CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 13 mars 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC7411871 { margin-top:0pt; margin-left:21.25pt; margin-bottom:0pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFAEDCEA5 { margin-top:0pt; margin-left:46.35pt; margin-bottom:0pt; text-indent:-18pt; text-align:justify; font-size:10pt } .s16800832 { width:5.78pt; font:7pt 'Times New Roman'; display:inline-block } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDD0D2C94 { margin-top:0pt; margin-left:28.35pt; margin-bottom:0pt; text-indent:7.65pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDFAAA82A { margin-top:0pt; margin-left:46.35pt; margin-bottom:0pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sAEECD13 { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFE9E8889 { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.65pt; text-align:justify; font-size:10pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sBAD0D18F { width:1.87pt; display:inline-block } .sC9D6F765 { width:209.11pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } THIRD SECTION DECISION Application no. 44303/05 by Geronti NAPISHVILI against Georgia The European Court of Human Rights (Third Section), sitting on 13   March 2012 as a Committee composed of:   Ján Šikuta, President,   Nona Tsotsoria,   Mihai Poalelungi, judges, and Marialena Tsirli, Deputy Section Registrar, Having regard to the above application lodged on 19 November 2005, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Geronti Napishvili, is a Georgian national who was born in 1955 and lives in Mtskheta. He was represented before the Court by Mr M. Labadze, a lawyer practising in Tbilisi. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     In 1987 the applicant was sent by the Soviet Ministry of Defence to take part in the “liquidation” (clean-up) work after the nuclear accident at the Chernobyl nuclear plant in Ukraine. As a result of deterioration in his health arising from that event, the applicant was registered as Category 2 disabled, becoming entitled to various social benefits under the Law of Georgia on the Social Protection of Liquidators of Nuclear Emergencies (“the Law of 8 November 2000”). 4.     On 18 April 2003 the applicant, acting via his lawyer, instituted civil proceedings against the Ministry of Labour, Health and Social Affairs of Georgia (“the Ministry of Health”), seeking compensation for pecuniary and non-pecuniary damage in the amount of 250,000 United States dollars (USD). The applicant based his claim solely on the fact that he had been sent to the Chernobyl site, where he had been exposed to dangerous levels of radiation and as a result had developed an incurable disease caused by radiation. The applicant therefore requested USD 200,000 for health rehabilitation and USD 50,000 in compensation for non-pecuniary damage. 5.     In support the applicant cited section 10 of the Law of 8 November 2000, according to which the Ministry of Health is responsible for organising and supervising the provision of labour, health and social benefits to those involved in liquidation works after nuclear emergencies. At a later stage of the proceedings the applicant further substantiated his claim by citing Articles 317, 408 § 2, 409, 413 and 414 of the Civil Code of Georgia of 1997, which provide for compensation for pecuniary and non ‑ pecuniary damage. 6.     The applicant provided the trial court with medical documents stating that he had been diagnosed as suffering from, radiation injury, bone marrow hypoplasia (underdevelopment), leucopenia (a low level of white blood cells, which might be indicative of a viral infection or leukaemia), chronic polyarthritis (chronic inflammation of several joints), a chronic prostate condition, angiopathy of the thigh, chronic parodontosis, cardiomyodystrophy and several other diseases. 7.     At a hearing on 4 July 2003 the Tbilisi Regional Court, acting at the request of the Ministry of Health and with the consent of the applicant, designated the President of Georgia and the Ministry of Defence of Georgia as the proper respondents in the applicant’s case. The applicant’s request for the Ministry of Health to be engaged as a third party in the proceedings was dismissed by the court. 8.     According to the record of a hearing on 16 September 2003, the applicant reiterated his claim against the Ministry of Defence for damage suffered as a result of participation in the liquidation work and exposure to radiation in Chernobyl. The Tbilisi Regional Court explicitly enquired with the applicant whether he had any claims against the Ministry of Health and whether he was complaining about the lack of free medical care. In reply, the applicant reaffirmed that he had no claims against the Ministry of Health and that the issue of free medical care was of only secondary importance to him. He further maintained that he was relying on section 10 of the Law of 8 November 2000 merely to substantiate his claim for compensation for pecuniary and non-pecuniary damage. 9.     