Last Updated on July 2, 2019 by LawEuro
FIFTH SECTION
DECISION
Applications nos. 7607/07 and 8710/07
Merab TURAVA and Others against Georgia
and Tamar LALIASHVILI against Georgia
The European Court of Human Rights (Fifth Section), sitting on 27 November 2018 as a Committee composed of:
André Potocki, President,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above applications lodged on 5 and 8 February 2007,
Having regard to the declarations submitted by the respondent Government on 1 September 2016 and 17 January 2017 requesting the Court to strike the relevant part of the applications out of the list of cases and the third and fourth applicants’ reply to those declarations,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. A list of the applicants, who are all Georgian nationals and live in Tbilisi, is set out in the appendix. They were represented before the Court by Dr. A. Weber and Dr D.C. Umbach, lawyers practising, respectively, in Osnabrück and Ettlingen, Germany.
2. The Georgian Government (“the Government”) were successively represented by their Agents, Mr L. Meskhoradze and Mr B. Dzamashvili, of the Ministry of Justice.
3. The facts of the cases, as submitted by the parties, may be summarised as follows.
A. Domestic proceedings
4. The applicants were judges of the Supreme Court of Georgia, sitting in the Chamber of Criminal Affaires. They started to serve their ten years’ term of office at different times between July 1999 and December 2000.
5. On 19 September 2005 the High Council of Judiciary launched, on the basis of a complaint addressed under Section 6 (2) of the Act on Disciplinary Liability of Judges by the President of the Supreme Court (see paragraph 27 below), disciplinary proceedings against all four applicants for multiple episodes of miscarriage of justice allegedly committed in various unconnected sets of criminal proceedings under their examination.
6. By a decision of 12 December 2005, the Disciplinary Board of Courts of Common Jurisdiction, after having conducted an adversarial hearing, found the applicants liable for repeated breaches of professional duties under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges – “gross and/or multiple violation of law” – and imposed upon them the sanction of dismissal from office, as provided for by Section 4 (1) of the same Act (see paragraph 26 below).
7. The decision of 12 December 2005 was upheld by a majority of the Disciplinary Chamber of the Supreme Court of Georgia on 10 August 2006. One of the judges sitting in the Disciplinary Chamber expressed a dissenting opinion whereby he stated that the various episodes of the purported miscarriage of justice had not contained intentional wrongdoing on the part of the judges in question but had rather resulted from their freedom to exercise judicial discretion based on their “inner professional faith” (see paragraph 25 below).
8. All four applicants, who were found liable for multiples breaches of professional duties under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges, were further barred, under Section 34 (2) of the Act on Courts of Common Jurisdiction, as that provision stood at the material time, from holding judicial posts again.
B. Proceedings before the Court
9. On 13 October 2015, after having conducted a preliminary assessment of the admissibility aspects of the two cases, the Court decided to give notice of the applications to the Government under both civil and criminal limbs of Article 6 § 1 and under Article 7 of the Convention.
1. As regards the first and second applicants
10. On 8 April 2016 the second applicant informed the Court that she no longer wished to pursue the proceedings because the subject matter giving rise to her application had been fully resolved at the domestic level. Notably, she submitted that she had been elected President of the Supreme Court of Georgia and requested that application no. 7607/07 should consequently be struck out.
11. By a letter of 5 May 2016, the Government confirmed that the second applicant had indeed been elected President of the Supreme Court by Parliament of Georgia on 20 March 2015 for a ten years’ term of office. The Government confirmed that the part of the application introduced by the second applicant should consequently be struck out.
12. The Government further informed the Court that the first applicant had also been elected to a high judicial office in the country. Notably, on 20 March 2015 Parliament of Georgia elected him as a judge of the Constitutional Court for a ten years’ term of office. In that respect, the Government expressed their regret that the applicant had omitted to inform the Court of that principal factual development himself. Whether or not that omission could be qualified as an abuse of the right of individual application, the Government suggested that it was the Court’s prerogative to assess the applicant’s conduct.
