Resolution CM/ResDH(2011)108

Execution of the judgments of the European Court of Human Rights
Three cases against Georgia

(“Iza” Ltd and Makrakhidze, Application No. 28537/02, judgment of 27/09/2005,
final on 27/12/2005
“Amat-G” Ltd and Mebaghishvili Application No. 2507/03, judgment of 27/09/2005,
final on 15/02/2006
Kvitsiani, Application No. 16277/07, judgment of 21/07/2009, final on 21/10/2009

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the applicant companies’ right to of access to a court and to the peaceful enjoyment of their property, due to the failure to enforce (“Iza” Ltd and Makrakhidze, and “Amat-G” Ltd and Mebaghishvili) or delayed enforcement (Kvitsiani) of final domestic judgments ordering the state to pay certain sums to the applicant companies (violations of Article 6§1 and Article 1 of Protocol No. 1); as well as the lack of an effective remedy in this respect in the cases of “Iza” Ltd and Makrakhidze and “Amat-G” Ltd and Mebaghishvili (violations of Article 13) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

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 the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)108

Information on the measures taken to comply with the judgment
in three cases against Georgia

Introductory case summary

The cases of ”Iza” Ltd and Makrakhidze and “Amat-G” Ltd and Mebaghishvili concern violations of the applicant companies’ right of access to a court due to the failure to enforce final domestic judgments (of May 2001 and December 1999 respectively) ordering the state to pay certain sums to the applicant companies (violations of Article 6§1). They also concern the lack of an effective remedy in this respect (violations of Article 13).

These two cases also concern violations of the applicant companies’ right to the peaceful enjoyment of their property as from 7 June 2002 (the date on which Protocol No. 1 entered into force with respect to Georgia) as a result of the failure to enforce the judgments (violations of Article 1 of Protocol No. 1). The European Court noted that the non-enforcement of final judgments by Georgian state budgetary institutions on grounds of limited resources was a persistent problem recognised by the domestic authorities.

The Kvitsiani case concerns the failure, for more than five-and-a-half years, to enforce a final judgment of October 2002 ordering payment of compensation to the applicant in proceedings for which the state was responsible (violation of Article 6§1and of Article 1 of Protocol No. 1).

I.	Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name
(application number)	Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	
“Iza” Ltd and Makrakhidze (28537/02)	10 000 EUR	1 000 EUR	2 050 EUR	13 050 EUR
Paid on 18/04/2006, default interest paid	
“Amat-G” Ltd and Mebaghishvili
(2507/03)	200 000 EUR		2 000 EUR	202 000 EUR
Paid on 18/04/2006, default interest paid	
Kvitsiani
(16277/07)		3 000 EUR		3 000 EUR
Paid on 08/12/2009	

b) Individual measures

The just satisfaction awarded by the European Court in the cases of “Iza” Ltd and Makrakhidze and “Amat-G” Ltd and Mebaghishvili covers the entirety of the sums at issue in the unenforced domestic judgments.

In the case of Kivitsiani, the sums at issue in the domestic judgment had already been paid when the Court delivered its judgment.

The European Court awarded just satisfaction in respect of non-pecuniary damages to the applicants who requested it.

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

	II.	General measures

1. Violation of Article 6§1 and of Article 1 of Protocol No. 1

1.1 	Budgetary issues

As regards the budgetary inadequacies pinpointed by the Court in its judgments, the Georgian authorities have stated that this problem no longer exists, supplying statistics concerning first, the state budget allocated to the enforcement of domestic judicial decisions, and secondly, the amount committed to the enforcement of domestic judicial decisions by the National Bureau of Enforcement, as well as the number of decisions enforced.

Almost all debts (i.e., wages owed to individuals, compensation owed for damage, grants, medical treatment expenses and others) have been paid, and old enforceable decisions remaining unenforced are currently being enforced.

As a result of the Court’s judgments, a special budget of ten million laris was voted in 2007 for the payment of state debt. Since 2008 an annual fund, called the “Government Fund”, of 20 million laris has been voted with a view to reimbursing preceding years’ debts and enforcing judicial decisions (including the payment of just satisfaction awarded by the European court in judgments against Georgia). This fund is attached to the Finance Ministry.

1.2 	Reform and modernisation of the enforcement system

The administrative organs responsible for enforcement have been reformed, in particular by the creation, in October 2008 of the National Bureau of Enforcement (NBE) and the gradual establishment of a mixed bailiff system. Many measures have been taken to modernise these services and to heighten the professionalism of enforcement agents.

Enforcement procedures are governed at present by the Civil Code, the Code of Civil Procedure and the Enforcement Procedures Act of 16 April 1999, which has been amended several times, the latest modification having entered into force in December 2010.

Pursuant to Article 28§5 of this Act the NBE, upon receiving a request for enforcement of a domestic judgement establishing a debt against the state, invites the public institution concerned and the Finance Ministry to discharge the judgment.

2. Violation of Article 13 of the Convention

2.1 Forcible execution of judicial decisions against the state

Articles 90-3 and 90-4 of the Act of 16 April 1999 provide that forcible execution procedures against public institutions or legal persons incorporated under public law are activated a month after the issue of the invitation mentioned above.

Forcible execution of cases in which the state is debtor is carried out where necessary by a permanent unit of the NBE called the “Special Department”, whose functions are governed by the NBE regulations (legislative amendment of 7 December 2010). The special Department approaches the Finance Ministry with a request to make available a sum corresponding to the amount owed by the state from the Government Fund (see above, paragraph 1.1) and to pay it to the creditor.

2.2 Compensation in the event of delayed enforcement

Article 411 of the Code of Civil Procedure provides compensation for damages in respect not only of actual financial loss but also of loss of income, and for compensation for loss of income to correspond to the amount which could have been obtained had contractual obligations been fulfilled.

Article 412 states that “Damages shall be paid only when the harm could have been foreseen by the party in default and there exists a causal link between the harmful action and the result”.

Domestic courts decide on compensation.

Finally, the introduction of a legal obligation to pay default interest in the event of non-compliance with a judicial decision requiring the payment of sums of money is currently being studied.

3. Other general measures

In order that the case law of the Court is taken into account by the administration and the courts, the three judgments of the European Court were translated and published: the judgment in “Iza” Ltd and Makrakhidze was published in the Official Gazette No.13, dated 30/05/2006 ; that in “Amat-G” Ltd and Mebaghishvili in the Official Gazette No.16, dated 12/06/06 ; and that in Kivitsiani in the Official Gazette No.80, dated 11/11/2009.

The judgments also appear in a journal entitled The judgments of the European Court of Human Rights against Georgia, published in 2010 by the Human Rights Centre of the Supreme Court of Georgia. This work is a collection of judgments delivered by the European Court of Human Rights against Georgia between 2004 and 2010, and it has been distributed to the domestic courts whose awareness of the issue of implementation of domestic courts’ judgments has been raised.

III.	Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Georgia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.