Last Updated on July 7, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 43302/08
Vitali BERIA
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 31 July 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
FACTS
1. The applicant, Mr Vitali Beria, was a Georgian national, who was born in 1948 and lived in Tbilisi. He was represented before the Court by Mr P. Beria and Mr G. Mirtskhulava, lawyers practising in Tbilisi.
2. On 20 October 2008 the applicant’s son and legal heir, Mr T. Beria, informed the Court that the applicant had died on 3 September 2008 and expressed the wish to pursue the case before the Court.
3. The Georgian Government (“the Government”) were represented by their Agents, most recently Mr L. Meskhoradze, of the Ministry of Justice.
The circumstances of the case
4. On 6 November 2001 an accident at a construction site caused a severe injury of the applicant’s spine and a paralysis of his upper and lower extremities.
5. On 12 December 2001 the competent authorities certified that the applicant had a first-degree disability status, with a complete and permanent loss of autonomy. The document contained a note that the applicant needed a caregiver.
6. On 11 March 2005 the applicant lodged an application with the first-instance court against several State institutions, including the State Social Insurance Fund (“the Social Fund”) and the Ministry of Labour, Health and Social Affairs (“the Ministry of Health”) and requested to be provided with the services of a caregiver at the expense of the State. He also requested to be given a wheelchair, and a one-off financial compensation of 300 Georgian laris (GEL – approximately 125 Euros (EUR) at the time).
7. On 3 October 2005 the first-instance court dismissed the applicant’s request in relation to the service of a caregiver but ordered the award of a one-off compensation of GEL 300 and the provision of a wheelchair. As it appears from the case-files, the relevant authorities complied with the decision of the first-instance court on an unspecified date.
8. On 28 December 2006 the Court of Appeal upheld the lower court’s findings and dismissed the applicant’s request to have the services of a caregiver provided by the State.
9. The applicant argued both before the Court of Appeal and the Supreme Court that his wife had been impelled to abandon her job in view of his disability in order to provide him with the necessary services of a caregiver.
10. On 13 December 2007, the Supreme Court of Georgia granted the applicant’s request and ordered the Ministry of Health to provide him with a caregiver.
11. On 24 December 2007 the Supreme Court of Georgia issued the writ of execution.
12. On 17 March and 20 May 2008 the Tbilisi Enforcement Bureau addressed the Ministry of Health with an enforcement request.
13. On 13 June 2008 the Ministry of Health requested the Supreme Court to interpret its judgment of 13 December 2007 in respect of certain modalities relating to the enforcement of the judgment. The request was based on an argument that the legislation in force at the material time did not regulate any of the modalities relating to the provision of services of a caregiver by the State.
14. On 24 September 2008 the interpretation request was rejected by the Supreme Court as unsubstantiated.
15. The enforcement process was apparently discontinued due to the applicant’s death on 3 September 2008.
COMPLAINTS
16. The applicant complained under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the final domestic court judgment granting his request for the provision of services of a caregiver in respect of his disability.
THE LAW
17. The applicant complained under Articles 8 and 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the non-enforcement of the Supreme Court’s judgment of 13 December 2007 granting his request to be provided with the service of a caregiver.
18. The Government submitted that the applicant’s son lacked standingto pursue the application before the Court after the applicant’s death, and it was no longer justified to continue the examination of the relevant complaints. In particular, the applicant’s complaints related exclusively to the provision of the service of a caregiver and were, by essence, imminently personal and not transferrable in nature. The Government also submitted that the complaint under Article 1 of Protocol No. 1 was incompatible rationemateriaewith the provision in question as the service of a caregiver did not comprise a proprietary interest to constitute “possessions”.
19. The applicant’s son did not respond to the Government’s arguments.
20. The Court reiterates that in several cases in which an applicant died after having lodged an application, it took into account the intention of the applicant’s heirs or close members of his or her family to pursue the proceedings, provided that the persons concerned had a sufficient interest in the case (see, among other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014, with further references).
