Application no. 41710/05
The European Court of Human Rights (Fifth Section), sitting on 12 June 2018 as a Chamber composed of:
Angelika Nußberger, President,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 21 November 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
1. The applicant, Mr Hussain Ali, is a Canadian national, who was born in 1961 and lives in Canada. He was represented before the Court by Mr A. Baramidze, who withdrew from the case on 1 November 2012, Mr H. von Sachsen-Altenburg, and Mr I. Kandashvili, lawyers practicing in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their successive former Agents, most recently Mr L. Meskhoradze of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 16 August 2001 the applicant entered into a share-purchase agreement (“the SPA”) with LLC Georgian Tobacco Manufacturing-BVI, a company incorporated under the laws of the British Virgin Islands (“the BVI company”). By the terms of the SPA, the applicant acquired, for 450,000 United States dollars (USD), a 90% stake in LLC Georgian Tobacco Manufacturing (hereinafter “the tobacco company”), a company co-founded by the BVI company and incorporated under Georgian law. The remaining 10% of the shares were owned by Mr A.Ts. (“the minority shareholder”).
5. The applicant and Mr Y.A.L., a duly authorised representative of the BVI company, both arrived in Tbilisi in the early morning of 16 August 2001 with the specific purpose of signing the SPA. At Tbilisi Airport they were welcomed by Mr H.S., a friend of the applicant, Mr T.M., a lawyer then authorised to act on behalf of the tobacco company and subsequently implicated in the unconfirmed allegations of and criminal proceedings related to the fabrication of a power of attorney on the applicant’s behalf (see paragraphs 39-61 below), and Ms E.Sh., a notary public registered in Tbilisi (“the first notary public”).
6. Without leaving the airport building, the applicant and Mr Y.A.L. signed the SPA which was then certified by the first notary public. In addition, the notary certified a power of attorney by which Mr Y.A.L. was authorised to represent the applicant and to sign official documents on his behalf.
7. On 20 December 2001, a certain Mr A.Y. ceded to the applicant his claim against the tobacco company with a value of USD 2,818,083 (approximately 1,958,335 euros (EUR)). The contract did not stipulate any obligations on the applicant’s behalf in exchange for the said cession.
2. Isani-Samgori district court decision of 16 September 2004 and the transactions related to the applicant’s property
8. On 6 September 2004 Mr A.Y. (see paragraph 7 above) instituted proceedings against the applicant before the Isani-Samgori District Court, indicating Mr T.M. (see paragraph 5 above) as the applicant’s representative.
9. Mr A.Y. claimed that on 20 December 2001 he had entered into an agreement with the applicant according to which the former had ceded to the latter a claim to the tobacco company with a value of USD 2,818,083 (EUR 1,958,335). He further asserted that in exchange for the cession, the applicant should have paid him “a certain amount of money” by December 2002. Owing to the applicant’s alleged failure to perform that obligation, Mr A.Y. demanded the annulment of the agreement of 20 December 2001 and the restoration of the situation existing before the alleged breach of the contractual duty.
10. At the main hearing of 16 September 2004 Mr T.M. (“the applicant’s alleged representative”) presented a power of attorney authorising him to represent the applicant (“the power of attorney”). The document was dated 16 August 2001 and indicated the handwritten name “Hussain Ali” together with the alleged signature of the applicant. It was certified by a notary public, Ms K.Ch (“the second notary public”).
11. During the hearing of 16 September 2004, Mr A.Y. raised the value of his claim to USD 8,000,000 (EUR 5,559,586). Neither the revised nor the original claim contained any reference to supporting documentation. The applicant’s alleged representative acknowledged the debt allegedly owed by the applicant to Mr A.Y. At the suggestion of Judge B., the parties agreed to settle the case. As per the friendly settlement agreement, the applicant’s alleged representative agreed to transfer the ownership of 90% of the shares in the tobacco company to Mr A.Y. The settlement was endorsed by the Isani-Samgori District Court in a decision of 16 September 2004 (“the decision of 16 September 2004”).
12. Judge B. issued a writ of enforcement immediately, despite the statutory appeal period of twelve days and on 17 September 2004 Mr A.Y. was listed in the Companies Register as the owner of 90% of the shares in the tobacco company.
13. On 18 September 2004 a purchase agreement was concluded between Mr A.Y. and the minority shareholder of the tobacco company (see paragraph 4 above) whereby the latter acquired the former’s shares in the tobacco company by means of cancelling an outstanding debt stemming from a contract concluded between them on 13 April 1994. The minority shareholder consequently became the 100% shareholder of the tobacco company.
14. The property in question became the subject of various subsequent transactions among third parties. In mid-February 2007 the applicant obtained an extract from the Companies Register revealing that the minority shareholder had sold 100% of shares in the tobacco company to a certain Coppela Ventures Ltd, a company registered in the British Virgin Islands.
3. Remedies pursued in respect of the Isani-Samgori district court decision of 16 September 2004
(a) Interlocutory appeal
15. On 6 October 2004 the applicant lodged an interlocutory complaint against the decision of 16 September 2004 on account of not having been summoned to the hearing and having been represented by an unauthorised person based on a forged power of attorney. He argued that he had become aware of the dispute only on 1 October 2004.
