THIRD SECTION

Application no . 26290/12 Zeinab BURDIASHVILI and others against Georgia lodged on 1 May 2012

STATEMENT OF FACTS

1 . A list of the applicants is set out in the appendix. They are all Georgian nationals, represented by Ms Natia Katsitadze and Mr Philip Leach, lawyers practis ing in Tbilisi and London.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background

3 . The Act of 11 December 1997 on Victim Status and Social Protection for Persons Subjected to Political Repression (“the Act of 11 December 1997”) envisaged a possibility for Georgian victims of Soviet political repression, i.e. Georgian nationals who suffered various forms of political persecution on the territory of the former Soviet Union between February 1921 and 28 October 1990, as well as their first generation heirs, to obtain compensation for non-pecuniary damage. Notably, its Section 9 read as follows:

“A person who has been recognised as victim of political repression on account of his or her deprivation of liberty, resettlement, exile, placement in a special place of residence, forceful assignment to a psychiatric hospital or death, or this victim ’ s first generation heir, shall receive monetary compensation, the amount and modalities of payment of which shall be established by a law.”

4 . Despite the general undertaking contained in Section 9 in fine of the Act of 11 December 1997, the Georgian State did not adopt a law defining the amount and modalities of payment of the relevant compensation.

2. The Court ’ s judgment in the case of Klaus and Yuri Kiladze ( no. 7975/06 , 2 February 2010)

5 . In its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze , the Court found a violation of Article 1 of Protocol No. 1 on account of the respondent State ’ s prolonged failure to undertake necessary measures in order to ensure the effective exercise of the applicants ’ right to receive a monetary compensation for non-pecuniary damage under Section 9 of the Act of 11 December 1997 (see Klaus and Yuri Kiladze v. Georgia , no. 7975/06 , §§ 68 and 74-77, 2 February 2010) .

6 . Applying Article 46 of the Convention, the Court first stated that, since the finding of a violation under Article 1 of Protocol No. 1 concerned a large number of people and reflected a structural problem, it was urgent to undertake necessary legislative, administrative and budgetary measures at the domestic level in order for victims of Soviet political repression, who were targeted by section 9 of the Act of 11 December 1997, to effectively benefit from the right to receive compensation under that section (see Klaus and Yuri Kiladze , cited above, § 84 and 85). Applying Article 41 of the Convention, the Court also held that if the necessary measures (legislative and other) were still lacking, the respondent State were to pay to each of the two applicants, within six months from the date on which the judgment became final in accordance with Article 44 § 2 of the Convention 4,000 euros (EUR) in respect of non-pecuniary damage ( ibidem , § 90).

7 . As the necessary general measures were not implemented by the respondent State within the above-mentioned time-limit of six months, each of the two applicants duly received EUR 4,000 from the respondent State, as indicated by the Court.

3. Subsequent legislative developments and judicial practice

8 . For the purposes of implementing the general measures indicated by the Court in its judgment of 2 February 2010, in March-April 2011 Parliament of Georgia initiated amendments to the Act of 11 December 1997 and to the Code of Administrative Procedure.

9 . On 14 April 2011 the Ministry of Justice of Georgia submitted the above-mentioned draft amendments to the Committee of Ministers of the Council of Europe (see paragraph 20 and 21 below).

10 . On 19 April 2011 the amendments were adopted, with certain modifications, by Parliament of Georgia. They entered into force on 18 May 2011.

11 . Thus, the newly introduced Article 21 (26)-(29) of the Code of Administrative Procedure entitled victims of Soviet political repression or their first generation heirs to submit, until 1 January 2014, applications for monetary compensations under section 9 of the Act of 11 December 1997 to the Tbilisi City Court. The new provisions of the Code also provided for various additional procedural modalities concerning the filing of such applications, their examination by the Tbilisi City Court and subsequent appellate proceedings before the Tbilisi Court of Appeal, the latter acting as the final level of jurisdiction in such matters.

12 . As to amount(s) of compensation payable under section 9 of the Act of 11 December 1997, they were not fixed by any of the above-mentioned legislative amendments. Instead, the newly added paragraph 4 of section 9 of the Act of 11 December 1997 stated that it became the Tbilisi City Court ’ s competence to determine an appropriate amount of compensation in each case, by having regard to its particular factual circumstances. Notably:

Section 9 § 4

“An amount of compensation shall be determined by the court on the basis of the gravity of the forms of coercion in question ... [deprivation of liberty, resettlement, exile, placement in a special place of residence, forceful assignment to a psychiatric hospital or death], as well as the age and health of the repressed person or his/her first generation heir, and other objective factors.”

13 . As confirmed by the official statistics issued by the Tbilisi City Court on 16 September 2011, within five months after the entry into force of the above-mentioned legislative amendments, more than three thousand applications for monetary compensation under Section 9 of the Act of 11 December 1997 were lodged with the City Court, out of which 73 cases were decided. The awarded amounts of compensation in the examined cases varied from 100 to 500 Georgian laris ((GEL) EUR 46 [1] and EUR 230 respectively), the latter maximum amount having been awarded only to the first generation heirs of victims of repression who had been executed by the Soviet State.

4. The applicants ’ individual cases

14 . All four applicants (see the appendix below) are the first generation heirs of victims of Soviet political repression. After the entry into force, on 18 May 2011, of the relevant legislative amendments (see paragraphs 7 ‑ 11 above), they filed with the Tbilisi City Court, in July 2011, applications for monetary compensation under Section 9 of the Act of 11 December 1997.