The Ministry of Defence, for its part, maintained that the Law of 8   November 2000 provided only for social benefits and did not envisage a legal basis for an award of damages. The Ministry further asserted that it could not be held responsible for the allegedly wrongful sending of the applicant to Chernobyl, as the Ministry of Defence of Georgia did not exist as such at the material time. 10.     On 25 September 2003 the trial court ordered a medical examination of the applicant, inquiring, inter alia, into any causal link between the applicant’s health problems and his work at the Chernobyl site, and into the type of medical treatment the applicant required in view of his current medical condition. The examination was commissioned from experts at a forensic examination centre. The trial court stayed the proceedings. 11.     By a letter of 27 February 2004 the head of the forensic examination centre informed the trial court that they were unable to perform the requested medical examination. It was stated in an attached letter that because of the applicant’s possible exposure to radiation, his medical check ‑ up should have been conducted in a specialised haematology and blood transfusion institution. 12.     On 27 April 2004 the trial court ordered a new medical examination of the applicant, this time assigning it to a haematology and blood transfusion institute, and stayed the proceedings. In July 2004 the applicant underwent several medical tests, on the basis of which the experts concluded that he was not suffering from radiation sickness as such. The report did not elaborate on the origin and nature of the applicant’s existing health problems, his current state of health or the treatment he required. 13.     The proceedings were resumed on 12 August 2004 when the applicant’s medical file, with a conclusion on his medical examination, was returned to the court. 14.     On 10 November 2004, the Tbilisi Regional Court dismissed the applicant’s claim as manifestly ill-founded. It referred to the applicant’s diagnosis of leucopenia and radiation injury and whilst distinguishing those conditions from radiation sickness and leukaemia, reasoned that there was no evidence to conclude that the applicant’s health had been damaged as a result of his participation in the liquidation work at the Chernobyl site. The court relied in this connection on the medical experts’ testimony, according to which radiation injury, as opposed to radiation sickness, did not require any treatment. Hence, the court concluded that there was no basis to award the applicant pecuniary damages. 15.     The Tbilisi Regional Court also dismissed the applicant’s claim for compensation for non-pecuniary damage, finding that the Civil Code of 26   December 1964, in force at the material time, did not recognise a right to compensation for non-pecuniary damage. 16.     In connection with the Law of 8 November 2000, the trial court concluded that the latter merely provided for various social benefits, which the applicant had already been awarded. 17.     On 14 December 2004 the applicant appealed against that decision to the Supreme Court of Georgia. He denounced the trial court’s failure to order a proper medical examination capable of establishing a causal link between his numerous diseases and the work at Chernobyl. He further challenged the trial court’s conclusion that there was no evidence to support his allegation that his health had been damaged as a result of his participation in the liquidation work, and also complained in this respect that the trial court had disregarded his numerous existing diseases. 18.     On 19 May 2005, the Supreme Court subscribing to the reasoning of the first-instance court dismissed the applicant’s appeal as unsubstantiated. The Supreme Court advanced two additional arguments in support of its decision. With respect to the Law of 8 November 2000, the court concluded that the latter merely provided for various types of social benefits and did not envisage a right to monetary compensation as such. Hence, according to the Supreme Court, the applicant could not have claimed compensation for pecuniary and non-pecuniary damage on the basis of this Law. As regards the Civil Code of Georgia of 1997, also cited by the applicant, the court held that the applicant’s action for pecuniary and non-pecuniary damage on that very basis was lodged out of time. The Supreme Court relied in this respect on Articles 128 and 1008 of the Civil Code of Georgia, which provide for a general ten-year statutory time-limit and a three-year statutory time-limit for claims for damages, respectively. B.     Relevant domestic law 19.     