16. On 11 October 2004 the complaint was declared inadmissible by Judge B. The judge noted that there was no need to summon a party if a duly authorised representative were present. Additionally, the decision had become res judicata and no interlocutory appeal lay against it.
17. On 26 October 2004 the examination of the applicant’s appeal against the decision of 11 October 2004 was stayed on account of the non-payment of the court fees and he was asked to correct the error.
18. On 2 December 2004 the appeal was left unexamined owing to the failure to pay the court fees. The applicant lodged an interlocutory appeal against that decision arguing that he had given the necessary sum to his representative who, for an unknown reason, had apparently failed to proceed with the payment. It does not appear that the applicant instituted criminal proceedings against the representative on that account. The applicant requested that the decision of 2 December 2004 be quashed and that the examination of his complaint continue.
19. As a result of several interlocutory appeals and decisions, on 28 March 2005 the Supreme Court remitted the case to the appellate court to consider the admissibility of the applicant’s interlocutory appeal against the 2 December 2004 decision (see paragraph 18 above).
20. On 31 May 2005 the appellate court considered the interlocutory appeal lodged against its 2 December 2004 decision and found it inadmissible. The court noted that the applicant had failed to pay the court fees at the time his appeal was lodged; nor had he done so after receiving the court’s notice and a deadline to correct the procedural error. The reason advanced by the applicant to justify the failure, namely that he had personally paid the sum to the representative, who had allegedly failed to execute the payment, was not considered a valid justification for the procedural shortcoming.
21. On 3 November 2005 in a final decision the Supreme Court rejected the applicant’s complaint against the decision of 31 May 2005 as inadmissible. It reasoned that the applicant had not alleged a violation of procedural rules by the lower courts in rejecting his interlocutory appeal and that his argument concerning the alleged misappropriation of the court fees by his representative was not valid grounds to set the domestic courts’ decisions aside.
(b) Application to have the final decision of 16 September 2004 declared null and void on account of the court’s failure to ensure the attendance of a party
22. On 5 January 2005 the applicant lodged an application with the Isani-Samgori District Court to have the final decision of 16 September 2004 quashed and the proceedings reopened owing to the court’s failure to ensure the attendance of a party, as provided by Article 422 § 1 (b) of the Code of Civil Procedure (“the CCP”) (see paragraph 66 below). Relying on a private forensic report dated 4 December 2004 he further argued that the power of attorney presented by Mr T.M. had been forged.
23. On 10 January 2005 the first-instance court found the application inadmissible. It reasoned, among others, that the application to have the decision of 16 September 2004 quashed had been time-barred. It referred to the one-month time-limit under Article 426 § 1 of the CCP, which had started to run after the applicant had become aware of the grounds for his application. The court found that, in view of the applicant’s interlocutory proceedings on the matter instituted on 6 October 2004 (see paragraph 15 above), he had become aware of such grounds well before the lodging of his application on 5 January 2005.
24. On 4 February 2005 the applicant’s interlocutory complaint against the decision of 10 January 2005 was declared inadmissible.
25. On 23 May 2005 the Tbilisi Regional Court, sitting as a court of final instance, upheld the lower court’s findings and declared the application inadmissible as time-barred.
4. Other civil proceedings instituted by the applicant
(a) Application for the annulment of the purchase agreement of 18 September 2004 concluded between private parties
26. On 19 October 2004 the applicant lodged an application with the Tbilisi Regional Court for the annulment of the purchase agreement of 18 September 2004 by which Mr A.Y. had sold a 90% interest in the tobacco company to the minority shareholder in exchange for having his outstanding debt cancelled (see paragraph 13 above). He argued that Mr A.Y. had not been authorised to manage the property, which he had got hold of illegally, and that the impugned agreement had been based on a fraudulent power of attorney.
27. After a series of decisions on procedure, jurisdiction, and postponements, the court of first instance dismissed the application on 31 July 2008. It found that the criminal proceedings which had been terminated on 28 December 2006 (see paragraph 57 below) had not confirmed the forging of the impugned power of attorney. That decision of the prosecuting authorities had been upheld by the first-instance and appellate courts on 9 February and 9 March 2007 respectively (see paragraphs 60-61 below). Accordingly, the purchase agreement had been concluded by the lawful owner of the property [Mr A.Y.], rendering the applicant’s complaint unfounded. The applicant appealed on 23 September 2008.
28. On 3 October 2008 the applicant was asked by the appellate court to indicate the value of his claim and to pay the court fees accordingly. The latter requested that the value be designated as indeterminate. The appellate court indicated to the applicant that the interest underlying the impugned contract was determined and the court fees amounted to 4% of that sum, capped at 5,000 Georgian laris (GEL).
29. Eventually, on 5 December 2008, after sending the applicant a final warning concerning the consequences of non-payment of the court fees to the amount of GEL 5,000, and in the absence of further information from the applicant, the Tbilisi Court of Appeal left the appeal unexamined.
(b) Proceedings for damages
30. On 22 December 2005 and 9 November 2006 the applicant lodged two applications for damages against Mr T.M., Ms K.Ch., Mr A.Y., Mr D.L. (the latter’s lawyer), and the minority shareholder (Mr A.Ts.), as well as the tobacco company. It appears from the case-file and the applicant’s submissions before the Court, that these were subsequently abandoned in favour of his third application (see paragraphs 31-35 below).