21. In this connection, the Court has considered whether or not the persons wishing to pursue the proceedings were the applicant’s close relatives (see Thévenon v. France (dec.), no. 2476/02, ECHR 2006-III). As a second criterion, the Court has examined whether the rights concerned were transferable (see Angelov and Angelova v. Bulgaria (dec.), no. 16510/06, 7 December 2010, with further references). The Court has continued the examination of cases involving pecuniary claims that were transferable to the deceased applicant’s heirs (see, inter alia, Ahmet Sadık v. Greece, 15 November 1996, § 26, Reports of Judgments and Decisions 1996-V). On the other hand, the Court has found that certain other rights, such as, among others, those guaranteed by Articles 3, 5, and 8 of the Convention were of an eminently personal and non-transferable nature (see, among other authorities, Vääri v. Estonia (dec.), no. 8702/04, 8 July 2008; Angelov and Angelova, cited above; and Babiyv. Ukraine (dec.) [Committee], no. 7001/06, 21 June 2016).
22. Separately, the Court has also considered that human-rights cases before the Court generally also have a moral dimension and persons close to an applicant may have a legitimate interest in seeing to it that justice is done even after the applicant’s death (see, Mikiyeva and Others v. Russia, nos. 61536/08 and 4 others, § 115, 30 January 2014). The Court has also considered whether the case concerned involved an important question of general interest transcending the person and the interests of the applicant (see, for example, Koryak v. Russia, no. 24677/10, §§ 63-66, 13 November 2012).
23. Turning to the circumstances of the present case, the Court notes that Mr T. Beria seeks to pursue the case concerning the alleged violation of the rights of his father, the original applicant. Thus, the first condition of close kinship is met.
24. As concerns the nature of the rights at stake, the Court notes that the applicant’s complaint under Article 8 of the Convention concerned the provision of services in relation to his disability and in that respect it was so closely linked to the person of the original applicant that it was of an eminently personal and non-transferable character. Consequently, the applicant’s son has no standing to pursue the complaint on the applicant’s behalf and in accordance with Article 37 § 1 (c) of the Convention, it is no longer justified to continue examination of the application in respect of the applicant’s complaint under Article 8 of the Convention.
25. As concerns the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, they related to the delay of about nine months, until the applicant’s death, in the enforcement of a final domestic court judgment granting the provision of the services of a caregiver. Even assuming that the applicant’s son has standing to pursue these complaints, they are in any event inadmissible for the reasons set out below.
26. The Court reiterates that the reasonableness of the delay in the enforcement of a binding judgment is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s behaviour and that of the competent authorities, and what was at stake for the applicant in a given case (see Raylyan v. Russia, no. 22000/03, §§ 31‑34, 15 February 2007, with further references). The Court has thus consistently held that a delay of less than one year in payment of a monetary judicial award was in principle compatible with the Convention, while any longer delay was prima facie unreasonable (see, among many others, Kosheleva and Others v. Russia, no. 9046/07, § 19, 17 January 2012). The application of the above-mentioned criteria of reasonableness to the enforcement of judgments ordering that specific action be taken by the State may trigger a different presumption (see Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, § 170, 1 July 2014).
27. Turning to the circumstances of the present case, the award of a monetary sum and a wheelchair was enforced immediately after the first-instance court judgment was delivered (see paragraph 7 above). As regards the award of the services of a caregiver, as it appears from the case files, it may have been the first of a kind and the relevant Government authority instituted separate proceedings to obtain the Supreme Court’s interpretation concerning the particular modalities of enforcement (see paragraph 13 above). In this connection, the Court has noted that domestic courts are better placed to ascertain the proper method of enforcement and to decide the issue of whether and when full and appropriate compliance with a judgment has been secured. In accordance with its established case-law, the Court requires that any dispute in that respect be first and foremost examined by domestic courts (see Gerasimov and Others, cited above, § 173).
28. It was while such proceedings were pending that the applicant died and the judgment in his favour was left unenforced. The Court does not consider that, in the particular circumstances of the present case, the requirements of Article 6 § 1 of the Convention were breached on account of the delay of about nine months in the enforcement of a judgment in the applicant’s favour, three months out of which separate proceedings concerning the interpretation request were pending before the Supreme Court. The complaint is therefore inadmissible as manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
29. Having regard to the Court’s findings concerning the inadmissibility of the complaint under Article 6 § 1 of the Convention (see paragraphs 27‑28 above), the applicant’s related complaint under Article 1 of Protocol No. 1 is also inadmissible as manifestly ill-founded. It must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases in respect of the applicant’s complaint under Article 8 of the Convention;
Declares the remainder of 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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