The Law of 8 November 2000 (as it stood at the material time) Section 1. The purpose of the law This law defines the legal and economic bases for the social protection of liquidators of emergencies at the Chernobyl atomic power station and other civil and military nuclear facilities (hereinafter “nuclear facilities”) and their families. ... Section 5. Social protection for those disabled as a consequence of their participation in the liquidation of emergencies at nuclear facilities Social protection for those disabled as a consequence of their participation in the liquidation of emergencies at nuclear facilities consists of: (a)     pension under the war disablement pension scheme; (b)     compulsory medical insurance ; Section 6. Social protection for liquidators of emergencies at nuclear facilities Social protection for liquidators of emergencies at nuclear facilities consists of: (a)     pension under the war pension scheme; (b)     compulsory medical insurance; ... Section 10. The organisation and supervision of labour, health and social protection for liquidators of emergencies at nuclear facilities and their families The Ministry for Labour, Health and Social Affairs shall be responsible for organising and supervising the allocation of labour, health and social benefits as provided by this law for liquidators of emergencies at nuclear facilities and to their families. 20.     The Civil Code of Georgia of 1997 Article 128. Concept; Types 1.     A statutory time-limit shall apply to the right to demand of another person that he or she perform or refrain from performing a certain action; 3.     The general statutory time-limit is ten years. Article 1008. The statutory time-limit for damages claims The statutory time-limit for damages claims arising from a tort is three years from the date the victim became aware of the harm or the identity of the person liable to compensate for the harm. COMPLAINTS 21.     The applicant complained under Article 6 § 1 of the Convention about the length of the proceedings. He further argued, relying on Article 1 of Protocol No. 1, that the refusal of the domestic courts to compensate him for the pecuniary and non-pecuniary damage allegedly caused by his participation in the liquidation work at Chernobyl amounted to a deprivation of his possessions. He also contended that the right to free medical care or indeed to compensation arising from the alleged failure to provide him with free medical care amounted to a possession for the purposes of Article 1 of Protocol No. 1, and that the failure of the domestic courts to grant him pecuniary and non-pecuniary damages in that respect also amounted to a deprivation of his possessions. THE LAW A.     Article 6 § 1 of the Convention 22.     The applicant complained about the length of the proceedings before the domestic courts. He submitted that he was a victim of a violation of Article 6 § 1 of the Convention, which provides:   “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 23.     The Court will assess the reasonableness of the length of the impugned proceedings in the light of the particular circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and that of the competent authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII). 24.     The applicant’s complaint relates to the length of the proceedings, which began on 18 April 2003 and ended on 19 May 2005. They therefore lasted two years and one month before courts at two levels of jurisdiction. The Court notes that the proceedings at issue were of some complexity, as they required the taking of an expert opinion, deciding on the issue of designation of a proper respondent and studying and analysing complex medical information. The Court cannot detect any particular delay for which the authorities could be held responsible. Moreover, the total duration cannot be considered excessive. The complaint under Article 6 § 1 of the Convention is therefore manifestly ill-founded and should be rejected under Article 35 §§ 3 and 4 of the Convention. B.     Article 1 of Protocol No. 1 to the Convention 25.     The applicant argued that the failure of the domestic courts to grant him pecuniary and non-pecuniary damages amounted to a deprivation of his possessions. He alleged in this connection a violation of Article 1 of Protocol No. 1, which reads, in the relevant part, as follows: “Every natural or legal person is entitled to peaceful enjoyment of his possessions. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law ...” 1.     Compensation arising from the applicant’s participation in the liquidation work at Chernobyl and ensuing damages 26.     The Court reiterates that applicants may allege a violation of Article   1 of Protocol No. 1 only in so far as the impugned decisions relate to their “possessions” within the meaning of that provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicants can argue that they have at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, among many other authorities, Kopecký v. Slovakia [GC], no. 44912/98, §   35, ECHR 2004 ‑ IX). An “expectation” is “legitimate” if it is based on either a legislative provision or a legal act bearing on the property interest in question (ibid., §§ 45-52 ). 27.     Turning to the circumstances of the present case, the issue to be determined by the Court is whether under Georgian domestic law the applicant can be said to have had a “legitimate expectation” of obtaining compensation for his participation in the liquidation works at the Chernobyl site or for the ensuing harm caused to him. 28.     