31. On 22 December 2006, the applicant lodged a third application for damages in respect of pecuniary and non-pecuniary damage caused by criminal activities. The claim was based on the verdict of 13 April 2006 reached as a result of the plea-bargain agreement between Mr T.M. and Ms K.Ch. (see paragraph 53 below). The applicant applied for an exemption from the court fees under Article 46 § 1 (c) of the CCP (see paragraph 66 below).
32. On 4 February 2009 the Tbilisi City Court dismissed the application of 22 December 2006 owing to the absence of a final conviction in a criminal case, as the criminal proceedings had been reopened (see paragraphs 54-61 below).
33. On 4 May 2009 the Court of Appeal upheld the lower court’s decision on the same grounds.
34. On 6 July 2009 the Supreme Court asked the applicant to pay the court fees to have his appeal on points of law considered. On 15 July 2009 the applicant submitted to the court a statement claiming exemption from the court fees under Article 46 § 1 (c) of the CCP (see paragraph 66 below).
35. On 22 July 2009 the Supreme Court ruled that the applicant was not entitled to the exemption owing to the absence of a final conviction in a criminal case and ordered the applicant to pay the fees within the following ten days. It does not appear that the applicant attempted to either comply with that decision or challenge it. His appeal on points of law was therefore left unexamined owing to the failure to pay the court fees.
(c) Proceedings to reopen a civil case based on newly discovered circumstances
36. On 24 August 2006 the applicant applied to the Tbilisi City Court, asking it to quash the decision of 16 September 2004 and to reopen the civil proceedings under Article 423 §§ 1 (a) and (c) and 2 of the CCP (see paragraph 66 below) in view of newly discovered circumstances. As such, the applicant referred to the final judgment of 13 April 2006, reached as a result of the plea-bargain agreement between Mr T.M. and Ms K.Ch. in relation to the falsification of the power of attorney of 16 August 2001 that had enabled Mr T.M. to cede the applicant’s property on 16 September 2004 (see paragraph 53 below).
37. On 6 October 2008 the Tbilisi City Court dismissed the applicant’s application. It referred to the relevant criminal proceedings on the matter and reasoned that the decision to close the criminal case had become final on 9 March 2007 (see paragraph 61 below). Accordingly, considering the absence of a crime confirmed by a final judgment, the grounds to reopen the case under Article 423 §§ 1 (a) and (c) did not exist.
38. On 21 January 2009 the Tbilisi Court of Appeal upheld, in a final decision, the lower court’s finding on the same grounds.
5. Criminal proceedings concerning the alleged fabrication of the power of attorney
(a) First set of criminal proceedings
39. On 26 November 2004 the applicant lodged a criminal complaint with the finance police, the agency responsible for investigating financial crimes, and the Prosecutor General’s Office (“the PGO”). He reported that he had never given Mr T.M. any authority to represent him and that the power of attorney presented to the Isani-Samgori District Court on 16 September 2004 had been forged.
40. On 27 November 2004 the finance police opened a criminal case concerning the allegation of fraud and misappropriation of the applicant’s shares in the tobacco company. Various witnesses were questioned in the course of the preliminary investigation.
41. During the proceedings, several forensic reports were commissioned by the applicant, the investigating authorities, and the defendants concerning the validity of the power of attorney. Specifically, four forensic reports were carried out by State experts on the initiative of the investigating authorities, one alternative forensic report was implemented by a private expert institution at the request of the defendant, and another alternative expert report was carried out on the applicant’s initiative. The respective findings are set out below.
42. On 30 June 2005 an expert of the Ministry of the Interior issued an opinion (“the first State forensic report”), according to which neither the handwritten name “Hussain Ali” nor the signature made in the name of the applicant on the power of attorney of 16 August 2001 belonged to the applicant.
43. On 1 July 2005 an expert of the Ministry of Justice confirmed (“the second State forensic report”) the findings of the first forensic report. On the same day, the applicant was recognised as a victim and a civil claimant in the criminal case. The second notary public, Ms K.Ch., was charged and remanded. Mr T.M. was charged as well, but, as his whereabouts were unknown, he was declared wanted by the prosecution.
44. Between 19 and 23 August 2005 an alternative expert examination was carried out on Ms K.Ch.’s request. The private expert concluded (“the first alternative forensic report”) that whilst the signature did not belong to the applicant, the handwritten name “Hussain Ali” did.
45. On 25 August 2005 the investigator of the finance police in charge of the criminal case ordered another graphological examination of the signature by a panel of experts from the Ministry of Justice and the Ministry of the Interior in view of the findings reached by a private expert in the first alternative forensic report (see paragraph 44 above).
46. On 8 September 2005 the forensic examination was conducted by the panel of experts (see paragraph 45 above). The experts assessed the authenticity of signatures on the impugned power of attorney and the notary public’s related registry records retrieved from her office. They concluded (“the third State forensic report”) that whilst the signature did not belong to the applicant, the handwritten name “Hussain Ali” on both, the power of attorney and the notary’s registry records did.
47. On 14 September 2005 the PGO issued a ruling declaring the prosecution of Mr T.M. and Ms K.Ch. terminated and the criminal case closed in view of the inconclusive evidence. The ruling reasoned, inter alia, that the investigative steps which could have been taken in the course of investigation had been exhausted, as had the possibilities to collect any other evidence.