13. On 11 May 2016 the Court transmitted the Government’s letter of 5 May 2016 to the applicants’ representative. Amongst other issues, the first applicant was invited to explain the reasons for his omission to inform it of his election to the high judicial office. The first applicant’s attention was brought to the Court’s well-established case-law according to which a failure by an applicant to update the Court on major factual developments could be qualified as an abuse of the right of individual application, within the meaning of Article 35 §§ 3 (a) and 4 of the Convention (see Bekauri v. Georgia (preliminary objection), no. 14102/02, §§ 21‑25, 10 April 2012).
14. The applicants’ representative replied on 1 July 2016. He did not submit any comments whatsoever on the reasons for the first applicant’s omission to inform the Court of his election to the judicial office. In its letter of 2 August 2016, addressed as a reminder to the applicants’ representative, the Court noted that its previous question concerning the causes of the first applicant’s negligent conduct had been left unanswered.
15. Despite the Court’s reminder of 2 August 2016 and the fact that the applicants’ representative subsequently addressed four additional letters to the Court (on 29 September and 17 October 2016, 14 August and 4 December 2017), in none of those subsequent letters did he provide any explanation for the first applicant’s omission to keep the Court informed of the important factual development in due time. Rather, the representative’s letters were limited to the claim that the first applicant’s election as a judge of the Constitutional Court should not deprive the latter of his right to receive damages from the State for the disciplinary proceedings arbitrarily conducted against him.
16. By their letter of 1 September 2016, the Government, who had been involved in the exchange of the relevant correspondence between the applicants’ representative and the Court, insisted that the former should provide an answer to the Court’s question concerning the reasons for the applicant’s negligent conduct. The representative failed to do so.
2. As regards the third and fourth applicants
17. As regards the third and fourth applicants, after the failure of attempts to reach a friendly settlement, by letters of 1 September 2016 and 17 January 2017, the Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issues raised by the relevant part of the applications.
18. Notably, after having acknowledged a violation of Article 6 § 1 of the Convention under its civil limb in relation to the disciplinary proceedings conducted against the third and fourth applicants, the Government undertook to pay to Mr M. Isaev and Ms T. Laliashvili EUR 10,000 (ten thousand euros) each to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to them. These sums will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. They will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
19. The Government also submitted that, since the legal ground for the applicants’ disciplinary sanction – Section 2 (2) (a) of the Act on Disciplinary Liability of Judges – had been repealed by Parliament of Georgia on 27 March 2012, both applicants became entitled, as of 1 August 2014, to apply for another judicial office in the country (see paragraphs 28 and 29 below). In other words, further remedies aimed at a fuller restoration of their rights were still open to the third and fourth applicants at the domestic level.
20. In the light of the above considerations, the Government requested the Court to strike out the third and fourth applicants’ complaints in accordance with Article 37 of the Convention.
21. By a letter of 17 October 2016, the third and fourth applicants indicated that they were not satisfied with the terms of the unilateral declarations on the ground of the insufficiency of the amounts offered to them.
22. On 14 June 2017 the Government informed the Court that on 11 May 2017 the High Council of Justice (the highest judicial self‑government body) had appointed the third applicant, with the latter’s consent, as a judge of the Tbilisi Court of Appeals. That judicial appointment was valid, in accordance with the relevant legislation, until the third applicant’s retirement age. The Government referred to that new principal factual development as yet another, tangible proof of the validity of their previous argument that further domestic remedies were open to the two applicants (see paragraph 19 above).
23. The Government’s letter of 14 June 2017 was transmitted to the applicants’ representative. On 14 August 2017 the latter replied that, despite the third applicant’s appointment to the judicial office, his client was still entitled to receive an adequate monetary compensation from the State for the arbitrary disciplinary proceedings against him. The representative further argued that his client’s appointment to a judicial post at the appellate level of jurisdiction cannot be deemed to be restitutio in integrum for the latter’s previous dismissal from a post in the Supreme Court.
C. Relevant domestic law
1. As the law on disciplinary liability of judges stood in 2005-2006
24. Section 2 (2) (a) of the Act of 23 February 2000 on Disciplinary Liability of Judges, as amended on 23 June 2005 and applicable at the time of the events complained of by the applicants, provided, amongst other, for the following type of disciplinary offence – “gross and/or multiple violation of law committed during the adjudication of a matter in court”.