15 . Thus, the first applicant requested GEL 15,000 (EUR 7,000). She referred, amongst other circumstances, to her age (72 years), poor health condition and, most importantly, to the fact that her father had been recognised, by a court decision of 11 May 1998, a victim of the Soviet repression on account of his arbitrary conviction by a Soviet military tribunal for proffering anti-Soviet statements and his consequent execution by a firing squad in October 1942.

16 . As to the second, third and fourth applicants, who are siblings, they jointly requested GEL 25,000 (EUR 11,820). The applicants recalled in this respect that their father had been recognised a victim of political repression in 1997 on account of his arbitrary conviction in 1951 by a Soviet military tribunal for high treason; their father had first been sentenced to 25 years ’ imprisonment but pardoned and released from detention in 1955.

17 . On 17 August and 19 September 2011 the Tbilisi City Court, in the context of two separate and unrelated sets of proceedings, allowed the applicants ’ claims in part, and the Tbilisi Court of Appeals then upheld, on 1 and 15 November 2011, those decisions on appeal. Thus, the first applicant was granted a compensation of GEL 400 (EUR 190), whilst the second, third and fourth applicants were jointly awarded the sum of GEL 290 (EUR 137).

18 . The reasons given by the domestic courts in their decisions were similar in both sets of the proceedings. Thus, at first instance, the Tbilisi City, taking into account the relevant domestic provisions as well as the Court ’ s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze , noted that the amount of compensation payable under Section 9 of Act of 11 December 1997 had not been fixed by law but, on the contrary, were left to be determined by the court on the basis of the particular circumstances of each individual case. On the other hand, since it was impossible to assess all the severity, injustice and harm caused by various drastic forms of the Soviet political repression, any such amount of compensation could only be, by its very nature, symbolic. No monetary compensation could ever serve as a sufficient non-pecuniary relief. More important in this regard was the fact of the acknowledgment by the Georgian State of the historical injustice as such. The court added that the respondent State had fully complied with the Court ’ s judgment of 2 February of 2010 by introducing the legislative amendments aimed at filling “the legislative vacuum” which had been criticised by the Court.

19 . As to the appellate proceedings, the Tbilisi Court of Appeals, in reply to the applicants ’ argument that the domestic awards were derisory and disproportionate in comparison to the sums awarded by the Court in its judgment in the case of Klaus and Yuri Kiladze (the judgment cited above, § 90), stated that the domestic courts retained a broad discretionary power to determine amounts of compensation. The appellate court recalled in this respect that the Court had acknowledged itself that the respondent State should remain free to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court ( ibidem , § 88); the Court did not indicate to the respondent State any specific amount of compensation should be paid under section 9 of the Act of 11 December 1997. The appellate court also stated that, when determining the amount of compensation, which should not however be less than the minimum cost of living in Georgia (some EUR 74), the State ’ s budgetary capacities and the overall number of victims of Soviet political repression (several thousands of people) should also be taken into account.

B. Documents by the Committee of Ministers of the Council of Europe

20 . On 10 March 2011, in the context of their supervision of the execution of the Court judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze , the Committee of Ministers adopted, during their 1108 th meeting, a decision, in the following terms:

“The Deputies,

1. took note with satisfaction that the just satisfaction as well as the default interest due have been paid to the applicants;

2. took note with interest of the preliminary action plan which has been submitted by the Georgian authorities according to which a draft law has been prepared which will be submitted to the Parliament in March 2011;

3. invited the Georgian authorities to submit to them a consolidated action plan for their 1115th meeting (June 2011).”

21 . During their 1115 th meeting on 8 June 2011, the Committee of Ministers adopted another decision on the matter, which reads as follows:

“The Deputies,

1. took note, with satisfaction, of the action plan submitted by the Georgian authorities according to which in April two draft laws were being discussed before Parliament with implementation by the Tbilisi court expected to begin in May 2011: the first amending the law of 11/12/1997 on the Status as a Victim of Political Repression, in order to provide for compensation for victims; the second one amending the Code of Administrative Proceedings in order to organise the practical modalities of granting such compensation;

2. also took note with satisfaction of the subsequent information (adoption on 19/04/2011 of the amendment to the law of 11/12/1997 and publication in the Official Journal of 18 May 2011) showing that the action plan is being implemented within the foreseen timeframe;

3. decided therefore to transfer this case for examination under the standard supervision procedure.”

22 . The execution of the Court judgment of 2 February 2010 is currently still pending before the Committee of Ministers.

COMPLAINTS

23 . The applicants complain that the manner in which the domestic courts applied the legislative amendments of 19 April 2011 to their cases, which resulted in the award of derisory sums of compensation, was void of the requisite procedural fairness and rendered ineffective the very exercise of their right to claim such compensation under section 9 of the Act of 11 December 1997, which constituted a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

QUESTION TO THE PARTIES

In the light of the Court ’ s judgment in the analogous case of Klaus and Yuri Kiladze v. Georgia (no. 7975/06 , §§ 71-78 and 80-85, 2 February 2010) and the adoption of the legislative amendments of 19 April 2011 by Parliament of Georgia, was the manner of the application of these amendments to the individual circumstances of the applicants ’ cases by the domestic courts sufficient for the purposes of Article 1 of Protocol No. 1, as interpreted in the light of Article 1 of the Convention (compare with Verein gegen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 83-85 and 97-98, ECHR 2009, and Greens and M.T. v. the United Kingdom , nos. 60041/08 and 60054/08, §§ 73-79 and 106, ECHR 2010 (extracts))?

APPENDIX

[1] Here and elsewhere, approximate conversions are given in accordance with the exchange rate of the Georgian lari to the euro on 3 May 2013.