Resolution CM/ ResDH (2010)163 [1]

Execution of the judgment of the European Court of Human Rights

FC Mretebi against Georgia

(Application No. 38736/04 , judgment of 31/07/2007 , final on 31/01/2008, rectified on 24/01/2008 )

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 an infringement of the right of access to a court, and thus to a fair hearing, in that the applicant, the Football Club Mretebi , could not continue proceedings for damages following the refusal by the Supreme Court to grant its request for exemption from court fees (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;

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;

Having noted that the applicant club has lodged a new application to the European Court of Human Rights, and recalling that the present Resolution in no way prejudges the Court ’ s examination of the new application;

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 (2010)163

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

FC Mretebi against Georgia

Introductory case summary

The case concerns an infringement of the right of access to a court, and thus to a fair hearing, in that the applicant, the Football Club Mretebi , could not continue proceedings for damages following the refusal by the Supreme Court to grant its request for exemption from court fees (violation of Article 6§1).

The European Court observed in particular that the Supreme Court failed, in its decision of 5/01/2004, to secure a proper balance between the interest of the state in securing reasonable court fees on the one hand that of the applicant in vindicating its claim through the courts on the other.

I. Individual measures

The applicant did not request just satisfaction for non-pecuniary damage. The Court rejected the applicant ’ s claim for pecuniary damage on the ground that it could not speculate about the outcome of the domestic proceedings had they been in conformity with Article 6§1. The Court stated that, having regard to its finding in this case, and without prejudice to other possible measures remedying the unjustified denial of the applicant ’ s right of access to the court of cassation, it considered that the most appropriate form of redress would be to have the applicant ’ s points-of-law appeal of 5/01/2004 examined by the Supreme Court, in accordance with the requirements of Article 6§1, should the applicant so request.

On 14/03/2008 the applicant ’ s representatives filed a request with the Supreme Court to review the applicant ’ s cassation appeal of 5/01/2004. On 21/07/2008, the Supreme Court, sitting in camera, dismissed the applicant club ’ s request for re-examination as it did not refer to any grounds for re-examination provided in Articles 422 (request to render a final decision null and void) and 423 (re-examination of a final decision on the basis of newly discovered circumstances) of the Code of Civil Procedure, the only two domestic legal avenues for such an action.

On 4/05/2010, amendments to the Code of Civil Procedure were adopted which provide in particular that a judgment of the European Court finding a violation of the Convention is a new circumstance and thus constitutes grounds for reopening proceedings. Where reopening proves impossible in the interest of third parties in good faith, the competent court may award compensation to the applicant party:

“Article 423: request to reopen proceedings on the grounds of a new circumstance.

1. A final judgment may be subject to a request for re-examination upon discovery of a new circumstance if:

Article 423§1 (g): there exists a judgment or decision of the European Court of Human Rights in which the Court has found a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms or of the protocols thereto having regard to the case to re-examined and that the violation is the consequence of the judicial decision to be re-examined.

Article 423§4: If proceedings are reopened on the basis of §1 (g), the court shall examine the question of awarding compensation to the applicant party if, on account of the acquisition of rights in good faith by third parties, it is impossible to change the judicial decision already adopted.

Article 426§2: Where the grounds set out in Article 423§1 (g) of the present Code are established, the request for reopening of proceedings on grounds of a new circumstance must be submitted within three months of the date upon which the judgment or decision of the European Court became final.

Article 426§4: Pleas of nullity or requests for reopening of a decision on grounds of new circumstances are not admissible five years after the expiration of a period of five years following the entry into force of the judicial decision complained of, except in cases provided under Article 423§1 (g).”

These amendments entered into force on 15/05/2010.

In addition, having regard to the conclusions of the Court in this judgment, the legislator introduced transitory provisions provided that physical or legal persons (including the applicant club) having already been refused reopening of proceedings, may introduce fresh requests within one month following the entry into force of the new amendments:

“New Article 444: Reopening of proceedings on grounds of a new circumstance resulting from a judgment or decision of the European Court of Human Rights: Article 423!1 (g) of the present Law is equally applicable to both physical and legal persons who have been refused the reopening of proceedings on grounds of a new circumstance resulting from a judgment or decision of the European Court of Human Rights if they submit their request to reopen proceedings on grounds of a new circumstance before 15 June 2010.”

The Georgian authorities indicated that the applicant club did not avail itself of this right

Lastly in 2009, the applicant club lodged a new application to the European Court , relying on Articles 6, 13 and 46 of the Convention.

II. General measures

It appears from the Court ’ s judgment that provisions concerning exemption of court fees have changed. The provisions currently in force are as follows:

According to Article 37 of the Code of Civil Procedure, c ourt fees are composed of the state fee and the costs incurred for purposes of the proceedings.

Article 39 which sets the amount of the state fee has been modified and these amounts have been increased. Article 47 deals with “Exemption of payment of court fees by the Judge” and provides in particular that “ With due regard to the financial situation of the party concerned, the judge may exempt that party in whole or in part from court fees to be paid to the state budget, if that party can prove its inability the to pay the court fees and if it provides relevant evidence. The judge shall give a reasoned decision. Lastly, A rticle 48 provides that “ with due regard to the financial situation of the party concerned, and if the party provides relevant evidence, the judge may extend the time-limit for payment or reduce the amount of court fees to be paid to the state budget.”

III. Conclusions of the respondent state

The government considers that they have adopted necessary measures to remedy the consequences for the applicant of the violation of the Convention found by the European Court in this case, that the general measures will prevent similar violations and that Georgia have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies.