Resolution CM/ ResDH (2011)63 [1]

Execution of the judgment of the European Court of Human Rights

Donadze against Georgia

(Application No. 74644/01 , judgment of 07/03/2006 , final on 07/06/2006 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concern the applicant ’ s right to a fair trial due to Georgian courts ’ failure in 2000 effectively to examination his arguments (violation of Article 6§1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment,

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2011)63

Information about the measures to comply with the judgment in the case of

Donadze against Georgia

Introductory case summary

The case concerns a violation of the applicant ’ s right to a fair trial due to the absence of an effective examination of his arguments by Georgian civil courts in 2000 in proceedings for compensation against his employer, the Academy of Sciences of Georgia .

The European Court stressed that the Georgian courts had rejected the applicant ’ s claims on the sole basis of the arguments of the defendant administration, without any serious, in-depth examination of the applicant ’ s arguments and evidence, thus placing him at a disadvantage as compared with the defendant administration (violation of Article 6§1).

I. Individual measures

a) Details of just satisfaction

Global damages

Costs and expenses

Total

3500 EUR

300 EUR

3800 EUR

Paid on 4/09/2006

b) Individual measures

The European Court awarded the applicant just satisfaction covering, on an equitable basis, the global damages sustained and the applicant expressed no further request for specific individual measures before the Committee of Ministers.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

With a view to avoiding the occurrence of new violations similar to those found in the present case, the Georgian authorities have taken the following measures:

Publication and dissemination of the European Court ’ s case-law

The European Court ’ s judgment was translated into Georgian and published in the Official Gazette of Georgia , No. 28 of 29/05/2007. It is also to be found in Judgments of the European Court of Human Rights against Georgia published by the Human Rights Centre of the Supreme Court. This book contains the judgments delivered against Georgia between 2004 and 2010 and has been issued to domestic courts. Courts ’ attention has thus been drawn to the requirements of the Convention concerning the reasoning of judicial decisions.

Amendment of the Code of Civil Procedure (CPC) to reinforce the obligation to provide reasoned judgments

The CPC was amended on 13 July 2006 and 13 July 2007; several provisions have been adapted to insist in more detail on the importance of providing reasoned judgments.

The CPC provides that the conduct of proceedings should based on the adversarial principle and that decisions delivered by courts should be reasoned, on pain of being struck down.

Adversarial principle : Article 4 CPC provides that parties to a trial have the same rights and the same opportunity to argue their own claims and to contest the arguments, claims and evidence presented by the other party. Article 5 CPC affirms the principle of the equality of all citizens before the law in the following terms: “Justice is dispensed by a competent court on the basis of the principle of the equality of all citizens before the law”.

Reasoning of judicial decisions : Article 284-6 CPC provides that within 14 days from the public reading of a judgment, the court prepares a reasoned decision to be transmitted to the parties (legislative amendment of 13 July 2006).

The reasoning of the judgments of appeal courts is supervised by the Court of Cassation which may strike down judgments adopted in violation of the law and refer cases back for fresh examination by the appellate court, either in the same formation or another formation (Article 412 CPC).

A judgment is considered to have been adopted in violation of the law if:

- it is not legally well reasoned;

- its reasoning is so incomplete that it is impossible to assess the legal grounds for its adoption (Article 394 CPC as amended in 2006 and 2007).

Case-law of the Supreme Court

The Supreme Court has been called upon to apply these principles in disputes similar to that in the Donadze case, that is, between private individuals and public establishments and concerning issues related to labour law.

In a judgment of 24 October 2007, the Supreme Court struck down a judgment by the Civil Chamber of the Tbilisi Appeal Court dismissing a request to annul the dismissal of 13 administrative employees of the Union of Georgian Cooperatives, on the ground that the Appeal Court ’ s reasoning was so incomplete that it had proved impossible to assess the legal grounds for its adoption.

In a judgment of 13 May 2008: S. G. against Georgian Public Television, the Supreme Court partially struck down a decision of the Civil Chamber of the Tbilisi Appeal Court refusing the appellant ’ s request to be reinstated to his professional position. It referred the case back to the same formation of the appellate court, noting that it had failed to conduct a complete, objective and impartial examination of the evidence adduced and that its reasoning had been so incomplete that it had been impossible to assess the legal grounds for its adoption.

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction and that the general measures adopted will prevent similar violations and that Georgia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies