CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 22 septembre 2022

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GEORGIA (Application no. 55949/10)           JUDGMENT   This version was rectified on 16 November 2022 under Rule 81 of the Rules of Court.   STRASBOURG 22 September 2022       This judgment is final but it may be subject to editorial revision. In the case of Chakvetadze v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström , President,   Lado Chanturia ,   Arnfinn Bårdsen , Judges, and Martina Keller, Deputy Section Registrar , Having regard to: the application (no.   55949/10) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Zurab Chakvetadze (“the applicant”), on 9 September 2010; the decision to give notice to the Georgian Government (“the Government”) of the complaints under Article   6 § 1 of the Convention and Article   1 of Protocol No.   1 and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 1 September 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present application principally concerns the applicant’s complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 in respect of the delay in the enforcement of a judgment in his favour. THE FACTS 2.     The applicant was born in 1948 [1] and lives in Tbilisi. He was represented by Mr I. Kandashvili, a lawyer practising in Tbilisi. 3.     The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On 25 December 2008 police officers stopped the applicant in a street in Tbilisi and conducted a body search. According to the search report, a tablet of Subutex (the brand name for an opioid called buprenorphine) and a bullet were seized from the applicant. That same day, following a search in the applicant’s apartment, police found heroin, a bullet and cash in the amount of 230,050 United States dollars (USD). The cash was seized as evidence and deposited with the National Bank of Georgia. The applicant was charged with unlawful acquisition and possession of narcotic substances and ammunition. 6 .     On 23 September 2009 the Tbilisi City Court acquitted the applicant on the heroin charge and convicted him of unlawful acquisition and possession of narcotic substances and ammunition in so far as the Subutex tablet and the bullet (see the previous paragraph) were concerned. He was sentenced to one year’s imprisonment and a fine in the amount of 352,000 Georgian laris (GEL – approximately USD   212,385). As regards the cash seized from his home (USD   230,050), the applicant submitted during the proceedings, relying on various witnesses, that part of it – USD   70,000 – had been sent to him by a friend based in the United States for safekeeping and another part – USD   150,000 – had been given to him by a friend with the aim of starting a business venture. The remaining sum of USD   10,050 had constituted his personal savings. Taking note of those submissions and the relevant witness statements but without elaborating on the question of the alleged shared ownership of the seized cash, the trial court noted that the cash was not linked to the criminal proceedings against the applicant and ordered its return to him, unless he wished to use it for paying the criminal fine. 7 .     On 4 December 2009 the Tbilisi Court of Appeal stated that the purpose of the sentence would be best served by maintaining only the criminal fine of GEL   352,000 (approximately USD   212,385) that had been imposed by the lower court. It ordered the applicant’s immediate release. The Supreme Court rejected an appeal on points of law by the applicant as inadmissible on 12   March 2010. 8 .     On 14   April 2010 the Tbilisi Court of Appeal issued two writs of enforcement. The first one concerned the criminal fine imposed on the applicant, while the second one related to the return by the police of the cash seized during the search of the applicant’s apartment. The latter writ of enforcement was forwarded to the relevant police department. On the same day the appellate court informed the applicant that the police had been instructed to enforce the decision in so far as the order relating to the return of the cash was concerned. 9 .     On 25   April 2010 the National Bureau of Enforcement invited the applicant to voluntarily pay the criminal fine (see paragraph   7 above), together with the fee for enforcement, set at a flat rate of 7% of the enforceable amount. Thus, the applicant was to pay GEL   24,640 (approximately USD   14,867) as the enforcement fee. On 30   April 2010 the applicant gave a certain J.Kh. a power of attorney instructing the latter to (a)   receive, as per the writ of enforcement issued by the Tbilisi Court of Appeal, the money seized from the applicant’s apartment; (b)   transfer USD   220,000 to the bank accounts of the individuals noted by the applicant to have been the owners of the part of the seized cash (see paragraph   6 above); and (c)   use the remaining USD   10,050 to partly cover the criminal sanction imposed on the applicant. J.Kh.’s request addressed to the investigator based on the mentioned power of attorney was apparently left unanswered. On 3   May 2010, taking the view that the applicant had failed to pay the fine voluntarily, the National Bureau of Enforcement requested him to submit a list of all his assets to commence the compulsory execution of the judgment. On 7   May 2010 the applicant replied noting that he had not yet received the money seized from his apartment. Reiterating his submissions concerning the shared ownership of the cash (see paragraph   6 above), he gave details of bank accounts of individuals he claimed were the owners of the respective sums, and stated that the enforcement bureau could proceed with the partial enforcement of the criminal sanction in respect of his own share of the seized cash (USD   10,050). 10.     On several occasions in May 2010 the applicant applied to the police, in person and in writing, requesting them to comply with the writ of enforcement issued by the Tbilisi Court of Appeal and to return the seized cash. He complained to the Tbilisi City prosecutor about the delay in enforcement. It does not appear that the applicant received a response to either of his requests. 11 .     On 30 November 2011 the police applied to the National Bank of Georgia, requesting that the seized cash be released to them. The amount in question was returned to the police on the same day. The police then asked the applicant to go to the police station to receive the cash. Once the report on the return of the cash was signed by the applicant, a bailiff of the enforcement bureau appeared at the station and seized the entire amount of the cash, for the purpose of enforcing the criminal fine and the related enforcement fee (see paragraph   9 above). The applicant claimed before various domestic authorities that the cash was never returned to him, physically, before its seizure by the bailiff. The excess amount of GEL   4,714 (approximately USD   2,800) which remained after the payment of those sums was returned to the applicant on 4   February 2012, following several requests made by the applicant to that effect. The alleged owners of the part of the cash (see paragraphs   6 and   9 above) do not appear to have complained regarding the use of the seized cash for the payment of the criminal fine and the related enforcement fee. 12 .     On 31 December 2011 the applicant initiated proceedings against the National Bureau of Enforcement, challenging the enforcement of the criminal fine against him. Among other things, he stated that the enforcement of the final judgment in his favour had been delayed for almost two years. While it was seemingly finally enforced on 30   November 2011, that had been a sham transaction. In particular, while the applicant was made to believe that the due sum was being finally returned to him, right after he signed the relevant report and before actually taking hold of the seized cash, the enforcement bureau officials burst in the room, seizing the sum. In protest, he refused to sign the relevant report in respect of the compulsory enforcement of the criminal fine. The applicant stated that he had been unable to pay the criminal fine voluntarily because of the delay in the return of the seized cash to him. He also alleged that the imposition of a 7% enforcement fee had been unlawful and unfair, given that his inability to pay the fine voluntarily had been a direct result of the authorities’ failure to return to him in due time the cash seized from his home. On 27   April 2012 the Tbilisi City Court rejected the applicant’s claim as unsubstantiated. The court explained that, pursuant to section   38 of the Enforcement Proceedings Act of 1999 (see paragraph   13 below), payment of the impugned enforcement fee had been required from the moment the applicant was presented with the relevant writ of enforcement in April 2010 (see paragraph   9 above). Therefore, there had been no legal basis to annul that fee. The applicant appealed, additionally arguing that the time-limit for voluntarily complying with the enforcement writ issued in respect of the criminal fine must have started to run from 30   November 2011 (the date when the seized cash was formally returned to him). The Tbilisi Court of Appeal reviewed the lower court’s reasoning and the applicant’s arguments and upheld the Tbilisi City Court’s findings in full on 4 July 2012. On 11 February 2013 the Supreme Court rejected an appeal on points of law by the applicant as inadmissible. RELEVANT LEGAL FRAMEWORK 13 .     The Enforcement Proceedings Act of 16 April 1999, as in force at the material time, read in its relevant parts as follows: Section 38 “(1)     The fee for the enforcement (hereinafter ‘the fee’) of decisions given by courts or other authorised bodies [or] officials is a compulsory payment for the services of the National Bureau of Enforcement (inclusive of value-added tax) which shall be deposited in the account of the National Bureau of Enforcement. ... (11)     The fee shall not be collected in advance ... In the enforcement of criminal fines ... the fee shall be 7% of the enforceable amount ..., which shall be charged to the debtor upon commencement of the enforcement proceedings.” THE LAW ALLEGED VIOLATION OF ARTICLE   6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 14 .     The applicant complained that there had been an unjustifiably lengthy delay by the authorities in the enforcement of a final judgment in his favour, in breach of his right of access to a court guaranteed by Article   6 §   1 of the Convention and of his right to the peaceful enjoyment of his possessions under Article   1 of Protocol No.   1. The relevant parts of the provisions relied on by the applicant read as follows: Article 6 “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Admissibility The parties’ submissions 15.     The Government submitted that by having failed to institute judicial proceedings aimed at ensuring the enforcement of the judgment in his favour, either under civil tort law or under administrative-law provisions, the applicant had failed to exhaust the domestic remedies. They further submitted, in so far as the complaint under Article   1 of Protocol No. 1 was concerned, that the applicant had failed to demonstrate his victim status on account of the allegedly shared ownership over the contested sum. 16.     In response, the applicant reiterated, without further elaboration, that there had been a violation of his rights. The Court’s assessment 17.     As concerns the applicant’s victim status under Article   1 of Protocol No.   1 in respect of the delay in the enforcement of a final judgment in his favour, at domestic level he had claimed only partial ownership of the cash seized from his home, adducing evidence to support that submission (see paragraph   6 above). However, it is undisputed that the applicant owned at least a part of the seized cash. Accordingly, he has standing to complain under Article   1 of Protocol No.   1 in respect of that amount (see Prince Hans‑Adam II of Liechtenstein v. Germany [GC], no.   42527/98, §   82, ECHR 2001 ‑ VIII, and Karapetyan v.   