FOURTH SECTION

DECISION

Application no . 21004/02 Nikolay FOMKIN against Georgia

The European Court of Human Rights (Fourth Section), sitting on 20 October 2015 as a Committee composed of:

Paul Mahoney, President, Nona Tsotsoria , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 18 March 2002,

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

Having regard to the third-party comments submitted by the Government of the Russian Federation and the reply thereto of the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Nikolay Fomkin , is a Russian national, who was born in 1935 and lives in Tavda , Sverdlovsk Region, the Russian Federation. He was represented before the Court by Mr S. Golubok , a lawyer practising in Saint-Petersburg.

2. The Georgian Government (“the respondent Government”) were successively represented by their Agents, Ms I. Bartaia and 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.

1. Payment of work injury damages until August 1992

4. On 24 March 1972 the applicant, a worker of the Bzipi gravel extraction mine (“the Bzipi mine”), located near Gagra , a town in Abkhazia, Georgia, received a serious work injury caused by an industrial explosion. Immediately after the accident, he underwent a medical examination, on the basis of which he was provisionally granted status of disabled person with the loss of 90% of capacity to work. That status was valid until 28 June 1978.

5. The administration of the Bzipi mine initially refused to pay any compensation to the applicant, considering that the latter ’ s failure to abide by security rules at work had been at the core of the accident. The applicant consequently sued his former employer under Articles 457 and 472 of the Civil Code of the Georgian Soviet Socialist Republic, seeking for work injury damages.

6. By a judgment of 22 November 1972, the Gagra Court of First Instance granted the applicant ’ s civil action. The court, after having found the administration of the Bzipi mine responsible for the accident which had entailed the applicant ’ s temporary disability, ordered the latter to pay to the claimant a lump sum amount of 396 Soviet Roubles (“roubles”) as well monthly payments of 99 roubles. The latter payments were payable for the period from 1 November 1972 until 28 June 1973, the date on which the applicant ’ s disability status were to expire. The Gagra Court stated that it would be necessary to arrange for a medical re-assessment of the applicant ’ s state of health after that date in order to obtain the most recent and exact information about his state of health.

7. The judgment of 22 November 1972 was not appealed by either of the parties and entered into force. As confirmed by the applicant, all the payment due under the judgment of 22 November 1972 – both the lump sum and monthly payments for the fixed period of time – were duly discharged by the applicant ’ s former employer within the allotted period of time, that is by 28 June 1973.

8. On 27 May 1976 the applicant underwent a medical reassessment, the conclusions of which confirmed that his state of health worsened. He was again conferred the status of disabled persons with the loss of 100% of his capacity to work provisionally, until 1 July 1977.

9. In September 1976 the applicant, relying on the latest medical opinion of 27 May 1976, requested his former employer to pay him compensation in an increased amount. As the former employer refused to do so, the applicant brought another civil action against it.

10. On 1 October 1976 the Gagra Court of First Instance, having reviewed the circumstances of the case anew, delivered another judgment granting the applicant ’ s second civil action. The court ordered the respondent to pay to him 2,080 roubles in a lump sum and 89 roubles in monthly payments. Those payments were to be effectuated from 1 October 1976 until 1 July 1977, the date of the expiry of his disability status. Similarly to its previous judgment, the Gagra Court stated that limiting the monthly payments to the latter date, 1 July 1977, was conditioned by the need to conduct another re-assessment of the applicant ’ s health condition and professional fitness.

11. The judgment of 1 October 1976 was not appealed by either of the parties and entered into force. As confirmed by the applicant after the communication of the case, all the payment due under this judgment – both the lump sum and monthly payments for the specified period of time – were duly discharged by the applicant ’ s former employer within the relevant period.

12. On 13 June 1988 the applicant, who by that time had already moved his residence from Abkhazia, Georgia, to the town of Tavda in Russia, underwent another medical examination. On the basis of the resultant medical conclusions, he was granted the permanent status of a disabled person with the loss of capacity to work assessed at 60%. Referring his former employer to that newest medical opinion, the applicant requested another re-adjustment of his compensation. As the applicant himself acknowledged, the administration of the Bzipi mine accepted his new request voluntarily, as a gesture of good will, and starting paying him, monthly, an increased allowance of 134 roubles.