48. On 30 September 2005 the applicant appealed against the PGO’s ruling of 14 September 2005 and requested the resumption of the investigation which, according to the applicant, had been closed hurriedly and arbitrarily.
49. On 2 October 2005 a British forensic expert, following a request by the applicant, produced a forensic report concerning the impugned power of attorney of 16 August 2001 (“the second alternative forensic report”). It concluded that the applicant was not the author of the impugned signature dated 16 August 2001.
50. On 20 March 2006, after the applicant’s complaint of 30 September 2005 had been examined several times at various court instances, the Tbilisi City Court annulled the PGO’s ruling of 14 September 2005. It ordered the resumption of the criminal proceedings as the case had been closed hastily.
51. On 24 March 2006, another graphological expert report was ordered and carried out by the authorities. The experts concluded (“the fourth State forensic report”) that none of the signatures on the impugned power of attorney and in Ms K.Ch.’s notary logbook belonged to the applicant. The following day, Mr T.M. and Ms K.Ch. were once again charged with fraud.
52. According to the applicant, on 24 March 2006 the deputy head of the finance police initiated friendly settlement negotiations between the parties, which failed when the applicant refused to agree to the terms of the settlement. No evidence except for the applicant’s unanswered letter addressed to the finance police on that subject was submitted to the Court in support of this claim.
53. On 13 April 2006 the Tbilisi City Court approved a plea-bargain agreement between the PGO and Mr T.M. and Ms K.Ch. As a result of that judicial endorsement of the bargain, Mr T.M. and Ms K.Ch.’s guilt became confirmed without a full examination of the merits of the case (see paragraph 70 above). The latter were sentenced to a suspended five-year term of imprisonment, and fined GEL 10,000 (approximately EUR 5,000), in accordance with the terms of the agreement and Article 63 of the Criminal Code (see paragraph 69 above). The judgment became final after the statutory fifteen-day time-limit for appeals had elapsed.
(b) Second set of criminal proceedings
54. On 4 October 2006 the two convicted persons, Mr T.M. and Ms K.Ch., lodged an application with the Tbilisi City Court for the restoration of the statutory time-limit to appeal against the judgment of 13 April 2006 (see paragraph 53 above). They first argued that the judgment of 13 April 2006 had only been served on them on 3 October 2006. Furthermore, relying on Article 523 § 2 of the Code of Criminal Procedure providing for a restoration of a time-limit for appeal based on a valid excuse, they stated that the decision to confess as well as their decision not to appeal in due time had been made under duress as their family had received serious threats by some unidentified persons. In a decision dated 15 December 2006 the Tbilisi City Court reasoned that Mr T.M. and Ms K.Ch. had provided valid reasons for the restoration of the time-limit and allowed their application.
55. On 18 December 2006 Ms K.Ch. and Mr T.M. lodged an appeal against the judgment of 13 April 2006 (see paragraph 53 above) arguing that the plea-bargain agreement and the related confession had not been a result of their free will but of duress. They maintained that their family had received serious threats from unidentified persons.
56. On 20 December 2006 the Tbilisi Court of Appealgranted the application lodged by Ms K.Ch. and Mr T.M. The court heard Ms K.Ch. and Mr T.M. who noted that at the time of concluding the plea-bargain agreements they were detained and did not notify the investigative authorities about the threats, including one to kill Ms K.Ch.’s young daughter, due to the fear that their declaration would have resulted in the fatal outcome for their loved ones. The court reasoned that the plea-bargain agreement and the related confession had been obtained under duress and was to be declared invalid as not concluded voluntarily. The case was therefore returned to the PGO for examination.
57. On 28 December 2006 the PGO declared the prosecution of Mr T.M. and Ms K.Ch. terminated. It reasoned that the findings of the forensic examinations were not consistent as some of them pointed to the applicant’s involvement with the impugned document (see paragraphs 44 and 46 above). The PGO also relied on the statement of an interpreter who confirmed having witnessed the applicant’s signature on the document. Among other witnesses, one of applicant’s former representatives noted that the applicant was a fictitious owner of the shares, and that the real person behind him and the shares, Mr A.N. helped the applicant find the private expert who would easily confirm the applicant’s version of the events. Another witness, Mr. G.O., the applicant’s former public relations representative stated that he parted ways with the applicant after becoming aware of some shady arrangements between Mr A.N. and the applicant. He also noted that the applicant had never explicitly denied having signed the power of attorney and instead had mentioned that at the time he signed numerous documents. The PGO also noted the existence of several domestic court decisions and judgments issued between 2001 and 2004 in other sets of proceedings attesting to Mr T.M.’s uncontested representation of the applicant based on the impugned power of attorney as a strong indication of the validity of the document and the applicant’s awareness of its existence for three years before contesting it in October 2004. Finally, statements of the family members of Mr T.M. and Ms K.Ch. attesting to the pressure placed upon the latter by unidentified persons to confess to the crime (concerning which a separate investigation was pending) were noted. The prosecutor concluded that the body of evidence did not warrant a conclusion concerning the existence of a crime of fraud.
