THIRD SECTION

Application no. 19312/07 Akaki TCHAGHIASHVILI against Georgia lodged on 30 March 2007

STATEMENT OF FACTS

1. The applicant, Mr Akaki Tchaghiashvili , is a Georgian national, who was born in 1962 and lives in Tbilisi. He is represented before the Court by Mrs Lia Mukhashavria and Mr Vakhtang Vakhtangidze , lawyers practising in Tbilisi.

A. The circumstances of the case

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

1. Background

3 . On 18 June 1989 the applicant, an engineering student who was also employed at the railway factory in Tbilisi, attempted to board a train in Zestafoni , Georgia. In an attempt to prevent him from boarding, the conductor kicked, punched and pushed him away. As a result, the applicant fell under the train, which had gathered speed. Both his legs were amputated at ankle level, and as a result he had to give up his studies and his job. The train in question belonged to South Caucasus Railways, a Soviet State entity.

4 . On 6 October 1989 the competent authorities classified the applicant as having a disability of the first degree with complete loss of autonomy.

5 . By a judgment of 17 November 1989, the Zestafoni Court of First Instance sentenced the conductor to a prison term of one year, suspended for two years.

6 . In 1991 and 1992 the applicant managed to fund prostheses for both legs. He has not been able to afford to replace them since.

7 . In April 2003 the applicant wrote to Georgian Railways, a State entity, requesting that it pay him a monthly living allowance and cover the costs of his nurse, bandages, modern prostheses to be replaced every two years, physiotherapy and an operation.

8 . On 8 May 2003 the managing director of the railway company informed the applicant that his request had been examined, but had unfortunately been rejected as ill-founded.

2. Court proceedings

9 . On 4 July 2003 the applicant brought legal proceedings against Georgian Railways.

1 0 . On 30 October 2003 a medical expert commissioned by the Didube-Chughreti District Cour , diagnosed the applicant with osteophyte (bone growth) and ulcerated lesions on the stump of the right leg. The expert concluded that the applicant ’ s condition required surgery with a view to amputating the bone growth and that he also needed modern prostheses, which should be replaced every two years. He emphasised that, given the applicant ’ s condition, he needed help from a nurse, special medicine, including balms to treat the stumps of his limbs, bandages, specialised massages and physiotherapy. The expert considered that the applicant needed a wheelchair for rehabilitation purposes.

11 . In the light of that expert report, the applicant filed with the court a supplementary memorial requesting that Georgian Railways (hereafter “the defendant company”) be ordered to pay him, retroactively from April 2000, a monthly living allowance of around 45 euros (EUR), EUR 400 for physiotherapy, EUR 1,060 every two years for the cost of replacing his prostheses, EUR 172 a month plus a fixed sum payment of EUR 815 a year for other medical treatment deemed necessary by the expert and EUR 1,270 for the cost of the re-amputation. In support of the claims, he submitted estimates and other financial documents.

12 . On 22 January 2004 the District Court held that, in accordance with Articles 457 and 458 of the Soviet Civil Code (which corresponded to Articles 408 and 997 of the new Civil Code), liability for damage lay with the person who had caused the damage and that any entity was obliged to compensate damage caused by an employee if the latter had been carrying out his professional duties at the time. In addition, Article 463 of that Code (which corresponded to Article 999 of the new Civil Code) provided that the owner of the means of transport concerned was responsible for compensating the victim. The court considered that, in the light of those provisions and having regard to various other legal acts issued by the Georgian State after the disintegration of the Soviet Union as well as to the Charter of Georgian Railways, the defendant State company, as a successor of South Caucasus Railways, should have compensated the damage caused to the applicant by its employee.

1 3 . Having examined the documents submitted by the applicant in support of each of his claims, the District Court ordered the defendant company to pay the applicant ’ s claims as of 4 July 2003, when the application had been lodged. It found that the request for retroactive payment of the various sums claimed had become time-barred, as it had been lodged outside the three-year time-limit (Article 75 of the Soviet Civil Code).

1 4 . By a judgment of 7 May 2004, the Tbilisi Regional Court upheld the judgment of the first-instance court. Given that at the material time the Soviet Civil Code had been in force, it considered that, pursuant to its Article 484, the limitation period had started running on the date on which the applicant had applied to the defendant company for compensation.

