CEDH · CASELAW;CLIN;ENG — 27 septembre 2005

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Georgia   - 2507/03 Judgment 27.9.2005 [Section II] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Non-enforcement of a final judgment on account of limited budgetary resources: violation   Article 6 Civil proceedings Article 6-1 Access to court Non-enforcement of a final judgment on account of limited budgetary resources: violation   Facts : The first applicant is a limited liability company. The second applicant is the company’s General Director. Between 1998 and 1999 the applicant company supplied the Georgian Ministry of Defence with various types of fish products. In December 1999, the Regional Court allowed the applicants’ action against the Ministry for breach of contract, and ordered the Ministry to pay the applicant company compensation in the amount of EUR 113,860. The decision was not challenged and became binding a month after. An Enforcement Agent initiated a forcible execution procedure against the Ministry of Defence, drawing up a list of non-military buildings which could be put up for sale by tender to discharge the debt. Although the Ministry’s appeal seeking an adjournment of the enforcement was dismissed, no further steps were taken for the enforcement of the judgment. A subsequent claim by the applicant company for loss of business profits was dismissed by the domestic courts. The judgment debt of 6   December 1999 has still not been paid to the applicant company. On 2 July 2004, Governmental Ordinance No. 62 introduced a mechanism for the gradual payment of outstanding judgment debts, establishing an order of priority for the enforcement of court decisions. Law : Article 6(1) – It was not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Whilst a delay in the execution of a judgment may be justified in particular circumstances, that delay may not be such as to impair the essence of the right protected under Article   6(1). Ordinance No. 62 on the payment of judgments debts could not be taken as a particular circumstance which could justify the delay of well over five years which had already occurred in the present case. The applicant company should not have been prevented from benefiting from the decision given in its favour, which was of vital importance for its functioning, on the ground of the State’s financial difficulties. Hence, by failing for five years and eight months to ensure the execution of a binding judgment, the Georgian authorities had deprived the provisions of Article 6(1) of the Convention of all useful effect. Conclusion: violation (unanimously). Article 13 – Although the Government maintained that the applicant had not made use of criminal law remedies to challenge the non-enforcement of the judgment, in particular the alleged inactivity of the Enforcement Agent, the enforcement of the judgment was contingent upon appropriate budgetary measures rather than on the Enforcement Agent’s conduct. Conclusion : violation (unanimously). Article 1 of Protocol No. 1 – It was not disputed that the Regional Court’s decision of 6 December 1999 provided the applicant company with an established, enforceable claim which constituted a “possession” within the meaning of this provision. The impossibility for the applicant company to obtain the execution of that judgment had constituted an interference with its right to the “peaceful enjoyment of possessions”. Whilst the Government claimed that the interference had been lawful as from 2 July 2004 with the adoption of Ordinance No. 62, the Court considered that the adoption of such an Ordinance had amounted to the authorities’ second attempt to interfere with the applicant company’s right to the peaceful enjoyment of its possession. Under Georgian legislation, a Governmental Ordinance did not fall within the category of normative legal act, and constituted an “individual legal act”, valid for one occasion only and not intended to prescribe a general rule of conduct for recurrent applications. Moreover, as the Ordinance did not enable the applicant company to foresee the inordinate delay in the payment of the judgment debt nor did it specify when the applicant would be entitled to receive the payment due, the interference could not be seen as based on legal provisions that met the Convention requirements of lawfulness. Conclusion : violation (unanimously). Article 41 – The Court awarded the applicant EUR 200,000 in respect of pecuniary damage. It also made an award for costs and expenses.   © 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