58. On 22 January 2007 the applicant lodged an interlocutory appeal (see paragraph 67 below) with the Tbilisi Court of Appeal against the reopening decision of 20 December 2006 (see paragraph 56 above). The appeal was rejected as inadmissible both by the Tbilisi Court of Appeal and the Supreme Court on 24 January and 13 February 2007 respectively on the grounds that the legislation did not provide for a victim’s right to challenge judicial decisions relating to a plea-bargain agreement concluded between the prosecution and an accused. The applicant’s constitutional appeal on this matter was rejected on 19 December 2008. The Constitutional Court reasoned that the legislature’s approach to limiting the right of victims to appeal against plea-bargain agreements was justified by the principle of efficient criminal justice and balanced by enabling the victim to challenge decisions of the investigating and prosecuting bodies before the judicial authorities, a right of which the applicant had availed himself.
59. On 24 January 2007 the applicant appealed against the PGO’s ruling to terminate the investigation.
60. On 9 February 2007 the Tbilisi City Court dismissed the applicant’s appeal. The court reasoned that no clear evidence had been obtained during the investigation that would confirm the guilt of the two accused. It further noted that:
“… the investigating authorities have correctly assessed the witness statements of [four persons] that confirmed that Mr Hussain Ali had been aware of the existence of the concerned power of attorney and that it had been signed by him. These arguments are further strengthened … by the decisions obtained by the investigating authorities from courts of various levels of jurisdiction, according to which Mr T.M. had participated in court hearings as Mr Hussain Ali’s representative based on the impugned power of attorney.”
61. On 9 March 2007 the Tbilisi Court of Appeal dismissed the applicant’s appeal of 11 February 2007 and upheld, at final instance, the lower court’s decision of 9 February 2007. The appellate court reasoned that:
“All possible investigative measures were carried out [by the investigating authorities], persons directly … or indirectly connected with the issuance of the impugned power of attorney were questioned. Several forensic examinations were carried out. … All evidence available in the case must be assessed in its entirety in the context of whether it is sufficient to reach a conclusion concerning a person’s guilt, [and] doubt concerning the authenticity and sufficiency of [such] evidence should be decided in favour of the accused …”
6. Disciplinary proceedings against Judge B. concerning the 16 September 2004 decision
62. On 10 January 2005 the applicant lodged a disciplinary complaint against Judge B. of the Isani-Samgori District Court with the High Council of Justice, accusing the latter of various violations of procedural law, including the failure to ensure the attendance of a party at the hearing on 16 September 2004.
63. On 11 August 2005 the Disciplinary Panel of the Disciplinary Council of the Common Courts of Georgia reached the following conclusions:
“Judge B. has violated Article 201 of the Code of Civil Procedure … as he did not serve the legal claim and the supporting documentation to Hussain Ali.
The Judge has also violated Article 70 [of the Code], given that Hussain Ali, the respondent in the case, was not informed by a court summons, of the time and venue of the hearing or of the decision to terminate the proceedings [as a result of a friendly settlement] … in contravention of Article 286 [of the CCP]…
… Regardless of the scope of the power of attorney, the respondent’s representative cannot procedurally turn into a respondent. …
Accordingly, the disciplinary panel considers that … Judge B. has committed a gross violation of law … owing to which damage has been inflicted upon a party inasmuch as the latter had been unable to participate in the hearing.
… Having considered the Judge’s actions … a strict punishment [such as the removal from the judicial panel] should be imposed.”
64. The decision became final after the statutory ten-day appeal time-limit elapsed.
65. The applicant not having been a party to the proceedings, he was neither informed of the decision nor given access to the relevant documents (see paragraph 67 below).
B. Relevant domestic law
66. The Code of Civil Procedure (1997), as it stood at the material time, provided as follows:
Article 46: Exemption from the payment of court fees
“1. [The following categories of persons] are exempted from the payment of court fees:
c) applicants in applications [in respect of damage] caused by a crime…”
Article 422: An application to declare a final judgment (decision) null and void
“1. A final judgment may be declared null and void following a request of a concerned party if: …
b) One of the parties or – if the party needed legal representation – their representative was not summonsed to the hearing.
2. An application to declare a final judgment null and void based on these grounds is inadmissible if the party could have presented them during the hearing at the courts of first instance, appeal, or cassation.”
Article 423: An application to reopen a case based on newly discovered circumstances
“1. A final decision may be subject to a reopening application based on newly discovered circumstances if:
a) it transpires that the document on which the decision was based had been fabricated; …
c) criminal behaviour of the parties and their representatives or of a judge is established…”
Article 426: Time-limits for lodging an application
“1. An application to declare a decision null and void … must be lodged within one month … [T]he renewal of this time-limit is not permitted.
2. The time-limit starts to run from the day on which a party becomes aware of the grounds for declaring a decision null and void …
3. If an application to declare a decision null and void is based on Article 422 § 1 (b), the time-limit starts to run when a party, or if the latter is legally incapable, their legal representative is informed of the decision. …”
67. Under Articles 414-420 of the Civil Procedure Code, an interlocutory appeal could be lodged regarding different types of decisions defined in the Code. Among others, Article 270 provided for the lodging of such an appeal against an immediate enforcement of a judgment. Under Article 68 of the Code a party could lodge an interlocutory appeal against a court’s refusal to reinstate statutory time-limits for appeal. Article 399 of the Code of Criminal Procedure (CCP) (1998) provided for a party’s right to lodge an interlocutory appeal against a court’s decision concerning the termination of a preliminary investigation.