1 5 . Ruling on an appeal lodged by the defendant company, on 28 October 2004 the Supreme Court of Georgia quashed the Regional Court ’ s judgment on the ground that it was legally ill-founded and based on a misinterpretation of Article 484 of the Soviet Civil Code. It remitted the case for a fresh examination, instructing the Regional Court to first establish the facts of the case and then examine the question of the time-limit for bringing the action.

1 6 . The defendant company then argued before the Tbilisi Regional Court that the action had become time-barred in its entirety, as the applicant had not lodged a complaint with the courts within the three-year time-limit established by Article 75 of the Soviet Civil Code. The applicant replied that his action had not become time-barred, given that in his case the compensation for damage constituted an “obligation to be honoured periodically” within the meaning of Article 129 § 2 of the new Civil Code. In his view, the three-year time-limit had started running from the date on which he had written to the defendant company and from the date on which the medical expert had concluded, in the light of the deterioration of his health, that he needed a range of medical treatment, including the assistance of a nurse.

1 7 . On 24 December 2004 the Tbilisi Regional Court held that the applicant had in fact omitted to claim, within the three-year time-limit prescribed by law, the amounts owed by the defendant company for the period of 1989 to 2000. That part of his action had accordingly become time-barred. However, given that the applicant had based his claim on the fact that a deterioration in his health necessitated, as confirmed by an expert report, considerable supplementary treatment, and that, in addition, his claim constituted an obligation to be honoured periodically (Article 129 § 2 of the new Civil Code), it held that the defendant company should pay the applicant, as of March 2000, a monthly living allowance and reimburse the costs of his nurse and the replacement of his prostheses every two years. As for the remainder of the claim, the Regi onal Court decided that as of 1 November 2003 (the expert report dating from 30 October 2003) the defendant company was to pay the applicant the monthly amounts necessary to cover the costs of his nurse, massages, bandages, medicines, the annual costs of the other treatments and physiotherapy, and cover the cost of the re-amputation.

18 . On 1 July 2005 the Supreme Court again quashed the appeal judgment. Reiterating the reasoning of the first-instance judges of 22 January 2004, it confirmed that Georgian Railways was the successor of South Caucasus Railways and was therefore obliged to pay the applicant compensation for the damage sustained. However, pointing out that under Article 1008 of the new Civil Code the limitation period was three years, the Supreme Court remitted the case to the Regional Court, ordering it to determine the date on which the applicant had become aware of his right to claim compensation and to rule on the question of the time-limit for bringing an action by providing a correct legal assessment of the facts of the case.

19 . On 28 April 2006 the Tbilisi Regional Court quashed the first-instance judgment and rejected the applicant ’ s action in its entirety as having been lodged outside the limitation period. It held that the applicant had become aware of his right to claim various types of compensation at the moment his legs had been amputated and that it was from that date that the three-year time-limit had begun to run, in accordance with Article 130 of the new Civil Code. However, the applicant had brought his action outside that time-limit, in contravention of the requirements of the Soviet Civil Code and Article 1008 of the new Civil Code. The Regional Court rejected the applicant ’ s argument regarding the application of Article 129 § 2 of the new Civil Code to the case, on the ground that the liability in question was criminal rather than contractual. In any case, in the Regional Court ’ s view, the periodicity of the claim was immaterial, as the general obligation of the defendant to compensate the applicant had not been established by a court within the three-year limitation period established by law.

2 0 . On 11 October 2006, the Supreme Court, without indicating any specific circumstances of the case, dismissed an appeal on points of law lodged by the applicant on the ground that it did not comply with the conditions laid down in Article 391 §§ 2 and 5 of the Code of Civil Procedure.

B. Relevant domestic law

1. New Civil Code

2 1 . The relevant provisions of the new Civil Code, which entered into force on 25 November 1997, read as follows:

Article 129 §§ 1 and 2

“The limitation period with respect to contractual obligations is three years ...

The limitation period for claims arising from obligations to be honoured periodically is three years.”

Article 130

“The limitation period starts running from the time the claim arises, that is, the date on which the person became aware, or should have become aware, of the violation of his right.”