13. In August 1992 an armed conflict had broke out on the territory of the Abkhazian region of Georgia. The Bzipi mine discontinued payment of the applicant ’ s compensation.

2. Legal steps undertaken by the applicant after August 1992

14. In early 1993, the applicant applied to the Ministry of Labour of the Russian Federation, complaining about the cessation of the payment of the work injury damages by his former employer. In its letter of 23 April 1993, the Russian Ministry advised the applicant that, subsequent to the disintegration of the Soviet Union, Georgia had become an independent State who had its own set of laws, including those relating to the payment of work injury damages. Given that the Bzipi mine was located on the territory of the independent Georgian State, the Russian Ministry urged the applicant to re-address his complaint to the responsible agencies of the latter sovereign State.

15. Despite the above-mentioned explanations, between 1995 and 2002, the applicant continued addressing, on numerous occasions, to various authorities of the Russian Federation – the public prosecutor ’ s office, the courts, the Ministry of Justice, the Administration of President of the Russian Federation, and so on – his persistent complaints about his inability to receive work injury damages from his former employer. The majority of his complaints were routinely left without consideration by the addressed authorities, including a first-instance court in Tavda , for lack of the requisite jurisdiction to decide on the matter. There were, however, a few, more reasoned answers from some of the addressed Russian authorities, advising the applicant to apply either directly to the Bzipi mine, if that industrial entity still existed, or to the competent Georgian authorities.

16. Thus, by a letter dated 11 March 1994, the Administration of President of the Russian Federation explained to the applicant that he needed to lodge a claim for work injury damages with a Georgian court which exercised its jurisdiction on the territory where his former employer was located. The same advice was contained in a letter dated 2 April 2001 emanating from the Social Security Agency of Russia. In its reply dated latest 22 January 2002, the Ministry of Justice of Russia advised the applicant that it was unable to interfere into the legal relations occurring on the territory of the Abkhazia in circumvention of the central authorities of Georgia, notably the Ministry of Justice of Georgia.

17. According to the case materials, despite the above-mentioned numerous advices given by the Russian authorities, the applicant has never applied to Georgian courts with his complaint about the Bzipi mine ’ s failure to pay him work injury damages.

B. Relevant domestic law and practice

18. Pursuant to paragraph 32 of Decree no. 16 of the Plenum of the Supreme Court of the Union of Soviet Socialist Republics of 23 October 1963 on the “Court Practice Concerning Payment of Damages”, which document was the ultimate legal authority on the matter for all the Soviet Republics at the material time, including Georgia:

“A court judgment shall state in detail the circumstances in which the injury has been inflicted, the chain of reasoning of the court, the applicable provisions of substantive law and the exact calculation of the awarded damage.

Damage for the injury caused to the health of the claimant shall be determined in the form of monthly payments which the respondents shall pay to the claimant for a specific period of time, until a further re-assessment of the claimant ’ s state of health, if the degree of the loss of the capacity to work has been determined provisionally, for a fixed period.”

19. According to Article 24 of the Code of Civil Procedure of the Georgian Soviet Socialist Republic of 1964, which was applicable at the material time, if the execution of a court judgment were to be effectuated within a specific time-limit, that time-limit had to be explicitly indicated in the operative part of the judgment.

COMPLAINTS

20. The applicant complained under Article 6 § 1 of the Convention that, given that the Bzipi mine had ceased payment of the work injury damages in August 1992, the respondent State, Georgia, had to assume, instead of his former employer, the obligation to pay those monthly payments which had originated from the final court judgments delivered by the Gagra Court of First Instance on 22 November 1972 and 1 October 1976.

THE LAW

21. As it can be inferred from the wording of the applicant ’ s complaint, he claimed that the respondent State was responsible, under Article 6 § 1 of the Convention, for the Bzipi mine ’ s purported failure to enforce the two judgments delivered by the Gagra Court of First Instance on 22 November 1972 and 1 October 1976.

