CEDH · CASELAW;CLIN;ENG — 2 février 2010

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Georgia - 7975/06 Judgment 2.2.2010 [Section II] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Legislative gap preventing victims of Soviet political repression from effectively asserting their rights to compensation: violation   Article 46 Article 46-2 Execution of judgment Measures of a general character Respondent State required to take prompt measures to close legislative gap preventing victims of Soviet political repression from effectively asserting their rights to compensation   Facts – The applicants, who had been recognised as victims of Soviet political repression, brought an action seeking compensation for pecuniary and non‑pecuniary damage on the basis of the Law of 11   December 1997 (“the 1997 Law”) on recognition of victim status and social welfare arrangements for persons subjected to political repression. A regional court held, inter alia , that the applicants’ claims could not be allowed because the laws to which the relevant sections of the 1997 Law referred had not yet been enacted. In 2005 the Supreme Court dismissed an appeal on points of law by the applicants. Law – Article 1 of Protocol No. 1: (a)   Admissibility – The Government raised two preliminary objections: one concerning the compatibility ratione temporis of the applicants’ complaint and the other, divided into two parts, concerning its compatibility ratione materiae . (i)     Compatibility ratione temporis: the 1997 Law had entered into force on 1   January 1998 and no legislation had been enacted since then in relation to the sections of relevance in the instant case. The absence of legislative measures after 7   June 2002, the date of entry into force of Protocol No.   1 in respect of Georgia, did not lend the 1997 Law the character of an instantaneous act for the purposes of Article   1 of Protocol No.   1. The applicants’ entitlement under the 1997 Law had subsisted at the time Protocol No.   1 was ratified and on 22   February 2006, the date on which they had lodged their application with the Court. Accordingly, the Court could assess from the standpoint of Article   1 of Protocol No.   1 the ongoing failure to legislate, which had persisted well beyond 7   June 2002 and which continued to affect the applicants. While it was true that it did not have jurisdiction ratione temporis to examine the situation prior to 7   June 2002, the Court nevertheless had to take that period into account in examining the complaints before it. Conclusion : preliminary objection dismissed (six votes to one). (ii)     Compatibility ratione materiae (α)     Right to restoration of property rights (section   8(3) of the 1997 Law) – Only with the enactment of a subsequent law would the applicants be able to assess whether and to what extent they were eligible for restoration of the rights referred to in the relevant section of the 1997 Law. There were therefore no grounds to conclude that, at the time they applied to the domestic courts in 2005 under the section concerned, there had existed a proprietary interest in their favour which was sufficiently established to be enforceable. The section in question did not by itself give rise to a real and enforceable claim to which a legitimate expectation could be attached. Conclusion : preliminary objection allowed (six votes to one). (β)     Right to compensation for non-pecuniary damage resulting from detention and exile (section   9 of the 1997 Law) – The right to compensation for non-pecuniary damage asserted by the applicants had a legal basis in domestic law (any Georgian citizen found to have been a victim of political repression occurring on the territory of the former Soviet Union between February 1921 and October 1990 was entitled to monetary compensation) and the applicants satisfied the necessary conditions. Furthermore, the Supreme Court had upheld the applicants’ entitlement. At the time they applied to the domestic courts the applicants had had, by virtue of the section referred to above, a debt in their favour which was sufficiently established to be enforceable and which they could validly seek to recover from the State. Article   1 of Protocol No.   1 was therefore applicable to this part of their action. Conclusion : preliminary objection dismissed (six votes to one). (b)     Merits – In so far as the omission by the State was based on the 1997 Law, which deferred enactment of the law referred to in section   9 in fine until a later stage, the infringement or restriction of the applicants’ right to peaceful enjoyment of their possessions could be said to have been provided for by law. In the absence of observations from the parties, the Court could only assume that in the instant case, as far as the authorities were concerned, the general interest consisted in the significant political and financial implications which determination of the amount of compensation due to the applicants for non-pecuniary damage was likely to have. In any event, even assuming that the State’s inaction – whether it was to be characterised as interference or as a failure to act – had pursued a legitimate aim, there were no grounds for finding that a fair balance had been struck between the competing interests of the individual and of society as a whole. There was no reason why the State, which had had over eleven years in which to act, should have completely omitted to take any steps towards passing the legislation referred to in section   9 of the 1997 Law, for instance by establishing the exact number of victims, commissioning an economic, financial and social cost-benefit analysis concerning the different sections of society affected by the process and assessing the losses sustained by each category of victims. The Government had not put forward any convincing and reasoned argument to explain their complete failure to act. Having made a moral and financial decision in favour of Georgian citizens persecuted by the Soviet regime, the State had a duty, at least once Protocol No.   1 had come into force in respect of Georgia, to consider the issue and take action so that the applicants were not left in a state of uncertainty for an indefinite period, a situation in respect of which, moreover, they had no effective domestic remedy. Added to this was the fact that the State was apparently still unwilling to embark upon this process, thus depriving the elderly applicants of any prospect of benefiting in their lifetime from the rights vested in them under section   9 of the 1997 Law. In the circumstances the complete lack of action over a period of several years, which was attributable to the State and deprived the applicants of effective enjoyment of their right to payment of compensation for non-pecuniary damage within a reasonable time, had imposed a disproportionate and excessive burden on them which could not be justified by the authorities’ supposed pursuit of a legitimate general interest in the instant case. Conclusion : violation (six votes to one). Article 46 of the Convention: the issue of a gap in the legislation raised by this application did not just affect the applicants. The number of persons affected could be anywhere between 600 and 16,000, and the situation was likely to give rise to numerous applications to the Court. General measures needed to be taken at national level in order to execute the judgment. The authorities therefore needed to act swiftly to adopt legislative, administrative and budgetary measures so that the persons concerned by section   9 of the Law of 11   December 1997 could effectively avail themselves of the rights guaranteed by that provision. Article 41: EUR 4,000 in respect of non-pecuniary damage unless general measures were taken within six months.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes