FIFTH SECTION
\nDECISION<\/p>\n
Application no. 22715\/07
\nTamaz ILIASHVILI
\nagainst Georgia<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 9\u00a0October\u00a02018 as a Committee composed of:<\/p>\n
Andr\u00e9 Potocki, President,
\nM\u0101rti\u0146\u0161 Mits,
\nGabriele Kucsko-Stadlmayer, judges,<\/p>\n
and Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 30 April 2007,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 15 September 2016 and 17\u00a0January 2017 requesting the Court to strike the application out of the list of cases and the applicant\u2019s reply to that declaration,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
FACTS AND PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The 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\u00a0L. Mukhashavria, a lawyer practising in Tbilisi.<\/p>\n 2.\u00a0\u00a0The Georgian Government (\u201cthe Government\u201d) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0The facts of the cases, as submitted by the parties, may be summarised as follows.<\/p>\n A.\u00a0\u00a0Domestic proceedings<\/strong><\/p>\n 4.\u00a0\u00a0The 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\u2019 term of office on 28 September 2000.<\/p>\n 5.\u00a0\u00a0On 12 July, 31 August and 19 September 2005 the High Council of Judiciary launched, on the basis of complaints addressed under Section 6\u00a0(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.<\/p>\n 6.\u00a0\u00a0By a decision of 4 August 2006, the Disciplinary Board of Courts of Common Jurisdiction found the applicant liable for repeated breaches of professional duties\u00a0under Section 2 (2) (a) of the Act on Disciplinary Liability of Judges \u2013 \u201cgross and\/or multiple violation of law\u201d \u2013 and imposed upon him the sanction of dismissal from office, as provided for by Section\u00a04\u00a0(1) of the same Act (see paragraph 16 below).<\/p>\n 7.\u00a0\u00a0The 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.<\/p>\n B.\u00a0\u00a0Proceedings before the Court<\/strong><\/p>\n 8.\u00a0\u00a0On 6 October 2015 the Court decided to give notice of the application to the Government under both civil and criminal limbs of Article 6 \u00a7 1 and under Article 7 of the Convention.<\/p>\n 9.\u00a0\u00a0After the failure of attempts to reach a friendly settlement, by letters of 15 September 2016 and 17\u00a0January 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.<\/p>\n 10.\u00a0\u00a0Notably, after having acknowledged a violation of Article 6 \u00a7 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\u00a05,000 (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.<\/p>\n 11.\u00a0\u00a0The Government also submitted that, since the legal ground for the applicants\u2019 disciplinary sanction \u2013 Section 2 (2) (a) of the Act on Disciplinary Liability of Judges \u2013 had been repealed by Parliament of Georgia on 27 March 2012, the applicant became entitled, as of 1\u00a0August 2014, to apply for another judicial office in the country (see paragraphs\u00a018\u00a0and 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.<\/p>\n 12.\u00a0\u00a0In the light of the above considerations, the Government requested the Court to strike the relevant complaint out in accordance with Article\u00a037of the Convention.<\/p>\n 13.\u00a0\u00a0By 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\u2019s declaration did not constitute an adequate redress for the distress and anxiety that had been caused to him by the arbitrary disciplinary proceedings.<\/p>\n C.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 1.\u00a0\u00a0As the law on disciplinary liability of judges stood in 2005-2006<\/p>\n 14.\u00a0\u00a0Section 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 \u2013 \u201cgross and\/or multiple violation of law committed during the adjudication of a matter in court\u201d.<\/p>\n 15.\u00a0\u00a0Section 2 contained a further comment, which read as follows:<\/p>\n \u201cA 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.<\/p>\n If misinterpretation and misapplication of law has been prompted by the judge\u2019s inner faith, it shall not be considered as \u2018a gross and\/or multiple violation of law\u2019.\u201d<\/p>\n 16.\u00a0\u00a0Section 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.<\/p>\n 17.\u00a0\u00a0Pursuant 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).<\/p>\n 2.\u00a0\u00a0Subsequent amendments to the law on disciplinary liability of judges<\/p>\n 18.\u00a0\u00a0On 27 March 2012 validity of Section 2 (2) (a) of the Act of 23\u00a0February 2000 on Disciplinary Liability of Judges was repealed.<\/p>\n 19.\u00a0\u00a0Furthermore, 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).<\/p>\n THE LAW<\/strong><\/p>\n 20.\u00a0\u00a0The applicant complained under both civil and criminal limbs of Article 6 \u00a7 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 \u2013 Section 2 (2) (a) of the Act on Disciplinary Liability of Judges \u2013 had lacked the requisite precision, clarity and foreseeability. The cited provisions read, in their relevant parts, as follows:<\/p>\n Article 6<\/p>\n \u201c1.\u00a0\u00a0In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing …\u201d<\/p>\n Article 7<\/p>\n \u201c1.\u00a0\u00a0No 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.\u201d (…)<\/p>\n A.\u00a0\u00a0As regards the complaint lodged under the civil limb of Article\u00a06\u00a0\u00a7\u00a01 of the Convention<\/strong><\/p>\n 21.\u00a0\u00a0The Court reiterates that Article\u00a037 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\u00a037\u00a0\u00a7\u00a01\u00a0(c) enables the Court in particular to strike a case out of its list if:<\/p>\n \u201cfor any other reason established by the Court, it is no longer justified to continue the examination of the application\u201d.<\/p>\n 22.\u00a0\u00a0In certain circumstances, it may strike out an application under Article\u00a037\u00a0\u00a7\u00a01\u00a0(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.<\/p>\n 23.\u00a0\u00a0To 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.\u00a0Turkey (preliminary objections) [GC], no. 26307\/95, \u00a7\u00a7\u00a075\u201177, ECHR\u00a02003-VI; WAZA Sp. z o.o. v. Poland (dec.), no.\u00a011602\/02, 26\u00a0June\u00a02007, and Sulwi\u0144ska v. Poland (dec.), no.\u00a028953\/03, 18\u00a0September\u00a02007).<\/p>\n