Georgia , no.   61233/12, §   31, 15   October 2020). 18.     The Court additionally notes, taking up the matter of its own motion (see, among other authorities, Buzadji v.   the Republic of Moldova [GC], no.   23755/07, §   70, 5   July 2016), that the eventual enforcement of the domestic court’s decision in the applicant’s favour does not deprive him of “victim” status in relation to the period during which he was prevented from using the amount in issue, as the authorities have not acknowledged and redressed the alleged violation (see Scordino v.   Italy (no.   1) [GC], no.   36813/97, §   181, 29   March 2006). 19.     As to the Government’s objection concerning the non-exhaustion of domestic remedies, the Court considers that it is closely linked to the substance of the applicant’s complaint. It thus joins the objection to the merits of the relevant complaint. 20.     Finally, the Court notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions 21.     The applicant reiterated his complaint (see paragraph   14 above). 22.     The Government submitted that by requesting the police rather than the enforcement bureau to comply with the court order, it had been the applicant who had failed to show sufficient diligence in ensuring the enforcement of the relevant final judgment. The Court’s assessment 23.     The Court reiterates that the execution of a judgment given by any court is an integral part of the “trial” for the purposes of Article 6 of the Convention (see Burdov v.   Russia , no.   59498/00, §   34, ECHR 2002 ‑ III, and Hornsby v. Greece , 19   March 1997, §   40, Reports of Judgments and Decisions 1997 ‑ II). An unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Vladimirova v.   Russia , no.   21863/05, §   56, 10   April 2018). The delay in enforcement of a judgment is calculated from the date when it became binding and enforceable until the date when the obligation in kind imposed by the judgment was fully complied with by the respondent State authority (see Gerasimov and Others v. Russia , nos. 29920/05 and 10 others, §   173, 1 July 2014). 24.     A person who has obtained a judgment against the State may not be expected to bring separate enforcement proceedings (see Musci v.   Italy [GC], no. 64699/01, § 90, ECHR 2006 ‑ V (extracts), and Beshiri and Others v.   Albania , no. 7352/03, § 54, 22 August 2006; see also Dadiani and Machabeli v.   Georgia , no. 8252/08, §§ 32-34, 12 June 2012, and Eliauri and Others v.   Georgia (dec) [Committee], no.   74019/12, §   20, 22   April 2021). In such cases, the defendant State authority must be duly notified of the judgment and is thus well placed to take all necessary initiatives to comply with it or to transmit it to another competent State authority responsible for execution (see Burdov v.   Russia (no.   2) , no. 33509/04, §   68, ECHR 2009). 25 .     The Court observes that what is at stake in the present case is the delayed enforcement of the judgment of 23   September 2009 ordering the State – the police in the present case – to return to the applicant the cash seized from his home as evidence (see paragraph   6 above). 26.     The judgment, in so far as the order to return the cash to the applicant is concerned, became enforceable on 14   April 2010. The writ of enforcement was issued in respect of the police and was transmitted to them by the Tbilisi Court of Appeal (see paragraph   8 above). What is more, the enforcement proceedings did not present any particular challenge (see paragraph   11 above). Yet, no steps were taken to enforce the judgment for more than a year and seven months after the police had been instructed by the appellate court to comply with the writ of enforcement, in breach of the authorities’ obligation under the Convention to take timely action of their own motion, on the basis of the information available to them, with a view to honouring the judgment against the State (see Akashev v.   Russia , no. 30616/05, §§   21 ‑ 23, 12 June 2008; Stoycheva v.   Bulgaria , no. 43590/04, §   58, 19   July 2011; and Dadiani and Machabeli , cited above, §   45). 27.     Furthermore, and as concerns the question of whether the applicant was obliged to institute separate judicial proceedings following 30   November 2011 (see paragraph   11 above, compare Eliauri and Others , cited above, §   21), the Court observes that the final judgment in his favour was only formally enforced on that date. Namely, rather than simply enforce the judgment in the applicant’s favour, the police and the enforcement bureau appear to have cooperated, on an unclear legal basis, to have the cash seized from the applicant, allegedly even before it was physically returned to him (see paragraph   11 above). The applicant’s related objection that the enforcement procedure was never finalised in that he never got hold of the cash was not given any consideration by the domestic courts in the subsequent proceedings instituted by him (see paragraph   12 above). In this context, and as regards the availability and use by the applicant of domestic remedies following the delayed enforcement of the judgment in his favour, the Court observes that the domestic courts, which were presented with all the facts of the present case, have effectively treated, in substance, the enforcement procedure as lawful and determined the absence of any damage suffered by the applicant due to delayed enforcement (see paragraph   12 above). The Court does not consider that the applicant was, in the special circumstances of the present case, required to institute yet another set of proceedings (contrast and compare, Eliauri and Others , cited above, §   21). 28.     