

THE LAW

A. As regards the length of the civil proceedings

26. The applicant ’ s complaint about the length of the civil proceedings were communicated to the Government on 12 November 2008 under Article 6 § 1 and 13 of the Convention.

1. The parties ’ submissions

27. In their observations dated 7 April 2009, the Government objected that the application was premature as the domestic proceedings were still pending at that time. Alternatively, the Government argued that the length of the pending civil proceedings could not be considered to have been unreasonable given the factual and legal complexity of the case.

28. In his observations dated 27 May 2009, the applicant first accounted for the development in the civil proceedings which had occurred after the communication of the case (see paragraphs 18-22 above). In the light of that information, the applicant reiterated that the civil proceedings, which had meanwhile been terminated by the default judgment of 21 April 2009, were unreasonably lengthy. He also introduced a new grievance about the alleged inability to proceed with the enforcement of the above-mentioned judgment. In general, the applicant maintained that the domestic courts had failed to provide him with an effective and objective forum for vindication of his tampered civil interests.

2. The Court ’ s assessment

29. At the outset, noting that the applicant introduced a complaint about the alleged inability to have the final judgment of 21 April 2009 enforced only after the communication of the case (see paragraphs 23-24 and 27 above), the Court considers that this new grievance cannot be regarded as an elaboration of the applicant ’ s original complaints. Consequently, this new matter should not be taken up in the context of the present application (compare, for instance, with Khaylo v. Ukraine , no. 39964/02, §§ 53 and 54, 13 November 2008, and Solovey and Zozulya v. Ukraine , nos. 40774/02 and 4048/03, §§ 45-47, 27 November 2008).

30. As to the communicated complaint about the length of the domestic civil proceedings, the Court considers that it must first determine whether this complaint is admissible under Article 35 § 3 (b) of the Convention, which provides as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: ...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

(a) Whether the applicant has suffered a significant disadvantage

31. The Court previously held that the criterion of whether an applicant has suffered a significant disadvantage applies where, notwithstanding a potential violation of a right from a purely legal point of view, the level of severity attained does not warrant consideration by an international court (see Ionescu v. Romania (dec), no. 36659/04, 1 June 2010; Korolev v. Russia (dec.), no. 25551/05 , ECHR 2010; and Holub v. the Czech Republic (dec.), no. 24880/05, 14 December 2010).

32. The Court recalls that it already applied this criterion to a number of cases concerning the length of proceedings. In such cases, the pure financial loss or the amount of the initial claim involved cannot be taken as the sole indication of a “significant disadvantage”, and the applicant ’ s subjective perceptions and what was objectively at stake for him ought to be assessed rather in a much more general way, by having regard to all particular circumstances of the given case (see Havelka v. Czech Republic (dec.), no. 7332/10, ECHR 20 September 2011; Shefer v. Russia (dec.), no. 45175/04, §§ 21 and 23; 13 March 2012; and Galovic v. Croatia (dec.), no. 54388/09, §§ 71-73, 5 March 2013).

33. The Court considers that the domestic legal proceedings in question cannot be said to have been particularly complex from the legal point of view. However, from the administrative aspect, they were admittedly thwarted by such facts as the series of replacements of the respondent by the different legal entities (see paragraphs 16 and 20 above), by those legal entities ’ persistent failure to attend the main hearings (see paragraphs 17, 21 and 22 above), as well as – and more critically – by the period of inactivity of the domestic court for slightly more than two years between 20 January 2006 and 5 March 2008 (see paragraphs 14-16 above).

34. It is the latter period of the domestic courts ’ inactivity which, in different factual circumstances of the case, could have arguably raised a meritorious issue under the “reasonable time” requirement contained in Article 6 § 1 of the Convention. The fact that this period coincided with the general reorganisation of the judicial system (see paragraphs 14-16 above) could hardly have served as a valid excuse since the general principle under Article 6 § 1 of the Convention is that it always remains the responsibility of the Contracting States to organise their courts in such a way as to guarantee everyone ’ s right to the determination of their civil rights and obligations “within a reasonable time” (see Pavlyulynets v. Ukraine , no. 70767/01, § 51, 6 September 2005; and G.H. v. Austria , no. 31266/96, § 20, 3 October 2000).