A. The parties ’ arguments

1. The respondent Government

22. The respondent Government objected that the applicant had misled the Court into believing that the impugned judgments of the Gagra Court of First Instance had imposed upon the Bzipi mine obligations of continuous nature. On the contrary, the legal effects of the judgments in question were specifically limited in time, and the respondent company had fully discharged its debts towards the applicant within those specified periods, an issue undisputed by the applicant himself. Indeed, it was fully consistent with the then applicable Soviet legal practice, to set fixed periods for payment of work injury damages in court judgments relating to disputes on accidents at work (see paragraphs 18-19 above).

23. The respondent Government emphasised that it was the applicant ’ s own understanding that after the judgments of 1972 and 1976 had been enforced, the Bzipi mine opted for paying paying the relevant compensation to the applicant, until August 1992, not on the basis of any new court decisions but rather on its own motion (see paragraph 12 above). As to the discontinuation of the payments after August 1992, the applicant should have merely filed with the Georgian courts a new action against his former employer for work injury damages.

24. Referring to the applicant ’ s attempts to initiate similar work injury proceedings before a Russian court and his other complaints addressed on the matter to the various authorities of the Russ ian State (see paragraph 14 ‑ 16 above), the respondent Government emphasised that it was difficult to understand why he had never attempted to do the same within the Georgian legal system. In that respect, the respondent Government submitted documents concerning the identical issue of payment of damages for three distinct occupational accidents which had occurred at various industrial entities operating in the region of Abkhazia prior to the break-out of the armed conflict in August 1992 (see paragraph 13 above). In all these three cases, the Georgian State, acting either through the Ministry of Labour and Social Security or a competent court seated in the capital city, Tbilisi, fully assumed, in the years of 2005 and 2006, the financial responsibility for the injurious occupational accidents occurring in the 1970-80s in industrial entities located in Abkhazia which had ceased their existence as a result of the armed conflict of August 1992.

25. The respondent Government also submitted that, given that the central authorities had lost effective control over the territory of Abkhazia as a result of the armed conflict which had started in August 1992 and lasted until September 1993, they were not in a position to verify whether the Bzipi mine was currently still operational, or to obtain from that industrial entity any additional information.

2. The applicant

26. In reply, the applicant, whilst acknowledging that the judgments of 22 November 1972 and 1 October 1976 had provided for the payment of debts within two fixed periods of time, argued that those judgments should still be interpreted as imposing upon the Bzipi mine a general obligation of continuous nature to sustain the applicant ’ s injured health by paying monthly allowances for the rest of his life. As the respondent industrial entity had been refusing to discharge that financial obligation since August 1992, the Georgian Government were required, by virtue of Article 6 § 1 of the Convention, to intervene and replace the debtor.

27. In that respect, the applicant argued that the alleged loss of effective control of the central authorities over certain parts of Abkhazia could not be invoked as an excuse for the non-fulfilment of the Georgian State ’ s international obligations. As regards the possibility of applying to courts in Georgia with a new claim for damages against his former employer, the applicant asserted that he should be excused for not pursuing that legal venue since the Georgian Government failed to prove in their observations that the resort to the Georgian judicial system was effective in practice.

3. The third-party intervention

28. In their third-party comments filed with the Court on 15 September 2008, the Government of the Russian Federation maintained that the judgments of the Gagra Court of First Instance, and notably its initial judgment of 22 November 1972, should be read as establishing the existence of the Bzipi mine ’ s continuous civil liability vis-à-vis the injured applicant. Acknowledging that the judgment debt of 22 November 1972 consisted in the monthly allocations payable to the applicant within the fixed period of time, the Russian Government argued that after the expiry of the periods in question, the obligation to pay damages to the applicant still remained valid, and it was merely necessary to conduct a re-assessment of the applicant ’ s state of health for the purposes of readjustment of the amount of the damages. That being so, the Russian Government argued that the Georgian State was responsible, by virtue of Article 6 § 1 read in conjunction with Article 1 of the Convention, for the non-enforcement of the final judgment of 22 November 1972 by the industrial entity, the Bzipi mine, that was operating on the Georgian territory.

