FIFTH SECTION

DECISION

Application no. 4496/11 Maia SITCHINAVA and Davit SITCHINAVA against Georgia

The European Court of Human Rights (Fifth Section), sitting on 15 June 2023 as a Committee composed of:

Stéphanie Mourou-Vikström , President , Lado Chanturia, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 4496/11) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 December 2010 by two Georgian nationals, Ms Maia Sitchinava and Mr Davit Sitchinava, who were born in 1991 and 1992 respectively and live in Tbilisi (“the applicants”), represented by Ms T. Dekanosidze, a lawyer practising in Tbilisi, and Ms K. Levine, Mr P. Leach, Mr V. Grigoyan, Ms J. Gavron and Ms J. Evans, lawyers based in London;

the decision to give notice of the complaints under Articles 6 and 8 of the Convention to the Georgian Government (“the Government”), represented by their Agent at the relevant time, Mr L. Meskhoradze, of the Ministry of Justice, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the eviction of the applicants from the flat their father (K.S.) sold to a third person.

2. Following the applicants’ parents’ divorce in 1999, the applicants continued to live with their mother in a flat owned by K.S. In 2003 the applicants’ father transferred that flat, by way of a notarial deed of gift, to his daughter (the first applicant). Three years later, however, he successfully sought the annulment of the deed of gift and then initiated eviction proceedings, although unsuccessfully.

3. On 22 August 2008 K.S. sold the flat in which the applicants were living to a third person, J.T. On 3 September 2008 the new owner of the flat lodged a complaint with the police, stating that K.S. and the applicants failed to vacate the flat, and requested their eviction. On 23 October 2008 the applicants were served with a police notice inviting them to voluntarily vacate the flat. The applicants did not do so.

4. By a decision of 18 February 2009, the Tbilisi City Court, acting on the request of J.T., ordered K.S. and the applicants to vacate the property. The applicants were not parties to the proceedings before the Tbilisi City Court.

5 . On 24 March 2009 a writ of enforcement was issued and on 2 September 2009 the applicants were evicted from the flat. The applicants brought a court action against the enforcement authorities, their father, and the new owner of the flat, requesting the annulment of the writ of enforcement and to be allowed to return to the flat in question. Their complaint was dismissed by the Tbilisi City Court on 26 November 2009. That decision was upheld by the Tbilisi Court of Appeal on 30 April 2010 on a subsequent appeal. The applicants did not avail themselves of the possibility of lodging an appeal on points of law with the Supreme Court.

6 . On 1 December 2008 the applicants initiated civil proceedings seeking the annulment of the sale contract between their father and J.T. They alleged that it had been a fraudulent agreement, the only purpose of which had been to evict them from the flat.

7. The applicants requested the first-instance court to exempt them from paying the court fees in the amount of 120 Georgian laris ((GEL) – approximately 40 euros (EUR)). They based their request on Article 47 § 1 of the Code of Civil Procedure (see paragraph 13 below), alleging that they were registered in the database of socially vulnerable families and that they did not have sufficient financial means. On 5 December 2008 the first ‑ instance court dismissed their request, concluding that the applicants had failed to submit the required evidence in support. The applicants paid the court fees.

8. On 1 April 2009 the Tbilisi City Court dismissed their claim, concluding that the applicants had no ownership rights over the contested property. The fact that they had been registered as residents at the relevant address did not have any effect on their father’s exclusive ownership of the property. The court further stressed that the place of residence of the minor children was the father’s place of residence in general, and not that specific flat, and that the fact that the father had certain obligations and responsibilities vis-à-vis his children could not imply his being prevented from selling his own flat. Moreover, with regard to the property itself, the interests of the bona fide buyer prevailed.

9 . The applicants lodged an appeal against the decision of 1 April 2009, reiterating at the same time their request for a waiver of the court fees in view of their young age and poor financial situation. On 11 June 2009 they supplemented their appeal, requesting a waiver of the court fees based on Article 46 § 1 (e) of the Code of Civil Procedure which provided for an exemption from court fees in proceedings related to the interests of minors (see paragraph 13 below). On various dates the appeal court refused their request, granting, however, several extensions of the payment deadline. In its decision of 12 June 2009, the court, while noting that the applicants were minors, concluded that the conditions for an exemption or reduction of the fees were not made out, as they had failed to submit evidence of their financial situation. The applicants paid the court fees of GEL 1,200 (approximately EUR 400).

10. On 15 January 2010 the Tbilisi Court of Appeal, fully endorsing the reasoning of the court of first instance, dismissed their appeal. It concluded that the applicants’ father had been the sole owner of the property in question and that by disposing of his own real property he had not breached the rights or legal interests of any other person. It further concluded that the applicants had failed to show that the contract in issue had been concluded with fraudulent intent.

11 . On 15 March 2010 the applicants lodged an appeal on points of law, again requesting a waiver of the court fees, this time in the amount of GEL 1,500 (approximately EUR 700). They reiterated that they were entitled to a waiver pursuant to Article 46 § 1 (e) of the Code of Civil Procedure. They also stressed that they were school pupils and had no independent income. On 31 March and then 29 April 2010 the Supreme Court rejected, without giving any reasons, their request for the waiver of the court fees (the latter decision served on the applicants on 13 May 2010) and granted an extension of the payment deadline by seven days. Alternatively, the applicants were invited, within the same time-limit, to produce a document showing their receiving social assistance (see Article 46 § 1 (f) cited in paragraph 13 below). The decision regarding the court fees stated in its operative part that it was final and not amenable to appeal.

