CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 janvier 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sB9F7F539 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sF3B96856 { width:11.87pt; display:inline-block } .sEC4A15D1 { width:193.45pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FOURTH SECTION DECISION Application no. 25177/05 Manana GIORGADZE against Georgia The European Court of Human Rights (Fourth Section), sitting on 26   January   2016 as a Committee composed of:   Krzysztof Wojtyczek, President,   Nona Tsotsoria,   Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 26 June 2005, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Manana Giorgadze, is a Georgian national, who lives in Tbilisi. She failed to indicate the date of her birth in the application form. The applicant was represented before the Court by Ms R. Gabodze, a lawyer practising in Tbilisi. 2.     The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice. A.     The circumstances of the case 3.     On 20 August 2000 the Tbilisi Regional Tax Office (“the Tax office”) dismissed the applicant from the position of a tax officer. The ensuing employment proceedings initiated by the applicant resulted in a final judgment of 22 December 2003 of the Supreme Court of Georgia which found the applicant’s dismissal to have been unlawful and ordered her reinstatement to the position in question. That judgment was fully enforced by the Tax office on 9 February 2004. 4.     On 16 February 2004 the applicant brought a new action against her employer, the Tax office, claiming a compensation for the loss of salaries during the period of her unlawful dismissal – from 20 August 2000 to 9   February 2004. 5.     Referring to the fact that, a tax officer’s basic pay rate and monthly bonuses corresponded to, respectively, 35 and 250 Georgian Laris ((GEL), 15 and 107 euros (EUR)), the applicant claimed an overall total of GEL   11,435 (EUR 4,860). 6.     By a decision of 9 July 2004, the Tbilisi Regional Court dismissed the applicant’s claim for the bonuses arrears, compensating only GEL   1,459   (EUR 627), which corresponded to the amount outstanding on the basis of her basic pay rate. Thus, relying on an Order of 23   October 2000 of the Minister of Public Revenues, the appellate court reasoned that monthly bonuses did not form part of a public servant’s official wage because they were funded not from the central State Budget, as required by Section 37 § 4 of the Act of 31 October 1997 on Public Service (“the Public Service Act”), but from local, ad hoc accounts of the Ministry of Public Revenues. 7.     On 17 November 2004 the Supreme Court, dispensing with an oral hearing, upheld, in written proceedings, the appellate decision of 9   July 2004 for the same reasons. 8.     Notably, the cassation court stated that the monthly bonuses could not be compensated to the applicant given that the source of their funding was not the central State Budget, as required by section 37 §§ 1 and 4 of the Public Service Act which defined the notion of a public servant’s wage, but the provisional ad hoc accounts established by Order no. 422 of the Minister of Public Revenues. Those special accounts were filled in with a certain percentage of proceeds resulting from the overall amount of all taxes and duties collected by the taxation authority in the course of the preceding fiscal year. 9.     A reasoned copy of the Supreme Court’s decision of 17   November 2004 was served on the applicant on 29 December 2004. B.     Relevant domestic law 1.     Act of 31 October 1997 on Public Service, as it stood at the material time 10.     The relevant provisions of Section 37 of the Act on Public Service read, as the material time, as follows: Section 37 §§ 1 and 4: Labour remuneration (wage) “1.     A public servant [...] has the right to receive labour remuneration (wage) throughout the period of his or her service. The basic pay rate payable for the position in question, monthly or seniority bonuses as well as any other rewards envisaged by law are to be counted towards a public servant’s labour remuneration. 4.     The funding source for public servants’ remuneration (wages) shall be the relevant budget. Cuts in the budget allocations shall not be a ground for reduction of public servants’ remuneration (wages).” 2.     The President’s Ordinance no. 401 of 5 May 2000 11.     The Presidential Ordinance contained several instructions to the Government concerning the pending reorganisation of the taxation authority. 12.     Thus, at paragraph 10 of that Ordinance, the President ordered the Minister of Public Revenues, the authority supervising the Tax office, to introduce, before 31 May 2000, the system of monthly bonuses payable to tax officers, in order “to secure socially the staff [...] and to provide them with additional pecuniary incentives”. The “special accounts” established within the Ministry under Article 270 of the Tax Code were to become the funding source for the payment of those bonuses. 3.     Order no. 422 of 23 October 2000 of the Minister of Public Revenues 13.     Order no. 422 was issued on the basis of paragraph 10 of the President’s Ordinance no. 401 of 5 May 2000 concerning the reorganisation of the taxation system (see paragraphs 12 and 13 above). 14.     