The Court therefore dismisses the Government’s objection concerning non-exhaustion of domestic remedies and finds that there has been a violation of Article   6 §   1 of the Convention and Article 1 of Protocol No. 1 on account of the unexplained delay of more than one year and seven months in the enforcement of the final judgment in favour of the applicant. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.   1 ON ACCOUNT OF THE IMPOSITION OF AN ENFORCEMENT FEE IN RESPECT OF A CRIMINAL FINE 29.     The applicant complained that the imposition of the enforcement fee of 7% on the payment of the criminal fine had been linked to the delayed enforcement of a judgment in his favour, and that the fee had been excessive. He relied on Article   1 of Protocol No. 1. 30.     The Government submitted that the enforcement fee of 7% had been mandatory and applied irrespective of whether the procedure was voluntary or not. Therefore, the fact that the return of the cash seized from the applicant’s home had been delayed had not led to the imposition of the fee. Nor had that fee imposed an excessive individual burden on the applicant. 31.     As regards the applicant’s allegation that the delay in the return of the cash seized from his home (see paragraphs   25-26 above) prevented him from paying the criminal fine voluntarily and therefore resulted in an imposition of the enforcement fee in respect of that sanction, the Court does not find that submission substantiated. In particular, the applicant indicated that he had not intended to use the entirety of the seized cash for the purpose of complying with the writ of enforcement and paying the criminal fine, given that a large part of it had belonged to two other individuals (see paragraph   9 above). In any event, the payment of the fee had been independent of the nature of the enforcement proceedings, whether voluntary or not (see paragraphs   9, 12 and 13 above). Accordingly, it has not been established that the absence of delay in the return of the seized cash would have resulted in the non-imposition of the enforcement fee of 7%. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 32.     As to the applicant’s more generic argument regarding the allegedly excessive nature of the enforcement fee imposed on him in respect of the criminal fine, the Court observes that this matter was not raised at domestic level. While the Government did not submit a non ‑ exhaustion plea and the Court is not in a position to rule, of its own motion, on whether this complaint is inadmissible for non‑exhaustion of domestic remedies (see International Bank for Commerce and Development AD and Others v. Bulgaria , no.   7031/05, §   131, 2   June 2016), pursuing the matter at domestic level would have provided more solid factual elements to assess this claim. At any rate, the Court reiterates that in principle, the imposition of fees on a debtor to ensure the recovery of fines in criminal cases is not incompatible with that provision (see, mutatis mutandis , OAO Neftyanaya Kompaniya Yukos v.   Russia , no.   14902/04, §   655, 20   September 2011). As for the question of whether an excessive individual burden was imposed on the applicant, this issue is to be assessed in the particular circumstances of the case. Yet, the applicant did not elaborate, by submitting appropriate evidence, on his submission that the fee had imposed an excessive individual burden on him. In such circumstances, the complaint concerning the allegedly excessive nature of the enforcement fee is unsubstantiated and therefore manifestly ill ‑ founded. This part of the application must therefore be rejected, in accordance with Article   35 §§ 3 (a) and 4 of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 33.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 34.     In respect of pecuniary damage, the applicant claimed 374,640   Georgian laris (GEL) (the amount of the criminal fine and the enforcement fee); 230,050 United States dollars (USD) (the amount of cash seized from his home and later used to enforce the fine and its related fee); USD   230,050 (the alleged profit he could have accrued had the cash not been seized from his home); and USD   96,000 (alleged loss of income). The applicant also claimed 40,000 euros (EUR) in respect of non-pecuniary damage. 35.     The Government submitted that the applicant’s submissions were speculative and without any link to the alleged violations of his rights. 36.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, the Court accepts that the applicant must have been distressed by the belated enforcement. Making its assessment on an equitable basis, it awards the applicant EUR   4,700 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 37.     The applicant also claimed EUR   5,000 for the costs and expenses incurred before the Court. 38.     The Government submitted that the applicant’s claim was unsubstantiated as it had not been supported by any evidence. 39.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the applicant’s failure to produce any documents in support of his claims and the above criteria, the Court rejects the claim for costs and expenses. Default interest 40.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join to the merits the Government’s objection concerning non ‑ exhaustion of domestic remedies in respect of the delayed enforcement of a final judgment and dismisses it; Declares the complaint regarding the delayed enforcement of a final judgment in the applicant’s favour admissible and the remainder of the application inadmissible; Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the delayed execution of the judgment in favour of the applicant; Holds (a)   that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 4,700 (four thousand seven hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 September 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President [1] Rectified on 16   November 2022: the text was “1984”.