25. Section 2 contained a further comment, which read as follows:
“A gross violation of law committed during the adjudication of a matter in court is a violation of significant scope which has already caused in actual fact or could potentially have caused disadvantage to the legitimate rights and interests of a main party to the proceedings or a third party. Violation of law is considered to have been multiple when it was committed three or more times.
If misinterpretation and misapplication of law has been prompted by the judge’s inner faith, it shall not be considered as ‘a gross and/or multiple violation of law.”
26. Section 4 (1) of the above-mentioned Act provided for the list of various disciplinary penalties in order of their severity: admonishment, reprimand, rebuke and dismissal from the judicial post.
27. Pursuant to Section 6 (2) of the above-mentioned Act, the High Council of Justice was vested with power to initiate disciplinary proceedings against a judge for an offence liable under Section 2 (2) (a).
2. Subsequent amendments to the law on disciplinary liability of judges
28. On 27 March 2012 validity of Section 2 (2) (a) of the Act of 23 February 2000 on Disciplinary Liability of Judges was repealed.
29. Furthermore, on 1 August 2014 Parliament passed an amendment to Section 34 (2) of the Act on Courts of Common Jurisdiction, according to which if a legal norm that had originally constituted the basis for disciplinary dismissal of a judge was subsequently repealed, the dismissed judge was no longer barred from re-applying for and holding another judicial office (see paragraph 8 above).
THE LAW
30. The applicants complained under both civil and criminal limbs of Article 6 § 1 and under Article 7 of the Convention that the disciplinary proceedings against them had been unfair because the legal basis for their disciplinary dismissal from the judicial offices – Section 2 (2) (a) of the Act on Disciplinary Liability of Judges – had lacked the requisite precision, clarity and foreseeability. The cited provisions read as follows:
Article 6
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing …”
Article 7
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
31. Having regard to the similar subject matter of the two applications, the Court finds it appropriate to examine them jointly.
32. Furthermore, the Court considers it appropriate to examine the individual situations of the four applicants in chronological order, in accordance with the time sequence in which the various events pertaining to the change in their situations occurred after the cases had been communicated to the Government.
33. The Court recalls that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of Article 37 of the Convention. This provision reads as follows:
Article 37
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
A. As regards Ms Nino Gvenetadze, the second applicant
34. Having regard to the second applicant’s letter of 8 April 2016, whereby she unequivocally requested the Court to strike her part of the application out on account of her re-election to the highest judicial office in the country (see paragraph 10 above), the Court considers that she no longer wishes to pursue her complaints and that the matter raised by the case can be considered to have been resolved within the meaning of Article 37 § 1 (a) and (b) of the Convention and that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application under Article 37 § 1 in fine.
35. Accordingly, application no. 7607/07 should be struck out of the list of cases under Article 37 § 1 (a) and (b) of the Convention in so far as it relates to the complaints introduced by the second applicant.
B. As regards Mr M. Turava, the first applicant
36. The Court observes that Rules 44C § 1 and 47 § 7 of the Rules of Court read as follows:
Rule 44C
“1. Where a party fails to adduce evidence or provide information requested by the Court or to divulge relevant information of its own motion or otherwise fails to participate effectively in the proceedings, the Court may draw such inferences as it deems appropriate.”
Rule 47
“7. Applicants shall keep the Court informed … of all circumstances relevant to the application.”
37. In this respect, the Court reiterates that whenever an applicant omits, within the meaning of Rule 44C § 1, to divulge relevant information of his or her own motion or provide information requested by the Court or otherwise fails to participate effectively in the proceedings, the Court, depending on the particular circumstances of the case, may draw the necessary inferences, including striking the application out under either of the three sub-paragraphs ((a), (b) or (c)) of Article 37 § 1 of the Convention (see, for instance, Harabin v. Slovakia (dec.), no. 18006/14, §§ 14‑23, 19 June 2018; Global Car Trade GmbH v. Croatia (dec.) [Committee], no. 42840/12, 17 October 2017; U.A. and R.S. v. Russia (dec.) [Committee], nos. 8559/16 and 50232/16, §§ 13-21, 26 September 2017; Marković v. Serbia (dec.), no. 49335/07, 14 January 2014; Havelka v. the Czech Republic (dec.) [Committee], no. 29725/11, 27 November 2012; Filatov v. Ukraine (dec.), no. 16061/05, 24 March 2009, and Fitzmartin and Others v. the United Kingdom (dec.), no. 34953/97, 21 January 2003). In a number of other cases, applicants’ failure to participate effectively in the proceedings within the meaning of Rule 44C § 1 led the Court to draw inferences about the unsubstantiated and manifestly ill-founded nature of the complaints at stake (see, for instance, Lisnyy and Others v. Ukraine and Russia (dec.), no. 5355/15, §§ 3032, 5 July 2016, and also Ponomaryov and Others v. Bulgaria (dec.), 5335/05, 10 February 2009).
