Last Updated on May 21, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 22715/07
Tamaz ILIASHVILI
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 9 October 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 application lodged on 30 April 2007,
Having regard to the declaration submitted by the respondent Government on 15 September 2016 and 17 January 2017 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Tamaz Iliashvili, is a Georgian national, who was born in 1963 and lives in Tbilisi. He is represented before the Court by Ms L. Mukhashavria, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, 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 applicant was a judge of the Supreme Court of Georgia, sitting in the Criminal Affaires Panel of the Supreme Court, the body with jurisdiction of trying particularly complex criminal cases at first instance. He started to serve his ten years’ term of office on 28 September 2000.
5. On 12 July, 31 August and 19 September 2005 the High Council of Judiciary launched, on the basis of complaints addressed under Section 6 (2) of the Act on Disciplinary Liability of Judges by the President of the Supreme Court (see paragraph 17 below), several sets of disciplinary proceedings against the applicant for multiple episodes of miscarriage of justice allegedly committed in various unconnected sets of criminal proceedings under his examination.
6. By a decision of 4 August 2006, the Disciplinary Board of Courts of Common Jurisdiction found the applicant 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 him the sanction of dismissal from office, as provided for by Section 4 (1) of the same Act (see paragraph 16 below).
7. The decision of 4 August 2006 was upheld by the Disciplinary Chamber of the Supreme Court of Georgia on 1 November 2006. The applicant was 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
8. On 6 October 2015 the Court decided to give notice of the application to the Government under both civil and criminal limbs of Article 6 § 1 and under Article 7 of the Convention.
9. After the failure of attempts to reach a friendly settlement, by letters of 15 September 2016 and 17 January 2017, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the relevant part of the application.
10. 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 applicant, the Government undertook to pay him EUR 5,000 (five thousand euros) to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to him. This sum 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. It 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 sum 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.
11. 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, the applicant became entitled, as of 1 August 2014, to apply for another judicial office in the country (see paragraphs 18 and 19 below). In other words, further remedies aimed at a fuller restoration of his rights were still open to the applicant at the domestic level.
12. In the light of the above considerations, the Government requested the Court to strike the relevant complaint out in accordance with Article 37of the Convention.
13. By a letter of 24 October 2016, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. He submitted that the Government’s declaration did not constitute an adequate redress for the distress and anxiety that had been caused to him by the arbitrary disciplinary proceedings.
C. Relevant domestic law
1. As the law on disciplinary liability of judges stood in 2005-2006
14. 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 applicant, 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”.
15. 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’.”
16. 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.
17. 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
18. On 27 March 2012 validity of Section 2 (2) (a) of the Act of 23 February 2000 on Disciplinary Liability of Judges was repealed.
19. 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 7 above).
THE LAW
20. The applicant complained under both civil and criminal limbs of Article 6 § 1 and under Article 7 of the Convention that the disciplinary proceedings against him had been unfair because the legal basis for his disciplinary dismissal from the judicial office – Section 2 (2) (a) of the Act on Disciplinary Liability of Judges – had lacked the requisite precision, clarity and foreseeability. The cited provisions read, in their relevant parts, 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.” (…)
A. As regards the complaint lodged under the civil limb of Article 6 § 1 of the Convention
21. The Court reiterates that Article 37 of the Convention provides 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 that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
22. In certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the cases to be continued.
23. To this end, the Court has examined the declaration 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 June 2007, and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
24. 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, 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).
25. 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 part of the application (Article 37 § 1 (c)).
26. In this respect, the Court attaches further significance to the fact that, subsequent to the relevant legislative amendments, the applicant’s disciplinary record under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges has been irrevocably erased, and he has thus become eligible to re-apply for and hold judicial offices again if he so desires (see paragraphs 11, 18 and 19 above).
27. 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 part of the application covered by the Government’s unilateral declaration (Article 37 § 1 in fine).
28. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application 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).
29. In view of the above, it is appropriate to strike the applicationout of the list under Article 37 § 1 (c) of the Convention in so far as it relates to the complaint lodged under the civil limb of Article 6 § 1 of the Convention.
B. As regards the remainder of the application
30. 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.
31. The applicant disagreed.
32. 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 sanction imposed on the applicant was a purely disciplinary matter 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.
33. Accordingly, the present application, in so far as it relates to the complaints under the criminal limb of Article 6 § 1 and Article 7 of the Convention, is 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,
Takes note of the terms of the respondent Government’s declaration concerning the applicant’s complaint 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 that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 8 November 2018.
Milan Blaško André Potocki
Deputy Registrar President
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