68. The Act of 22 February 2000 on Disciplinary Proceedings against Judges of Ordinary Courts (“the Disciplinary Proceedings Act”), as it stood at the material time, provided that disciplinary proceedings against judges could be initiated, among others, on the basis of an application of an individual (Section 7) but the latter was neither a party to the proceedings (Section 39 (4)), nor were they notified of the outcome (Sections 58 and 73 (2)).
69. According to Article 63 of the Criminal Code (1999), it was the domestic courts’ discretion to impose a suspended sentence instead of imprisonment, with or without an additional sentence, including in relation to plea-bargain agreements.
70. Relevant legal provisions of the CCP concerning the nature of and procedure relating to the plea-bargain agreements were summarised by the Court in the Natsvlishvili and Togonidzev. Georgia judgment (no. 9043/05, §§ 49‑53, ECHR 2014 (extracts)). The acceptance of the plea bargain entailed the waiver of the rights to an ordinary examination of a case on the merits (see ibid., § 97).
71. Article 523 § 2 of the CCP as it stood at the material time, provided that a lapsed time-limit for appeal could be reinstated based on a “valid excuse.” Article 679(6) §§ 1 (c) and 3 provided that if a plea-bargain agreement was concluded under duress, the judgment approving the agreement was annulled and the case was returned to the preliminary investigation for examination. Article 679(7) § 3 provided that a review of a final judgment was allowed under common rules, based on newly discovered or newly revealed circumstances.
72. The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 that the respondent State had failed to protect his property from a fraudulent acquisition by private individuals, and that the related proceedings were excessively lengthy.
A. Article 6 of the Convention
73. The applicant complained under Article 6 § 1 of the Convention that the first-instance court decision of 16 September 2004, which had approved the subsequently disputed friendly settlement agreement, had been reached in violation of the principle of the equality of arms, and that the civil proceedings had been excessively lengthy, depriving him of the right to have his applications examined by a court. Article 6 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing within a reasonable time by [a] … tribunal …”
1. Equality of arms and the applicant’s attendance at the hearing of 16 September 2004
74. The Government submitted that the two remedies attempted by the applicant – lodging an interlocutory appeal against the decision of 16 September 2004 (“the first remedy”) on the one hand, and the application to have the final decision of 16 September 2004 declared null and void on account of not being summoned to the hearing (“the second remedy”) on the other – had been the relevant and effective remedies with respect to his complaint. Nevertheless, the applicant had failed to properly avail himself of these remedies owing to his failure to adhere to various procedural prerequisites. As concerns the findings of the disciplinary panel against Judge B., the Government maintained that the disciplinary proceedings, to which the applicant did not have access and which were limited in scope, could not be regarded as an adequate remedy for his complaint.
75. The applicant maintained with respect to the first remedy that the failure to pay the court fees should have been excused owing to the misconduct of his lawyer. As regards the time-limit for the second remedy, the applicant disagreed with the domestic courts’ interpretation of the law concerning its starting point. He further reiterated the findings of the disciplinary panel that the failure of Judge B. to issue a summons to the applicant as a party to the proceedings on 16 September 2004 damaged his interests.
76. The Court reiterates that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 72‑76, 25 March 2014, with further references). Thus, the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time‑limits (see ibid., § 72).
77. In the present case the Court is called upon to examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies (see Akdivar and Others v. Turkey, 16 September 1996, § 69, Reports of Judgments and Decisions 1996‑IV, and Saghinadze and Others v. Georgia, no. 18768/05, § 80, 27 May 2010). In this connection the Court takes note of the multi‑dimensional nature of the litigation pursued by the applicant at domestic level. Nevertheless, it reiterates that the only remedies that must be exhausted are those that relate to the alleged breaches that are at the same time available and sufficient (see Vučković and Others, cited above, § 71).
78. As the applicant alleged that the principle of equality of arms in civil proceedings had been compromised due to the first-instance court’s failure to ensure his attendance at the hearing of 16 September 2004, the Court will ascertain whether the applicant duly availed himself of the relevant and available domestic remedies in respect of this particular complaint. The Court observes with respect to the disciplinary proceedings initiated against the relevant judge which the applicant relied on in his submissions that the domestic legislation did not provide for the applicant’s right to access and participate in such proceedings or to be notified of their outcome (see paragraph 67 above). Consequently, these proceedings cannot be considered to be an effective remedy for the applicant’s complaint concerning the alleged violation of the principle of the equality of arms.
79. As regards the two sets of judicial proceedings instituted by the applicant in respect of his allegation concerning the domestic court’s failure to ensure his attendance at a hearing once he became aware of the existence of the impugned decision, the first was an interlocutory appeal (see paragraph 67 above) and the second remedy was based on Article 422 § 1 (b) of the CCP. The latter explicitly referred to a domestic court’s failure to ensure the attendance of a party at a hearing, and provided for the affected party’s right to have the impugned decision declared null and void on those grounds (see paragraph 66 above). The Court need not delve into the question of which of the two remedies was the more appropriate avenue of redress against the alleged error of the first-instance court as, despite instituting both sets of proceedings, the applicant failed to properly exhaust either of the remedies, as explained below.
