FIFTH SECTION
\nDECISION<\/p>\n
Application no. 43302\/08
\nVitali BERIA
\nagainst Georgia<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 12 June 2018 as a Committee composed of:<\/p>\n
Andr\u00e9 Potocki, President,
\nM\u0101rti\u0146\u0161 Mits,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 31 July 2008,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The 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.<\/p>\n 2.\u00a0\u00a0On 20\u00a0October 2008 the applicant\u2019s son and legal heir, Mr T. Beria, informed the Court that the applicant had died on 3\u00a0September 2008 and expressed the wish to pursue the case before the Court.<\/p>\n 3.\u00a0\u00a0The Georgian Government (\u201cthe Government\u201d) were represented by their Agents, most recently Mr\u00a0L. Meskhoradze, of the Ministry of Justice.<\/p>\n The circumstances of the case<\/p>\n 4.\u00a0\u00a0On 6 November 2001 an accident at a construction site caused a severe injury of the applicant\u2019s spine and a paralysis of his upper and lower extremities.<\/p>\n 5.\u00a0\u00a0On 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.<\/p>\n 6.\u00a0\u00a0On 11 March 2005 the applicant lodged an application with the first-instance court against several State institutions, including the State Social Insurance Fund (\u201cthe Social Fund\u201d) and the Ministry of Labour, Health and Social Affairs (\u201cthe Ministry of Health\u201d) 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\u00a0Georgian laris (GEL \u2013 approximately 125 Euros (EUR) at the time).<\/p>\n 7.\u00a0\u00a0On 3 October 2005 the first-instance court dismissed the applicant\u2019s 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.<\/p>\n 8.\u00a0\u00a0On 28 December 2006 the Court of Appeal upheld the lower court\u2019s findings and dismissed the applicant\u2019s request to have the services of a caregiver provided by the State.<\/p>\n 9.\u00a0\u00a0The 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.<\/p>\n 10.\u00a0\u00a0On 13 December 2007, the Supreme Court of Georgia granted the applicant\u2019s request and ordered the Ministry of Health to provide him with a caregiver.<\/p>\n 11.\u00a0\u00a0On 24 December 2007 the Supreme Court of Georgia issued the writ of execution.<\/p>\n 12.\u00a0\u00a0On 17 March and 20 May 2008 the Tbilisi Enforcement Bureau addressed the Ministry of Health with an enforcement request.<\/p>\n 13.\u00a0\u00a0On 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.<\/p>\n 14.\u00a0\u00a0On 24 September 2008 the interpretation request was rejected by the Supreme Court as unsubstantiated.<\/p>\n 15.\u00a0\u00a0The enforcement process was apparently discontinued due to the applicant\u2019s death on 3\u00a0September 2008.<\/p>\n COMPLAINTS<\/strong><\/p>\n 16.\u00a0\u00a0The applicant complained under Articles 6 \u00a7 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.<\/p>\n THE LAW<\/strong><\/p>\n 17.\u00a0\u00a0The applicant complained under Articles\u00a08 and 6\u00a0\u00a7\u00a01 of the Convention and Article\u00a01 of Protocol No.\u00a01 about the non-enforcement of the Supreme Court\u2019s judgment of 13 December 2007 granting his request to be provided with the service of a caregiver.<\/p>\n 18.\u00a0\u00a0The Government submitted that the applicant\u2019s son lacked standingto pursue the application before the Court after the applicant\u2019s death, and it was no longer justified to continue the examination of the relevant complaints. In particular, the applicant\u2019s 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 \u201cpossessions\u201d.<\/p>\n 19.\u00a0\u00a0The applicant\u2019s son did not respond to the Government\u2019s arguments.<\/p>\n 20.\u00a0\u00a0The 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\u2019s 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 C\u00e2mpeanu v. Romania [GC], no.\u00a047848\/08, \u00a7 97, ECHR 2014, with further references).<\/p>\n 21.\u00a0\u00a0In this connection, the Court has considered whether or not the persons wishing to pursue the proceedings were the applicant\u2019s close relatives (see Th\u00e9venon 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.\u00a016510\/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\u2019s heirs (see, inter alia, Ahmet Sad\u0131k v.\u00a0Greece, 15 November 1996, \u00a7 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, V\u00e4\u00e4ri 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).<\/p>\n 22.\u00a0\u00a0Separately, 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\u2019s death (see, Mikiyeva and Others v. Russia, nos.\u00a061536\/08 and 4 others, \u00a7 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, \u00a7\u00a7\u00a063-66, 13\u00a0November 2012).<\/p>\n 23.\u00a0\u00a0Turning 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.<\/p>\n 24.\u00a0\u00a0As concerns the nature of the rights at stake, the Court notes that the applicant\u2019s 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\u2019s son has no standing to pursue the complaint on the applicant\u2019s behalf and in accordance with Article 37 \u00a7 1 (c) of the Convention, it is no longer justified to continue examination of the application in respect of the applicant\u2019s complaint under Article 8 of the Convention.<\/p>\n 25.\u00a0\u00a0As concerns the complaints under Article 6 \u00a7 1 of the Convention and Article 1 of Protocol No. 1, they related to the delay of about nine months, until the applicant\u2019s death, in the enforcement of a final domestic court judgment granting the provision of the services of a caregiver. Even assuming that the applicant\u2019s son has standing to pursue these complaints, they are in any event inadmissible for the reasons set out below.<\/p>\n 26.\u00a0\u00a0The 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\u2019s 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, \u00a7\u00a7\u00a031\u201134, 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, \u00a7 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, \u00a7\u00a0170, 1 July 2014).<\/p>\n 27.\u00a0\u00a0Turning 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\u2019s interpretation concerning the particular modalities of enforcement (see paragraph\u00a013 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, \u00a7\u00a0173).<\/p>\n 28.\u00a0\u00a0It 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 \u00a7 1 of the Convention were breached on account of the delay of about nine months in the enforcement of a judgment in the applicant\u2019s 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 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n 29.\u00a0\u00a0Having regard to the Court\u2019s findings concerning the inadmissibility of the complaint under Article 6 \u00a7 1 of the Convention (see paragraphs\u00a027\u201128 above), the applicant\u2019s related complaint under Article\u00a01 of Protocol No.\u00a01 is also inadmissible as manifestly ill-founded. It must therefore be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Decides to strike the application out of its list of cases in respect of the applicant\u2019s complaint under Article 8 of the Convention;<\/p>\n Declares the remainder of the application inadmissible.<\/p>\n Done in English and notified in writing on 5 July 2018.<\/p>\n Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Andr\u00e9 Potocki
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n