38. In the present case, on 1 August 2014 the first applicant’s disciplinary record under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges was irrevocably erased, and he became eligible for a judicial mandate. Indeed, on 20 March 2015 he was re-elected to a high judicial office in the country. Those facts undoubtedly constituted key factual developments and represented relevant information for the purposes of application no. 7607/07 which concerned the applicants’ allegedly arbitrary disciplinary dismissal from their previous judicial posts with the associated inability to exercise judicial functions again. It should be noted, for comparison purposes, that the second applicant in the very same case unambiguously acknowledged before the Court that her own re-election to another high judicial post had extinguished the subject matter of the application (see paragraphs 10 and 34 above). However, the first applicant failed to comply with his above-mentioned procedural obligations under Rules 44C § 1 and 47 § 7 of the Rules of Court by not divulging of his own motion those key developments to the Court. As a result, the Court was prevented from conducting a proper preliminary assessment of the admissibility aspect of the relevant application on 13 October 2015 (see paragraph 9 above). Furthermore, despite the Court’s repeated requests, the first applicant, who subsequently sent several letters to the Court, did not furnish any explanation as to why he had not provided the Court with the relevant information (see paragraphs 13-15 above). The Court considers this to constitute yet another disregard of the procedural obligation contained in Rule 44C§ 1 (failure to provide information requested by the Court) (compare, for instance, with Harabin, the decision cited above, §§ 19‑20, and Havelka, the decision also cited above). The latter omission did not go unnoticed by the Government either (see paragraph 16 above).
39. The Court further attaches importance to the fact that the first applicant is himself a highly qualified lawyer who has moreover been represented before the Court by two other professional lawyers. In other words, he knew or should have known about the nature of his procedural obligations before the Court (see Harabin, the decision cited above, § 21). With all this in mind, the Court concludes that the first applicant has failed to participate effectively in the proceedings. Having regard to a number of other circumstances of the case – such as, for instance, the irrevocable erasure of the first applicant’s disciplinary record and his consequent re‑election to a high judicial office in the country – the Court considers that an inference must be drawn from the first applicant’s unconstructive attitudes towards the Court, within the meaning of Rule 44C § 1 in fine, that it isnolonger justified to continue the examination of his complaints (ibid, §§ 21‑23, Global Car Trade GmbH, §§ 18 and 19, cited above; Havelka and Filatov, both decisions cited above, and also R.W. v. the Netherlands (dec.), no. 37281/05, September 2010). Furthermore, the Court observes that the general principles relating to the issues raised by the first applicant have already been examined in detail by the Convention organs on numerous occasions (see the references cited in paragraph 45 below). It also notes that the provision of the domestic law challenged in the present case has irrevocably been repealed and no longer exists (see paragraphs 6, 19, 28 and 30 above). Therefore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which would require the continued examination of the first applicant’s complaints (compare with Marković, the decision cited above).
40. Accordingly, it is appropriate to strike application no. 7607/07 out of its list of cases under Article 37 § 1 (c) of the Convention in so far as the first applicant’s complaints are concerned.
C. As regards Mr M. Isaev and Ms T. Laliashvili, the third and fourth applicants
41. The third and fourth applicants complained that the disciplinary proceedings against them had been conducted in breach of both the civil and criminal limbs of Article 6 § 1 as well as in violation of Article 7 of the Convention.
42. The Court observes that the Government submitted the unilateral declarations, the terms of which addressed the two applicants’ complaints under the civil limb of Article 6 of the Convention only (see paragraphs 17-20 above and paragraph 51 below).