Thus, the Order introduced the system of payment of monthly bonuses. The amounts of bonuses would vary in accordance with the difference in grades of the staff, and their source of funding would become the above-mentioned “special accounts” of the Ministry of Public Revenues (see paragraph 13 above). The funds accumulated on those accounts would represent a certain percentage from the overall annual amount of all taxes and duties collected by the tax authority during the preceding fiscal year. 15.     Order no. 422 was repealed, and the system of monthly bonuses thus discontinued, on 25 December 2003. COMPLAINTS 16.     Relying on Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1, the applicant complained about the outcome of the domestic proceedings. THE LAW 17.     The Government submitted that the monthly bonuses claimed by the applicant in the course of the domestic proceedings did not represent her “possessions” within the meaning of Article 1 of Protocol No. 1. She did not have “a legitimate expectation” to receive those bonuses as, following the domestic court’s reading of the relevant legal provisions, they did not constitute part of a civil servant’s official wage. The source of funding for those bonuses, as opposed to amounts payable under the basic pay rate, was not the central State budget but rather special ad hoc accounts established within the Ministry of Public Revenues. The Government concluded that the application was thus more of a challenge to the interpretation of the relevant domestic provisions by the domestic courts, and was for this same reason either manifestly ill-founded or incompatible ratione materiae with the invoked provisions of the Convention. 18.     The applicant disagreed. She argued that, irrespective of what was the source of the funding for the monthly bonuses, those bonuses formed part of a civil servant’s official remuneration within the meaning of Article   37   §§   1 and 4 of the Act on Public Service, and that the domestic courts had failed to read and apply correctly the relevant domestic law. She maintained that the courts’ above-mentioned failure amounted to an unjustifiable deprivation of her “possessions” within the meaning of Article   1 of Protocol No. 1 and a breach of fair trial safeguards under Article   6   §   1 of the Convention. 19.     The Court observes that the essence of the present application is the question of whether or not monthly bonuses payable to a tax officer constituted an inalienable part of the latter’s official wage. However, the very same question, being at the origin of the applicant’s court action for salary arrears, had been duly examined by the domestic courts within the context of the fully adversarial proceedings. The applicant had had ample opportunity to present her arguments concerning the interpretation of the relevant domestic provisions – notably the interplay between Section   37   §§   1 and 4 of the Act on Public Service Act – before all levels of the jurisdiction. However, the domestic courts, including the Supreme Court, the highest judicial body with the supreme authority to interpret domestic law, after having heard the applicant’s reiterated arguments on the matter, ruled that, in the light of the relevant domestic law, monthly bonuses could not be counted towards a tax officer’s official wage, according to Section 37 § 4 of the Act on Public Service Act, given that the source of their funding was not the central State Budget but was rather contingent on the existence of the provisional ad hoc accounts drawn from proceeds of all taxes and duties collected by the tax authority in the course of a preceding fiscal year (see paragraphs 7, 9, 13 and 15 above). 20.     The Court, not being a domestic judicial instance of “fourth instance”, is not in a position to overrule the Supreme Court’s reading of the domestic law, contrary to what the applicant’s calls for under Article   6   §   1 of the Convention (see, amongst many others, FC Mretebi v. Georgia , no.   38736/04, § 31, 31 July 2007). As regards the aspect of her same grievance under Article 1 of Protocol No. 1, the Court additionally notes that, even assuming that the applicant possessed arguable claim over the monthly bonuses in question, this cannot suffice as such to bring the object of her claim into the realm of protection afforded by Article 1 of Protocol   No.   1. 21.     Indeed, the existence of a “genuine dispute” or an “arguable claim” over a proprietary interest can only be regarded as a protectable “possession” within the meaning of Article 1 of Protocol No. 1 only where it has a sufficient basis in national law, for example where there is settled case ‑ law of the domestic courts confirming it (see, amongst many other authorities, Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004 ‑ IX). However, no such sufficient basis in the national law could be observed in the instant case. Thus, the Court, having regard to the Supreme Court’s unequivocal findings in the applicant’s case and being aware of its own subsidiary role, is precluded from taking any new interpretative stance over the same legal provisions, which would oppose that of the domestic courts. 22.     It follows that the application is manifestly ill-founded and must be rejected in accordance with 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 18 February 2016.   Fatoş Aracı   Krzysztof Wojtyczek Deputy Registrar   President