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THIRD
SECTION
CASE OF
TCHITCHINADZE v. GEORGIA
(Application
no. 18156/05)
JUDGMENT
(Just satisfaction)
STRASBOURG
29 May
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In the case of Tchitchinadze v. Georgia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 10 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18156/05) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Sulkhan Tchitchinadze
(“the applicant”), on 12 April 2005.
- In
a judgment delivered on 27 May 2010 (“the principal judgment”),
the Court decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1). It held that the
arbitrary quashing of the Batumi City Court final and enforceable
decision of 18 November 2004, which established the applicant’s
title to real property, had violated his rights under Article 6 §
1 of the Convention and Article 1 of Protocol No. 1 (see
Tchitchinadze v. Georgia, no. 18156/05, §§ 53-60, 27
May 2010).
- In
the principal judgment, the Court made an award to the applicant in
respect of non-pecuniary damage and rejected his claim for costs and
expenses. As regards pecuniary damage, the Court considered that the
question of the application of Article 41 of the Convention in that
particular respect was not ready for decision, reserved it and
invited the parties to submit, within six months from the date on
which the judgment became final in accordance with Article 44 §
2 of the Convention, their written observations on the matter and, in
particular, to notify the Court of any agreement they might reach
(ibid., § 69, and point 4 of the operative provisions).
- The
applicant and the Government each filed observations.
THE LAW
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary Damage
1. The parties’ submissions
- The
Government submitted that they were willing to restore the situation
which had existed prior to the quashing of the Batumi City Court
decision of 18 November 2004. Notably, they stated that the
applicant’s ownership of part of the house located at 54
Mazniashvili street in Batumi (“the Mazniashvili estate”),
as was established by the above-mentioned court decision, could be
recorded in the relevant Land Registry again. However, the Government
reiterated a condition which they had previously raised before the
Court, notably that the applicant should still bring a fresh court
action for recovery of the estate and wait for a potentially positive
outcome of the ensuing proceedings (see Tchitchinadze, cited
above, § 67). Only if his action was rejected by domestic
courts, the Government would then consider the possibility of
awarding compensation instead; they did not, however, suggest any
approximate amount of such eventual compensation.
- The
applicant replied that he should not be obliged to undertake
additional legal steps for the purposes of Article 41 of the
Convention. In any event, he expressed his preference for monetary
compensation, arguing that the Mazniashvili estate had suffered
depreciation due to the unauthorised construction of a second floor
on its roof effectuated either by the State or a private person, the
latter issue not being clearly explained in his submissions. The
applicant added that he could accept the Mazniashvili estate on the
condition that the Government would agree to demolish that illegal
construction. Otherwise, he insisted to receive adequate compensation
comparable to the value of the two-storey house located
at 54 Mazniashvili street in its entirety. He invited the
Court to define an adequate amount of such compensation.
2. The Court’s assessment
- The
Court recalls that in the principal judgment it advised the parties,
when inviting them to reach an agreement with respect to the issue of
pecuniary damage, that the most appropriate form of redress would be
to restore to the applicant his title to the Mazniashvili estate, as
was initially established by the Batumi City Court decision of 18
November 2004 (see Tchitchinadze, cited above, § 69).
Alternatively, should this prove impossible, the Court suggested that
the applicant’s pecuniary claim could also be satisfied by
awarding him reasonable compensation for the loss of his property
title.
- Having
regard to the parties’ latest submissions, the Court first
notes that the Government’s argument concerning the need for
the applicant to bring a fresh court action for recovery of his
property was already examined and dismissed as inappropriate in the
principle judgment. Indeed, it is a well-established principle that
applicants should not be obliged to exhaust domestic remedies anew
with respect to their claims for just satisfaction under Article 41
of the Convention (see Tchitchinadze, cited above, § 68,
with further references). However, having regard to the applicant’s
own position on the matter as well as to other particular
circumstances of the case, the Court still finds that, instead of the
option of restitutio in integrum,
a more appropriate course of action would be to award him reasonable
compensation.
- The
Court emphasises in this respect that the applicant’s
expectation to obtain from the State damages for the alleged
depreciation of his estate, caused by the unlawful construction of
the second floor on its roof, is groundless. Notably, as confirmed by
the relevant records and cadastral map from the Batumi Land Registry,
the house at 54 Mazniashvili street already represented a two-storey
building at the time of the establishment of the applicant’s
title to its relevant part, which measured some 68 square meters and
was situated on the first floor, by the Batumi City Court decision of
18 November 2004. Consequently, there cannot be any connection
between the allegedly unlawful construction works and the
consequences of the arbitrary quashing of the above-mentioned
decision, the latter fact being the only one imputable to the
respondent State under the Convention in the present case.
- In
the light of the foregoing, the Court considers that the applicant
should be awarded an amount corresponding to the value of the
Mazniashvili estate exactly as it stood, measuring some 68 square
meters, at the time of the establishment of the applicant’s
property title by the Batumi City Court decision of 18 November 2004.
Making such assessment on an
equitable basis and having regard
to the information at its disposal concerning relevant
current prices on the Batumi real estate market (see Străin and
Others v. Romania, no. 57001/00, § 81, ECHR 2005 VII),
the Court estimates that value at 34,000 euros (EUR).
B. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 34,000
(thirty-four thousand euros), in respect of pecuniary damage, plus
any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned six months period until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points.
Done in English, and notified in writing on 29 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