12 . Despite the extension, the applicants failed to pay the court fees or produce the requested evidence. As a consequence, by a decision of 10 June 2010 the Supreme Court of Georgia left their appeal on points of law unexamined. That decision was final.

RELEVANT LEGAL FRAMEWORK

13 . The relevant Articles of the Code of Civil Procedure as regards the payment of court fees provided as follows at the material time:

Article 46 – Exemption from court fees

“1. The following are exempt from paying court fees ...

(e) applicants – when their complaints concern an alleged violation of the rights of minors;

(f) parties – who are duly registered in the unified database of socially vulnerable families and who receive social assistance, as confirmed by relevant documentation.”

Article 47 § 1 – Exemption from court fees by a court

“A court, having regard to the financial situation of a citizen, where the latter substantiates that he or she cannot pay court fees and submits reliable evidence to the court, may exempt the citizen in whole or in part from paying court fees ...”

THE COURT’S ASSESSMENT

14. The applicants complained under Article 8 of the Convention that as a result of arbitrary court decisions they had been made homeless. The Government did not comment on the admissibility of the above complaint.

15. The Court notes that the actual interference with the applicants’ right to respect for their home took place on 2 September 2009 when they were evicted pursuant to the writ of enforcement of 24 March 2009 (see paragraph 5 above). While the applicants requested the annulment of the writ of enforcement (see paragraph 9 above), they failed to lodge an appeal on points of law against the relevant Appeal Court’s decision (see ibid.). In such circumstances, even assuming that the six months’ time limit, under Article 35 § 1 of the Convention, started running from the decision of the Appeal Court of 10 April 2010 and not earlier, the complaint was submitted to the Court out of time.

16. The above conclusion is not affected by the fact that the applicants brought proceedings seeking the annulment of the sale contract between their father and J.T. (see paragraphs 6-12 above) because those proceedings did not concern the question whether the applicants had been evicted in breach of their right to respect for their home and, in any event, as established by the domestic courts, could not in any way affect the applicants’ alleged right to reside in the flat. Accordingly, the civil proceedings brought by them were not capable of affording redress in respect of their complaint under Article 8 of the Convention (compare Jansons v. Latvia , no. 1434/14, § 65, 8 September 2022) and should not be taken into consideration when determining the starting point of the six-month time-limit for the purposes of Article 35 § 1 of the Convention.

17. It follows that this part of the application, which was submitted on 9 December 2010, must be rejected in accordance with Article 35 § 1 of the Convention.

18. The applicants complained that during the sale contract annulment proceedings the domestic courts had unlawfully refused to exempt them from paying court fees.

19. The Government asked the Court to treat each refusal by the domestic courts to exempt the applicants from court fees separately and, consequently, to dismiss the applicants’ complaint as far as the proceedings before the first instance and the appeal courts were concerned for non-compliance with the six-month time-limit. As regards the proceedings before the Supreme Court, among others, the Government submitted that the applicants’ request for the waiver of the court fees had been dismissed by a decision of 29 April 2010, served on the applicants’ lawyer on 13 May 2010. Thus, they should have complained to the Court no later than 13 November 2010, which they had failed to do.

20. The applicants submitted that their applications to be exempted from paying the court fees concerned one and the same claim and that the six ‑ month period had started running from the last decision of the Supreme Court. They further submitted that by its decision of 29 April 2010, the Supreme Court had merely rejected their exemption request and granted them additional time to pay the court fees. It was only on 10 June 2010 that the Supreme Court had decided to leave their appeal unexamined and had thus restricted the applicants’ access to the Supreme Court.

21. The Court observes firstly that it is unclear in what regard the outcome of the civil proceedings instituted by the applicants on 1 December 2008, which concerned the question whether K.S. had validly sold a flat to J.T., was decisive for their rights. In any event, even assuming that Article 6 of the Convention applied, the Court reiterates that, if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of. In the present case, the applicants failed to show that the higher courts could rectify the allegedly erroneous decisions of the lower courts concerning the imposition of the court fees. In that connection, the Court also notes that the applicants did not seek the reimbursement of the court fees already paid before the first and appellate instances in their appeal on points of law submitted to the Supreme Court. In such circumstances, noting that the Tbilisi City Court and the Tbilisi Court of Appeal refused the applicants’ fee exemption requests on 5 December 2008 and on 12 June 2009 respectively, the Court considers that the relevant part of the applicants’ complaint raised in their application which was filed with the Court only on 9 December 2010 is belated. The Court accordingly accepts the Government’s objection of failure to comply with the six-month rule as far as the proceedings before the first and appellate instances are concerned.

22. As to the cassation court, the applicants submitted that the Supreme Court’s decision of 10 June 2010 was the final decision for the purposes of Article 35 § 1 of the Convention. The Court notes, however, that it was by the decision of 29 April 2010, served on the applicants on 13 May 2010, that the applicants’ request for an automatic exemption from court fees made under Article 46 § 1 (e) of the Civil Code of Procedure was finally refused (see paragraph 11 above). The subsequent proceedings could not have afforded any redress in respect of the applicants’ complaint that they had not been granted an automatic exemption under Article 46 § 1 (e) of the Civil Code of Procedure. It follows that this part of the application, lodged on 9 December 2010, was introduced more than six months after the final effective decision was notified to the applicants.

23. The Court, thus, concludes, that the applicants’ complaint under Article 6 of the Convention 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 6 July 2023.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President