1. As to the complaints lodged under the civil limb of Article 6 § 1 of the Convention
43. The Court reiterates that it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
44. To this end, the Court has examined the declarations submitted by the Government in the present case in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
45. The Court has established in a number of cases, including those brought against Georgia, its practice under Article 6 § 1 of the Convention concerning complaints about the fairness of disciplinary proceedings conducted against judges (see, for example, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 119-128, 6 November 2018;Denisov v. Ukraine [GC], no. 76639/11, §§ 44-82, 25 September 2018;Baka v. Hungary [GC], no. 20261/12, §§ 100-122, ECHR 2016; Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 83-156, ECHR 2013; Sturua v. Georgia, no. 45729/05, §§ 19-36, 28 March 2017; Olujić v. Croatia, no. 22330/05, §§ 26-91, 5 February 2009, and Mariamidze v. Georgia (dec.), no. 9154/06, 19 September 2017).
46. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the relevant parts of the applications (Article 37 § 1 (c)).
47. In this respect, the Court attaches further significance to the fact that, subsequent to the relevant legislative amendments, both applicants’ disciplinary records under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges have been irrevocably erased, and they have thus become eligible to re-apply for and hold judicial offices again (see paragraphs 10, 12, 19, 22, 28 and 29 above). In actual fact, the third applicant has already been appointed, with his own consent, as a judge of the Tbilisi Court of Appeals, whilst as regards the fourth applicant, it obviously remains open to her to resort to the relevant recruitment procedures at the domestic level if she so desires.
48. In light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the parts of the applications covered by the Government’s unilateral declarations (Article 37 § 1 in fine).
49. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declarations, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
50. In view of the above, it is appropriate to strike applications nos. 7607/07 and8710/07 out of the list under Article 37 § 1 (c) of the Convention in so far as they relate to the complaints lodged by the third and fourth applicants under the civil limb of Article 6 § 1 of the Convention.
2. As to the complaints lodged under the criminal limb of Article 6§ 1 and under Article 7 of the Convention
51. As regards the complaints concerning the criminal limb of Article 6 § 1 and Article 7 of the Convention, the Government objected that, according to the Court’s case-law, those complaints were incompatible ratione materiae with the invoked provisions.
52. The third and fourth applicants disagreed.
53. The Court, in line with its previous findings on the dismissal of judges from their posts, reiterates that the disciplinary proceedings in the present case did not attract the applicability of the criminal limb of Article 6 § 1 of the Convention (see Denisov, cited above, § 43; Sturua, cited above, § 28; Mariamidze, the decision cited above, § 21, and also compare with Oleksandr Volkov, cited above, §§ 92-95). Furthermore, having regard to the close interplay between the criminal limb of Article 6 § 1 and Article 7 of the Convention, and the fact that the sanctions imposed on the third and fourth applicants were purely disciplinary matters and cannot be considered to be a penalty arising out of a criminal conviction (compare also with Bravo Belo v. Portugal (dec.) [Committee], no. 57026/11, 21 June 2016), the latter provision cannot be held applicable in the present case either.
54. Accordingly, applications nos. 7607/07 and8710/07 are, in so far as they relate to the third and fourth applicants’ complaints under the criminal limb of Article 6 § 1 and Article 7 of the Convention, incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the complaints lodged by the second applicant out of its list of cases in accordance with Article 37 §§ 1 (a) and (b) of the Convention;
Takes note of the terms of the Government’s declarations concerning the third and fourth applicants’ complaints under the civil limb of Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike all of the complaints lodged by the first applicant and the complaints lodged by the third and fourth applicants under the civil limb of Article 6 § 1 of the Convention out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 20 December 2018.
Milan Blaško André Potocki
Deputy Registrar President
Appendix
No. |
Application no. | Lodged on | Applicant name
Date of birth |
| 1. | 7607/07 | 08/02/2007 | Mr Merab TURAVA
(“the first applicant”) 23/09/1964 Ms Nino GVENETADZE (“the second applicant”) 27/02/1964 Mr Murman ISAEV (“the third applicant”) 09/08/1954 |
| 2. | 8710/07 | 05/02/2007 | Ms Tamar LALIASHVILI
(“the fourth applicant”) 10/06/1963 |
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