35. However, mindful of the need for a more general assessment of the case for the purposes of Article 35 § 3 (b) of the Convention (see the references cited at paragraph 32 above), the Court, on the basis of all the materials in its possession, observes that following the resumption of the proceedings on 5 March 2008, after which date the court activity again became of a regular nature, the applicant never raised the issue of the alleged protraction of the proceedings before the domestic courts. This fact is to be taken as the indication of his subjective indifference towards the length of the domestic proceedings. A further, decisive significance should be attached to the fact that, irrespective of the above-mentioned period of inactivity, the overall length of the proceedings – four years and four months – cannot be said to have been unreasonably lengthy as such under the Convention standards given that they were spanned over three levels of jurisdiction, some of which were called to examine the case twice (contrast with, among other authorities, Kharitonashvili v. Georgia , no. 41957/04, § 46, 10 February 2009, where the overall length of the proceedings was more than eight years). Of further relevance here was the domestic courts ’ general willingness to discipline the disruptive respondents by delivering, in the latter ’ s unjustified absences, judgments by default (see paragraphs 17 and 22 above). Finally, the Court notes the positive final outcome for the applicant of his intellectual property action, although this is not a decisive issue in length of proceedings complaints.

36. Having regard to all the foregoing considerations, the Court is of the opinion that, despite the fact that the domestic proceedings might have been unjustifiably stayed between 20 January 2006 and 5 March 2008, the assessment of the case as a whole cannot warrant a conclusion that the applicant has suffered a significant disadvantage as a result of the length of the domestic proceedings taken as a whole (compare again with Havelka , the decision cited above).

(b) Whether respect for human rights as defined in the Convention and its Protocols requires an examination of the application on the merits

37. As to the second element for the purpose of application of Article 35 § 3 (b) of the Convention, the Court observes that the complaint about the length of the court proceedings, already subject of the Court ’ s well ‑ established case-law (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 - V; Kobelyan v. Georgia , no. 40022/05, §§ 17-19, 16 July 2009, and also Kharitonashvili , cited above, § 46), in the circumstances of the case, does not concern an important question of principle, which could justify a further examination of the case.

(c) Whether the case was duly considered by a domestic tribunal

38. Lastly, as to whether the case was “duly considered by a domestic tribunal”, the Court first reiterates that in the Holub case (see Holub , the decision cited above) it clarified that the term “case” referred to in Article 35 § 3 (b) of the Convention is to be distinguished from the terms “application” or “complaint”. Rather, it corresponds to the notion of the “case” in the sense of an action, claim or request that was submitted to the domestic courts. It is the “case” understood in that way that has to be “duly considered by a domestic tribunal” for the purposes of Article 35 § 3 (b) of the Convention (see also, amongst many others Galović v. Croatia (dec.), no. 54388/09, § 76, 5 March 2013; and also Cecchetti v. San Marino (dec.), no. 40174/08, §§ 39-45, 9 April 2013). That being so, the Court notes that in the present instance the applicant ’ s “case”, that is, his intellectual property action was “duly considered” by all three levels of the domestic jurisdiction.

(d) Conclusion

39. The three conditions of the relevant inadmissibility criterion having been satisfied, the Court finds that this complaint must be declared inadmissible pursuant to Article 35 §§ 3 (b) and 4 of the Convention.

B. As to the remainder of the application

40. The applicant also complained, under Articles 6 § 1 and 13 of the Convention, about the length of the proceedings whereby he sought the establishment of the two private persons ’ criminal responsibility (see paragraphs 8-11 above).

41. The Court reiterates that Article 6 § 1 does not guarantee the right to institute criminal proceedings against a third party (see, amongst other authorities, Members (97) of the Gldani Congregation of Jehovah ’ s Witnesses v. Georgia (dec.), no. 71156/01, 6 July 2004). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

42. As to the applicant ’ s additional complaints under Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12, the Court, having regard to all the material in its possession, and in so far as the matters complained of were within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 May 2016 .

FatoÅŸ Aracı Vincent A. De Gaetano              Deputy Registrar President