80. With respect to the first remedy, the proceedings were not pursued to their completion as the applicant did not pay the court fees (see paragraphs 18-21 above). He alleged misconduct on the part of his representative but did not attempt to provide the domestic courts with any evidence to that end. It does not appear that the applicant instituted criminal proceedings against the representative or otherwise alerted the pertinent authorities about possible misappropriation of his money. Considering the assessment of the facts and the law on the matter by the relevant domestic courts, the Court does not find that the applicant was diligent in pursuing the first remedy.
81. As concerns the second remedy pursued by the applicant, the Court notes that his application was declared inadmissible by the domestic courts as time-barred. The courts found that the applicant had become aware of the impugned decision of 16 September 2004 at the latest on the date when he lodged his interlocutory appeal of 6 October 2004 and that the one-month time-limit provided in Article 426 § 1 of the CCP (see paragraph 66 above) had started to run from that point. Accordingly, the second remedy had not been exhausted owing to the applicant’s failure to comply with the relevant time-limit prescribed by domestic legislation.
82. In the light of the foregoing, the Court finds that the applicant cannot be deemed to have duly exhausted the relevant domestic remedies with respect to his complaint concerning an alleged violation of the principle of the equality of arms in view of his failure to comply with the formal requirements and time-limits laid down in the domestic legislation. It follows that the complaint must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
2. Length of the civil proceedings
83. The Government submitted that the applicant did not pursue the relevant proceedings with diligence.
84. The applicant maintained his arguments that the relevant civil proceedings had been excessively lengthy.
85. The Court reiterates that the reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant in the dispute (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 143, ECHR 2016 (extracts)).
86. The applicant’s complaint about the length of his civil litigation concerns three sets of proceedings: the application for the annulment of an agreement between private parties (see paragraphs 26-29 above) (“the first set of proceedings”), the applications for damages (see paragraphs 30-35 above) (“the second set of proceedings”), and the application to have the civil proceedings reopened (see paragraphs 36-38 above) (“the third set of proceedings”).
87. The first set of proceedings was abandoned by the applicant at the appellate level (see paragraphs 28-29 above). Similarly, the applicant did not pursue the second set of proceedings until their completion (see paragraphs 30-35 above). Consequently, the Court finds the applicant’s complaints concerning the length of the first two sets of proceedings must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
88. As concerns the third set of proceedings, the Court reiterates that, according to its established case-law, the Convention does not guarantee a right to have proceedings terminated by a final decision reopened (see, inter alia, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 44, ECHR 2015, with further references). It follows that the applicant’s complaint concerning the length of the proceedings relating to his reopening request 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.
B. Article 1 of Protocol No. 1 to the Convention
89. The applicant complained that the failure of the domestic court to ensure his attendance at the hearing of 16 September 2004 had resulted in the loss of his property. He also complained that the domestic investigative and judicial authorities had failed to redress an allegedly fraudulent acquisition of his property by private individuals. The applicant relied on Article 1 of Protocol No. 1 to the Convention which 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 subject 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 or to secure the payment of taxes or other contributions or penalties”
1. The parties’ submissions
90. The Government emphasised the private nature of the civil dispute that had resulted in the impugned decision of 16 September 2004 and submitted that the complaint fell outside the ratione materiae and ratione personae scope of Article 1 of Protocol No. 1 to the Convention. The State, according to the Government, had merely offered its judicial forum for the determination of a dispute between private parties. They further maintained that the applicant did not pursue the relevant remedies with diligence.
91. As concerns the criminal investigation relating to the allegedly fraudulent actions of private individuals with respect to the applicant’s property, the Government submitted that the applicant’s complaint was manifestly ill-founded as the Government had duly fulfilled its positive obligations to protect the applicant’s property by means of pursuing a comprehensive investigation which, eventually, did not establish a crime. The Government further noted that the finance police had not in any manner gone beyond their capacity to effectively investigate the allegations of a crime, and that the particular allegations of the applicant had been unsubstantiated.
92. The applicant reiterated his arguments with respect to the failure of a civil court to ensure his attendance at the hearing of 16 September 2004 raised in the context of the alleged violation of Article 6 of the Convention (see paragraph 73 above). As regards the criminal proceedings concerning the alleged crime of fraud, the applicant submitted that the authorities had not complied with their obligation to protect his property in view of their failure to establish a crime. He further submitted that owing to the participation of the finance police in friendly settlement negotiations between him and the opposing party, the Government had interfered in the investigation beyond its legitimate scope.
2. The Court’s assessment
(a) The civil court’s decision of 16 September 2004
93. The applicant’s complaint that the domestic court’s failure to ensure the applicant’s attendance as a party to the civil proceedings, in violation of the domestic legislation, had resulted in a violation of his property rights under Article 1 of Protocol No. 1 is closely linked to his complaint under Article 6 of the Convention considered above. In view of the inadmissibility of that grievance for the failure to properly exhaust domestic remedies (see paragraphs 76-82 above), the Court finds that this complaint is also inadmissible under Article 35 § 1 of the Convention for the non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4.
(b) Criminal proceedings concerning the allegation of fraudulent acquisition of the applicant’s property
94. The Court observes at the outset that the applicant’s argument concerning the Government authorities’ involvement in negotiations between private parties is not supported by the materials available in the case-file and does not lead to an inference that the involvement of the finance police, if any, in the negotiations between the private parties, had gone beyond their mandate to effectively investigate the crime. Accordingly, in view of the private nature of the dispute at the domestic level, the applicant’s complaint will be considered from the perspective of the State’s positive obligations under Article 1 of Protocol No. 1.
95. The Court reiterates that genuine, effective exercise of the right protected by Article 1 of Protocol No. 1 does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his or her effective enjoyment of his or her possessions (see Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII; Broniowski v. Poland [GC], no. 31443/96, § 143, ECHR 2004‑V; and Blumberga v. Latvia, no. 70930/01, § 65, 14 October 2008).
96. The nature and extent of the State’s positive obligations vary depending on the circumstances. Thus, in the case of Öneryıldız (cited above), the loss of the applicant’s possessions resulted from obvious negligence of the authorities in the face of a very dangerous situation. By contrast, where the case concerns ordinary economic relations between private parties such positive obligations are much more limited (see Kotov v. Russia [GC], no. 54522/00, § 111, 3 April 2012).
97. However, the Court has held that in disputes between private parties this positive obligation requires that property rights are sufficiently protected by law and that States are under an obligation to afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons (see, among other authorities, Kotov, cited above, §§ 113-114, with further references; Sovtransavto Holding v. Ukraine, no. 48553/99, § 96, ECHR 2002‑VII; and Dimitrova and Others v. Bulgaria (dec.), no. 54833/07, § 35, 3 November 2016).
98. Turning to the circumstances of the present case, the Court observes that the applicant did not dispute the availability of either civil or criminal remedies and indeed attempted to exhaust them. However, the civil remedies attempted by the applicant were not properly exhausted due to the latter’s non-compliance with the formal requirements and time-limits laid down in the domestic legislation (see paragraphs 79-82 and 93 above).
99. As regards a criminal remedy, an investigation was opened into the allegation of fraud immediately following the lodging of the applicant’s criminal complaint (see paragraphs 39-40 above). The applicant’s appeal against the prosecuting authorities’ initial decision to terminate the investigation was successful and the investigation was reopened (see paragraph 50 above). The Court notes the complex nature of the reopened criminal proceedings in view of the initial conclusion of the plea-bargain agreements reached between the prosecution and the persons implicated in the allegations of fraud (see paragraph 53 above), the subsequent allegations of coercion, and the reopening of criminal proceedings (see paragraphs 54‑55 above). The investigation was finally terminated on account of the inconclusiveness and the contradictory nature of the evidence against the accused. Among other evidence, the investigative authorities considered the existence of several domestic court decisions and judgments issued between 2001 and 2004 in other sets of civil proceedings attesting to Mr T.M.’s uncontested representation of the applicant based on the impugned power of attorney as a strong indication of the validity of the document and the applicant’s awareness of its existence for three years before contesting it in October 2004 (see paragraph 57 above).
100. The Court reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law and to establish the facts of the case. In each such instance, the Court’s role is confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see Petrol v. Ukraine (dec.), no. 62605/00, § 140, 25 March 2008, with further references). The Court will thus have particular regard as to whether the applicant was able to have his misgivings concerning the prosecuting authorities’ final decision to terminate the investigation duly considered by the domestic judicial authorities.
101. In this connection, the applicant’s appeal against the prosecuting authorities’ decision to terminate the investigation and close the case on account of their inability to establish a crime was subject to a judicial review at two levels of jurisdiction. The domestic courts referred to the inconsistent evidence available in the case-file (see paragraphs 57 and 60-61 above), and found that the inconclusiveness of the evidence had rightly been decided in favour of the accused. The applicant’s arguments were therefore dismissed on the grounds that any doubt must be resolved in favour of the accused (see paragraphs 60-61 above).
102. Accordingly, the applicant had uninhibited access to the domestic courts whereby he was able to have his arguments concerning the prosecuting authorities’ decisions duly heard and responded to (see paragraphs 50 and 60-61 above). He appears to have merely disagreed with the eventual outcome of those proceedings. The Court therefore finds that the positive obligation of the State under Article 1 of Protocol No. 1 to afford judicial procedures that offer the necessary procedural guarantees therefore enabling the domestic courts and tribunals to adjudicate effectively and fairly any property disputes between private persons has been complied with in the present case.
103. In the light of the foregoing, the applicant’s complaint under Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Complaint under Article 13 of the Convention
104. The applicant complained that he did not have an effective domestic remedy with respect to his claims. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
105. The Court reiterates that the provision in question applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V, and Knežević and Others v. Slovenia (dec.), no. 51388/13, § 34, 19 September 2017). Consequently, in the light of the Court’s aforementioned conclusions concerning the applicant’s complaints under Article 6 of the Convention and Article 1 of Protocol No. 1, it follows that this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. Other alleged violations of the Convention
106. The applicant complained under Article 1 of Protocol No. 1 of his inability, under the domestic legislation, to challenge the initial plea-bargain agreements reached between the prosecution and the individuals implicated in the allegations of fraud. He also complained, under Articles 3 and 14 of the Convention, about the negative outcome of the civil and criminal proceedings and alleged a possible discriminatory attitude by the authorities based on his nationality.
107. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
108. Accordingly, these complaints are manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 5 July 2018.
Claudia Westerdiek Angelika Nußberger