29. The Russian Government went on to explain, by reference to the domestic and international context of the armed conflict of 1992-1993, as to why, irrespective of the de facto situation resulting from the conflict, Abkhazia constituted, according to the relevant principles of public international law, inalienable part of Georgia, over which the respondent State exercised “jurisdiction” within the meaning of Article 1 of the Convention exactly to the same extent as it did with respect to any other of the country ’ s constituent territories. Lastly, in rebuttal of the respondent Government ’ s relevant argument (see the paragraph above), the Russian Government stated that since the judgment debt of 22 November 1972 was still in force, it was futile for the applicant to file with Georgian courts a new claim for damages against the Bzipi mine.

B. The Court ’ s assessment

30. At the outset, the Court observes that it is not called to rule on the “jurisdictional” aspect raised by the present case under Article 1 of the Convention as the application is anyway inadmissible for other reasons.

31. It rather attaches significance to the applicant ’ s manifest failure to substantiate his complaint about the alleged non-enforcement of the judgments delivered by the Georgian court, the Gagra Court of First Instance, as early as in 1972 and 1976, that is well before the Convention had entered into force with respect to Georgia on 20 May 1999.

32. Firstly, the applicant failed to explain to the Court as to why exactly the Georgian State should be held responsible for the purported non ‑ payment of the judgment debts by the industrial entity that was not even a State agency. In that respect, he omitted to clarify the major aspects – whether or not the Bzipi mine was owned and/or run by the respondent State, and, in the affirmative, what the exact capital share in that enterprise belonging to the State was after 1992, whether there were any instances of the change of ownership of the company or privatisation after the disintegration of the Soviet Union and erosion of its State-managed economic system and so on (compare, amongst many others, with Mykhaylenky and Others v. Ukraine , nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and 42814/02, §§ 43 ‑ 46, ECHR 2004 ‑ XII). The applicant did not take the trouble to show to the Court that the Bzipi mine was functional at least by the time of the introduction of the present case. After all, it is far from being excluded that after the outbreak of the armed conflict in the Abkhazian Autonomous Republic of Georgia in August 1992, with this conflict lasting thirteen months, the impugned mine simply ceased its existence prior to the entry into force of the Convention with respect to Georgia, exactly as it happened with a number of other industrial entities previously operating in the same region (see paragraphs 24 above). In the latter scenario, the Court would be void of the requisite ratone temporis competence to examine the applicant ’ s complaint about the non-enforcement (compare with Sholokhov v. Armenia and the Republic of Moldova , no. 40358/05 , §§ 55-58, 31 July 2012).

33. Be that as it may, the decisive fallacy lay in the applicant ’ s attempt to present the judgments of 22 November 1972 and 1 October 1976 of the Gagra Court of First Instance as if they had created a continuous situation. In reality, however, the legal effect of those judgments was clearly limited in time. They contained no other obligations except for imposing upon the respondent company the debts consisting in payment of two lump-sum amounts as well as the monthly allowances payable within two separate fixed periods which had expired on 28 June 1973 and 1 July 1977 (see paragraphs 6 and 10 above), and the respondent company fully discharged those debts within the indicated amounts and time-limits (see paragraphs 7 and 11 above). Indeed, the content of the two judgments of the Gagra court was an illustration of the relevant routine Soviet legal practice concerning work injury damages. According to that practice, if a claimant was granted disability status by a medical conclusion for a fixed period of time, as was the applicant ’ s situation, a court decision awarding damages for an injury caused to his/her health should similarly be limited to the very same period (see paragraphs 18 and 19 above).

34. In other words, after the respondent Bzipi mine had duly discharged its time-specific judgment debts, the legal effect of the disputed judgments of 22 November 1972 and 1 October 1976 extinguished on 28 June 1973 and 1 July 1977 respectively. Subsequent to those facts, the Bzipi mine continued paying the damages to the applicant, until August 1992, not on the basis of any court decision but on its own motion rather, as a gesture of free will motivated by the company ’ s own admittance of the wrong done to the applicant, which fact was acknowledged by the applicant himself (see paragraphs 12 and 23 above). As to the discontinuation of the payment by the Bzipi mine after August 1992, the applicant, whose position was to link his former employer ’ s legal relationships with the jurisdiction of the newly independent Georgian State, should have filed a new civil action with the Georgian courts, which he never did.

35. In the light of the above considerations, the Court concludes that 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 12 November 2015 .

Fatoş Aracı Paul Mahoney Deputy Registrar President