Last Updated on July 7, 2019 by LawEuro
FIFTH SECTION
DECISION
Applications nos. 64623/12 and 64819/12
Nugzar KHUTSISHVILI and LLC KARTU MSHENEBELI against Georgia
and GEORGIAN DREAM against Georgia
The European Court of Human Rights (Fifth Section), sitting on 2 October 2018 as a Committee composed of:
Síofra O’Leary, President,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above applications lodged on 26 September 2012 and 28 September 2012 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The three applicants in the present case are, Mr Nugzar Khutsishvili, a Georgian national who resides currently in Tbilisi (“the individual applicant”), Kartu Mshenebeli LLC, a private company registered under Georgian laws (“the applicant company”), and Georgian Dream, a political party registered and based in the respondent State (“the applicant party”). They were all represented before the Court by Ms A. Kakhniauri, a lawyer practising in Tbilisi. Further details regarding the applicants are set out in the appendix.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 9 February 2012 the individual applicant, who at that time was a deputy director of the applicant company, made a donation to the applicant party of 20,000 Georgian laris (GEL) (approximately 9,200 euros (EUR) at the material time).
5. By a decision of 27 February 2012, the competent State agency found all three applicants liable for serious breaches of the relevant domestic legislation on funding of political parties. The applicants were issued administrative fines of GEL 200,000 (approximately EUR 92,000 at the material time) each.
6. The applicants challenged the imposed fines, but the Tbilisi City Court, by its decisions of 12 and 15 March 2012, confirmed the validity of the administrative sanctions. On 27 March and 2 April 2012 the Tbilisi Court of Appeal dismissed the applicants’ appeals, finally terminating the dispute. Shortly afterwards, the applicants duly paid the imposed fines.
COMPLAINTS
7. The applicants complained under Article 1 of Protocol No. 1 that the imposition of the administrative fines had constituted a disproportionate interference with their property rights.
THE LAW
8. Each of the applicants complained about the imposition of the administrative fine in the amount of GEL 200,000. The cited Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and sub to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest…”
9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
A. The parties’ submissions
10. On 18 October 2017 notice of the applications was given to the Government.
11. On 9 March 2018 the Government informed the Court that in 2013 all of the applicants had received back from the State the amounts they had been made to pay as administrative fines. Notably, on 19 December 2012 an Act on the exemption from certain forms of administrative liability, including those relating to breaches of the legislation on funding of political parties, had been enacted and granted retroactive effect. Consequently, the individual applicant, the applicant company and the applicant party had recovered GEL 200,000 each from the State budget on, respectively, 10 and 14 January and 15 July 2013.
12. In the light of the afore-mentioned legal and factual developments, the Government did not deem it necessary to submit observations on the admissibility and merits, as the matter giving rise to the applications had been fully resolved at domestic level.
13. On 22 March 2018 the Court transmitted the Government’s letter of 9 March 2018 to the applicants’ representative. Among other issues, the applicants were invited to explain the reasons for their omission to inform the Court of the reimbursement of the administrative fines. In that respect, the applicants’ 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). The applicants were also invited to comment on the question of whether or not the matter giving rise to their applications can be considered to have been resolved at the domestic level.
14. The applicants replied on 20 April 2018. They confirmed that in January and July 2013 the respondent State had paid back the fines to them on the basis of the relevant administrative amnesty law (see paragraph 11 above). Nevertheless, they disagreed with the Government that the matter had been resolved at domestic level since the latter had never acknowledged a violation of the relevant provisions of the Convention. As regards the question as to why they had omitted to update the Court of those important factual developments, the applicants stated that, in their opinion, it was the Government’s role to keep the Court informed of such developments.
B. The Court’s assessment
15. The Court considers that it is not necessary to determine whether or not the matter giving rise to the applications has been resolved at domestic level within the meaning of Article 37 § 1 (b) of the Convention, as the applications are in any event inadmissible for the following reasons.
16. It reiterates that, according to Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, applicants, acting in person or through their legal representatives, are under the continuous obligation to keep the Court informed of all important circumstances regarding their pending applications (see, for example, Bekauri, cited above, § 21). Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see, amongst many others, Hadrabova v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007, and Pirtskhalaishvili v. Georgia (dec.), no. 44328/05, 29 April 2010). The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see, for instance, Gross v. Switzerland [GC], no. 67810/10, § 28, 30 September 2014,and also Kerdikoshvili v. Georgia (dec.) [Committee], no. 35868/10, § 12, 12 June 2018).
17. Turning to the circumstances of the present cases, the Court notes that their subject matter was the imposition upon the applicants, in February 2012, of the administrative fines in the amount of GEL 200,000 each. The applications were lodged in September 2012 with the purpose of contesting these fines as disproportionate interferences with the applicants’ property rights. However, only a few months after the introduction of their applications the Act of 19 December 2012 was adopted with retroactive effect, exempting the applicants from the relevant administrative liability. Consequently, in January and July 2013 each of the applicants successfully claimed back the fines from the State on the basis of that Act (see paragraphs 11and 14above). All these factual developments were of significant nature as they related to the very core of the applications. Nevertheless, the applicants failed to inform the Court of these key developments, which amounts to a breach of their procedural obligation under Rule 47 § 7 of the Rules of Court (see Bekauri, cited above, § 21). As a result of that omission, the Court was prevented from conducting a proper preliminary assessment of the admissibility aspect of the applications on 18 October 2017 (see paragraph 10above). Furthermore, in view of the content of the applicants’ letter of 20 April 2018, the Court considers that they failed to give any justifiable reason for their serious omission (see paragraph 14above).
18. Having regard to the importance for the proper determination of the present case of the information that the applicants withheld from it, the Court finds that their conduct was contrary to the purpose of their right of individual application as provided for in Article 34 of the Convention (compare, amongst many other authorities, with Stojnić v. Bosnia andHerzegovina (dec.), no. 24652/09, § 23, 6 October 2015;Ronly Holdings LTD. v. Georgia (dec.) [Committee], no. 41444/05, §§ 16‑22, 7 November 2017, and Selina v. Lithuania (dec.) [Committee], no. 17969/10, §§ 34‑35, 5 September 2017).
19. Accordingly, the cases must be rejected as abusive, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 25 October 2018.
Milan Blaško Síofra O’Leary
Deputy Registrar President
Leave a Reply