Firstly, in connection with the Law of 8 November 2000, the Court considers that neither the purpose of the law nor its content support the contention that the applicant had a legitimate expectation of obtaining monetary compensation as such. The law is simply silent on this issue. Section 10 of the Law of 8 November 2000, which was extensively relied upon by the applicant in the domestic proceedings, cannot be interpreted as establishing a right to compensation for participation in the liquidation of consequences of nuclear emergencies as such or for any ensuing harm; all it provides for is the responsibility of the Ministry of Health for organising and supervising the allocation of various social benefits. Nor can other legal provisions of the Law of 8 November 2000 be understood in the Court’s view as providing the basis for the applicant’s “legitimate expectation” of compensation attracting the protection of Article 1 of Protocol No. 1. The Court subscribes in this respect to the reasoning of the domestic courts, according to which the Law of 8 November 2000 provides only for various types of social benefits and does not envisage a right to monetary compensation as such. 29.     Hence, the Court considers that Georgia acquired no obligation under the Law of 8 November 2008 to compensate liquidators of nuclear emergencies and the applicant cannot thus claim to have had a legitimate expectation of being entitled to compensation (see, mutatis mutandis, Klaus and Iouri Kiladzé v. Georgia , no. 7975/06, §§ 55-62, 2 February 2010; Sokolowski v. Poland (dec.), no. 39590/ 04, 7 July 2009; and Bata v. Czech Republic (dec.), no. 43775/05 , 24 June 2008). 30.     As regards the compensation claims under the Civil Code of 1997, the Court notes that the domestic decision to reject them as lodged out of time does not appear to have been arbitrary or manifestly unreasonable. The Supreme Court applied Article 1008 of the Civil Code, which states that a claim for damages is subject to a three-year statutory bar after the date on which the victim first knew about the damage or the authority in charge of it. As has already been noted above, the applicant in the domestic proceedings claimed to have suffered pecuniary and non-pecuniary damage as a consequence of his participation in the liquidation work at Chernobyl. The domestic courts thus correctly considered that the statutory time-limit had started to run in 1987, the year the applicant took part in the cleaning-up operation at Chernobyl, and hence found his claim for damages lodged on 18 April 2003 time-barred. 31.     The Court reiterates in this connection that no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Jantner v. Slovakia , no.   39050/97, §§ 29-33, 4 March 2003, and Kopecký , cited above , § 50). 32.     Having regard to all the above-mentioned, the Court considers that this part of the complaint based on Article 1 of Protocol No. 1 is incompatible ratione materiae and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     Right to free medical care and compensation stemming from the alleged failure to provide the applicant with free medical care 33.     The applicant further argued that the right to free medical care or indeed to compensation arising from the alleged failure to provide him with the free medical care constituted a possession within the meaning of Article   1 of Protocol No. 1, and that the failure of the domestic courts to grant him pecuniary and non-pecuniary damage in that respect also amounted to a deprivation of his possessions. 34.     The Court reiterated that the rule of exhaustion of domestic remedies requires in principle that the complaints intended to be made subsequently at the international level should have been aired before the domestic authorities, at least in substance and in compliance with the formal requirements laid down in domestic law (see, amongst many others, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III). According to the case file, the applicant did not argue in the proceedings before the domestic courts the issue he now raises with the Court concerning the unavailability of free medical care and the right to pecuniary and non-pecuniary damage arising therefrom. The Court observes that the sole objective of the applicant in the domestic proceedings consisted of claiming compensation for the pecuniary and non-pecuniary damage allegedly caused him by his participation in the liquidation work at Chernobyl. 35.     This conclusion is supported by the content of the applicant’s complaints at both levels of jurisdiction, as well as by the arguments he voiced during the court proceedings. Hence, at neither of the hearings did the applicant complain that the relevant authorities had failed to provide him with free medical care in general, or specific medical treatment in particular. Quite to the contrary, when asked about this matter at the hearing of 16   September 2003, the applicant explicitly confirmed that he had no claims against the Ministry of Health and that the issue of compulsory medical insurance was of only secondary importance to him. 36.     The Court thus finds that this part of the application should be rejected for failure to exhaust the available domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Marialena Tsirli   Ján Šikuta Deputy Registrar   President