Article 408

“1. The person who is to compensate the victim for the damage shall restore the situation which existed prior to the circumstances which gave rise to the claim for compensation.

2. If, as a result of physical damage or a threat to health, the victim is no longer able to work ..., or if his or her needs increase over time, the damage shall be compensated by the payment of a monthly living allowance.

3. The victim shall be entitled to request advance payment of medical fees. ...

4. The victim may claim compensation instead of a living allowance if the necessary requirements have been met.”

Article 1008

“The limitation period for claims for compensation arising from criminal liability shall be three years. This period starts to run from the time the victim becomes aware, or should have become aware, of the identity of the person liable to provide compensation.”

2. Code of Civil Procedure

2 2 . The relevant provisions of the Code read as follows:

Article 391 §§ 2 and 5 (as amended on 23 June 2005, in force as of 1 November 2005)

“An appeal on points of law can be lodged in economic disputes if the amount at stake is over 50,000 laris [approximately EUR 22,700]

In other economic and non-economic disputes, an appeal on points of law is admissible if:

a) The case is significant for the development of the law and the consistency of case-law;

b) The appeal judgment diverges from the case-law of the Supreme Court in similar cases;

c) The examination of the case on appeal discloses significant procedural violations capable of influencing the outcome of the proceedings;

d) The contested appeal judgment is a second default judgment .. .”

3. The Disabled Persons Act of 13 June 1995

2 3 . Under section 3(1) of the Act, the State endeavours to create an environment conducive to the development of disabled people and the realisation of their creative and entrepreneurial abilities. Section 13 provides that the State shall contribute to the setting up and development of a health care system for the disabled.

COMPLAINTS

2 4 . The applicant complained that the domestic courts ’ dismissal of his civil action against Georgian Railways, in particular, and, as a more general problem, the respondent State ’ s reluctance to provide him, an indigent person, with care and assistance for his serious physical disability amounted to ill-treatment within the meaning of Article 3 of the Convention.

2 5 . Relying on Article 6 § 1 of the Convention, the applicant complained about the length and the outcome of the domestic proceedings, challenging the domestic courts ’ reading of the relevant legal provisions, and also claimed that the setting aside of the decision of the appellate court by the Supreme Court of Georgia had represented an encroachment upon the independence of the Tbilisi Court of Appeal. He also complained, under the same provision, that the rejection on 11 October 2006 of his appeal on points of law without an examination on the merits had unjustifiably limited his right to have access to the Supreme Court of Georgia.

2 6 . Lastly, the applicant complained that the unsuccessful outcome of the court proceedings had constituted a violat ion of his rights under Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. As the applicant ’ s complaint under Article 3 of the Convention concerning the allegedly insufficient public involvement in the facilitation of the mobility and quality of his disabled life falls to be examined in the light of the right to respect for private life under Article 8 (see, for instance, Pentiacova and Others v. Moldova ( dec. ), no. 14462/03, ECHR 2005 ‑ I), was there, within the meaning of the latter provision, a direct and immediate link between the measures sought by the disabled applicant in the course of the domestic civil proceedings and his private life (see, for instance, Zehnalová and Zehnal v. the Czech Republic ( dec. ), no. 38621/97, ECHR 2002 ‑ V)?

- If so, has the respondent State complied with its positive obligations under Article 8 of the Convention to facilitate the mobility and quality of life of the disabled applicant (see, for instance, Sentges v. the Netherlands ( dec. ), no. 27677/02, 8 July 2003)?

2. Having due regard to the circumstances of the present case, can the respondent State be held directly responsible under the Convention for the accident caused by Georgian Railways which resulted in the applicant ’ s disability? If not, what is the significance of such a lack of substantive responsibility for the extent of the State ’ s pos itive obligations under Article 8 of the Convention?

3. Do the reasons given by the domestic courts in their decisions for the rejection of the applicant ’ s civil claim against Georgian Railways correspond to the extent of the respondent State ’ s relevant positive obligations under Article 8 of the Convention with respect to the disabled applicant?

4. Exactly which type of public assistance (disability pension, medical care for his amputated legs, assistive devices and mobility aids and so on), if any, has the applicant received from the State from the beginning of his disability to date?