KERDIKOSHVILI v. GEORGIA (European Court of Human Rights)

FIFTH SECTION
DECISION

Application no. 35868/10
Balo KERDIKOSHVILI
against Georgia

The European Court of Human Rights (Fifth Section), sitting on 12 June 2018 as a Committee composed of:

André Potocki, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 3 June 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Balo Kerdikoshvili, is a Georgian national who was born in 1948 and lives in Gori. He was represented before the Court by Ms T. Abazadze of the Georgian Young Lawyers Association (GYLA) and Mr J. Clifford, Ms J. Gavron, Mr V. Grigoryan, Mr P. Leach, Ms R. Ramezaite, and Ms J. Sawyer of the European Human Rights Advocacy Centre (EHRAC).

2.  The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.

The circumstances of the case

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  On 24 March 2007 the applicant purchased a large amount of alcohol valued at 77,161 Georgian laris ((GEL), approximately 34,928 euros (EUR)) with an intention to resell it. The Financial Police seized the merchandise while it was being transported and transferred it for storage to a warehouse in Gori, pending the determination of the legality of the applicant’s purchase. He was fined by the Gori Tax Inspection of the Revenue Service under the Ministry of Finances. The applicant’s appeal against the latter was granted and the Gori Tax Inspection was ordered to return the applicant’s possessions. The judgment was upheld by the courts of appeal and cassation and became final on 10 September 2008.

5.  The applicant’s request to execute the judgment was refused by the Gori Tax Inspection on account of the alleged looting of the warehouse during the August 2008 armed conflict.

6.  On 21 April 2009 the applicant instituted civil proceedings to recover pecuniary damages related to the loss of his merchandise. His requests to be exempted from payment of the court fees on the grounds of his difficult financial situation were repeatedly rejected.

7.  On 1 December 2011 the civil proceedings instituted by the applicant were discontinued on the grounds that the applicant had failed to pay the court fees.

COMPLAINTS

8.  The applicant complained under Article 6 § 1 of the Convention about an impediment in his right of access to a court as a result of which he had been unable to recover his possessions in violation of Article 1 of Protocol No. 1 to the Convention.

THE LAW

9.  The Government submitted that the present application had to be rejected as an abuse of the right of application because the applicant had knowingly failed to provide decisive facts for the examination of the case. In particular, the Government informed the Court that on 18 June 2012 the applicant instituted a new set of compensation proceedings against the Revenue Service as a result of which he successfully recovered, in full, the damages related to the loss of his merchandise. The final decision of the Supreme Court dated 13 February 2014 was executed on 18 September 2014 whereby GEL 77,161 (approximately EUR 34,928) was transferred to the applicant’s bank account. The applicant’s failure to inform the Court about these proceedings amounted, in the Government’s view, to an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention.

10.  The applicant, in reply, admitted not having informed the Court about the developments in his case. He argued that the oversight was attributable to his representative and that in any event, the amount of compensation awarded by the national courts was not sufficient to fully reimburse the damage suffered in view of the alleged loss of income he had sustained. He further submitted that the application was not inadmissible insofar as it concerned his right of access to a court under Article 6 § 1 of the Convention.

11.  The Court reiterates that in general terms any conduct on the part of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and that impedes the proper functioning of the Court, or the proper conduct of the proceedings before it, constitutes an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, §§ 62 and 65, 15 September 2009).

12.  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, for instance, Hadrabova v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007). 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 Gross v. Switzerland [GC], no. 67810/10, § 28, 30 September 2014).

13.  Turning to the circumstances of the present case, the Court notes that the applicant complained before the latter about his inability to recover his possessions on account of the domestic courts’ refusal to consider his claim without him paying the court fees. Therefore the question of whether the domestic courts enabled the applicant to recover his possessions constitutes the core aspect of his complaints before the Court. Against this background and as it appears from the Government’s submissions, which the applicant did not contest, the new set of compensation proceedings offered the applicant an uninhibited access to a court, the court fees were borne by the respondent party, and he recovered the full value of his merchandise.

14.  The applicant failed to furnish any valid, factually corroborated explanation as to why he did not inform the Court of these very significant developments concerning his application before the Court. While it is true that those new proceedings were initiated after the applicant had submitted his application before the Court, it has to be noted that the application was communicated to the parties on 25 April 2016 that is almost two years after the Supreme Court had issued its final decision on the matter and a year and a half since its full enforcement. The applicant thus failed to update the Court, in line with Rule 47 § 6 of the Rules of Court, about major developments regarding his case.

15.  Having regard to the importance of that information for the proper determination of the present case, the Court finds that the either deliberate or negligent conduct of the applicant was contrary to the purpose of his right of individual application as provided for in Article 34 of the Convention (compare, amongst many other authorities, with Stojnić v. Bosnia and Herzegovina (dec.), no. 24652/09, § 23, 6 October 2015; S.C. S.E.A.C.I.D. S.R.L. v. Romania (dec.) [Committee], no. 55365/09, §§ 24-26, 21 February 2017; and Selina v. Lithuania (dec.) [Committee], no. 17969/10, §§ 34‑35, 5 September 2017).

16.  The application must accordingly be rejected as abusive, pursuant to 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.

Milan Blaško                                                                      André Potocki
Deputy Registrar                                                                       President

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