CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 avril 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .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 } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; 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 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 17 April 2018   FIFTH SECTION Application no. 55949/10 Zurab CHAKVETADZE against Georgia lodged on 9 September 2010 STATEMENT OF FACTS 1.     The applicant, Mr Zurab Chakvetadze, is a Georgian national, who was born in 1948. He is represented before the Court by Mr I. Kandashvili, 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.     On 25 December 2008, police stopped the applicant in a street in Tbilisi and conducted his personal search. As a result one Subutex tablet and one bullet were seized from the applicant. The same day, following a search in the applicant’s apartment, police found heroin, one bullet, and cash in the amount of 230,050 United States dollars (“USD”). A court confirmed the validity of both searches ex post factum . 4.     The next date the applicant was charged with unlawful acquisition and possession of narcotic substances and ammunitions, offences under Articles   236 §   1 and 260 § 2 (a) of the Criminal Code respectively. The applicant protested his innocence in connection with the heroin charge, claiming that it had been planted by police during his house search. As for the remaining charges, he admitted to having the other impugned items in his possession. The applicant also submitted that the cash seized during the apartment search had no links to any alleged criminal conduct. 5.     On 23 September 2009, the Tbilisi City Court acquitted the applicant of the heroin charge and convicted him of the remaining charges. The applicant was sentenced to one year in prison and a fine in the amount of 352,000 Georgian laris (GEL) (approximately 158,316 euros (EUR)). The court ordered the return of the cash seized during the apartment search stating that it was irrelevant to the proceedings. 6.     On 4 December 2009, the Tbilisi Court of Appeal, while dropping the bullets-related conviction, confirmed the remainder of the trial court’s decision. The Court of Appeal further reduced the applicant’s sentence based on the Amnesty Act of 2009 and ordered his immediate release. It confirmed, however, the imposition of a criminal fine in the amount of GEL   352,000. On 12 March 2010, the Supreme Court rejected the applicant’s appeal on points of law as inadmissible. 7.     On 14 April 2010, the Tbilisi Court of Appeal issued two writs for enforcement, the first one concerning the criminal fine imposed on the applicant, and the second one concerning the return by police of the cash seized during the apartment search. 8.     By a letter dated 25 April 2010, the National Bureau of Enforcement invited the applicant to voluntarily pay the criminal fine imposed on him plus 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 EUR   11,082) in the enforcement fee. In a letter dated 3   May 2010, the National Bureau of Enforcement requested the applicant to submit a list of all his assets referring to the fact that he had failed to pay the fine voluntarily. On 7 May 2010, the applicant submitted the list as requested. On that list he referred to the amount seized from him by police during his house search, and explained that it had not been reimbursed up to that point. 9.     In the meantime, throughout early May 2010, the applicant sought the recovery of the seized cash from the police. His representative submitted written requests to the chief of the relevant police department and the district prosecutor, asking for the enforcement of the respective court decision. He also visited the relevant police department on three occasions. Following a month of inactivity on the part of police, he complained about the delayed enforcement with the Tbilisi City Prosecutor. According to the applicant, he did not receive a response to either of his written requests from either of the authorities concerned. 10.     On 30 November 2011, the police returned the impugned amount to the applicant. Immediately thereafter, a bailiff seized the entire amount of recovered cash for the purpose of enforcing the criminal fine imposed on the applicant and the enforcement fee. The amount seized by the bailiff was GEL 4,700 in excess of the enforceable total amount. The latter sum was returned to the applicant on 4 February 2012. 11.     On 31 December 2011 the applicant initiated proceedings against the National Bureau of Enforcement, challenging the enforcement measure. He inter alia claimed that the imposition of a 7% enforcement fee was unlawful and disproportionate. On 27 April 2012 the Tbilisi City Court rejected the applicant’s claim as unsubstantiated. The decision was upheld on appeal on 4 July 2012. On 11 February 2013, the Supreme Court rejected the appeal of the applicant on points of law as inadmissible. B.     Relevant domestic law 12.     The relevant provisions of the Code of Criminal Procedure of 1998, as in force at the material time, read as follows: Article 602 “1. Judgment (decision) of the first instance and appeal courts, also the decision of a cassation instance shall become enforceable and shall be transmitted for enforcement immediately after its adoption.” Article 604 “1. The court delivering a judgment or decision shall give instructions for its enforcement. The court shall transmit decision concerning the enforcement of a judgment along with a copy of the judgment to the competent enforcement authority. ... 4. Fines or other pecuniary penalties shall be enforced through the writ of enforcement.” 13.     The Enforcement Proceedings Act of 16 April 1999, as in force at the material time, read, in so far as relevant, as follows: Article 38 “1. Fee for the enforcement (hereinafter - fee) of decisions issued by courts or other authorised bodies (official) is a compulsory payment for the services of the National Bureau of Enforcement (inclusive the value added tax) which shall be deposited to the account of the National Bureau of Enforcement. 2. Revenues received from the collection of fees (excluding the value added tax) shall be borne for the implementation of the tasks and objectives of the National Bureau of Enforcement. ..... 5. The fee shall be paid by a debtor. In pecuniary enforcement matters fee shall be enforced along with the enforceable amount. .... 11. The fee shall not be collected in advance ... in the matters of the enforcement of criminal fines ... The fee shall be 7% of the enforceable amount for the enforcement of such decisions which shall be charged to the debtor from the beginning of enforcement proceedings.” COMPLAINTS 14.     The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the delay in the enforcement of the court decision in his favour was unreasonable and violated his rights to a fair trial and the peaceful enjoyment of possessions. 15.     He further complains under Article 1 of Protocol No. 1 that the imposition of an enforcement fee on him was disproportionate and violated his right to the peaceful enjoyment of possessions. QUESTIONS TO THE PARTIES 1.     Was the length of the enforcement proceedings concerning the court decision ordering the restitution of seized cash to the applicant in breach of the “reasonable time” requirement under Article   6 §   1 of the Convention? Was there a violation of Article 1 of Protocol No.   1 on account of that delay?   2.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No.   1 on account of levying a GEL 24,640 fee to him in connection with the enforcement of a criminal fine? If so, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v.   Italy , [GC], no. 22774/93, § 59, ECHR 1999-V, and OAO Neftyanaya Kompaniya Yukos v. Russia , no.   14902/04, §§ 651-657, 20 September 2011)?