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SECOND
SECTION
CASE OF FC MRETEBI v. GEORGIA
(Application
no. 38736/04)
JUDGMENT
STRASBOURG
31
July 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of FC Mretebi v. Georgia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mr D. Popović,
judges,
and Mrs F. Elens-Passos, Deputy Section
Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38736/04) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by the football club Mretebi (“the
applicant”) on 25 October 2004. The applicant was represented
by its Chairman, Mr V. Chkhaidze, and Mr G. Svanidze,
Mr I. Baratashvili and Mr A. Baramidze, lawyers
practising in Tbilisi.
- The
Georgian Government (“the Government”) were represented
by their Agent, Mr B. Bokhashvili of the Ministry of Justice.
- On
4 September 2006 the Court decided to communicate the complaint
concerning the inability to have access to the Supreme Court to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government and the applicant each filed observations on the
admissibility and merits of the application (Rule 54A of the Rules of
Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant club was founded on 3 February 1988 in Tbilisi. Subsequent
to the last changes in its corporate structure, on 10 February
1999, the Vake District Court in Tbilisi incorporated the applicant
as a branch of a German limited liability company, “BAUML
GmbH”.
1. Proceedings against Dinamo FC
- Under
contracts of 11 May and 5 December 1990, the applicant engaged
Mr Giorgi Kinkladze (“the footballer”) as a
professional player until 30 June 1993.
- On
11 July 1992 the applicant and the football club Dinamo FC, both
members of the Georgian Football Federation (“the GFF”),
entered into an agreement on the footballer's transfer to Dinamo FC.
It was arranged that the footballer would play for the new club after
the latter had paid the applicant 1,000,000 Soviet roubles (the
equivalent of 6,000 euros (EUR), according to the
applicant). In addition, if the footballer was later transferred
abroad, the applicant was to receive 50% of the international
transfer fee owed to Dinamo FC. If Dinamo failed to fulfil that
obligation, the agreement between it and the footballer would become
null and void.
- On
13 August 1992 Dinamo FC paid the applicant the sum agreed in roubles
and the domestic transfer took effect.
- Under
a contract of 11 July 1995, Dinamo FC transferred the footballer to
Manchester City FC for a lump sum of USD 1,750,000
(EUR 1,380,000).
In the event of the footballer's further transfer by the English club
for a fee in excess of USD 3,000,000 (EUR 2,370,000), Dinamo FC was
entitled to receive 10% of the excess amount. Subsequently,
Manchester City FC indeed transferred the footballer to AFC Ajax,
and Dinamo FC thus received around GBP 1,250,000 (EUR 1,820,000)
from the English club.
- Having
received the lump-sum transfer fee from Manchester City FC,
Dinamo FC never remitted to the applicant the percentage agreed under
the contract of 11 July 1992. Seeking to obtain the amount owed to
it, the applicant complained to the GFF.
- On
2 January 1997 the Disputes Committee of the GFF decided that Dinamo
FC owed the applicant USD 875,000 (EUR 691,000), corresponding
to one half of the transfer fee paid by Manchester City FC. Dinamo FC
was ordered to pay this sum in three instalments.
- On
14 April 1997 the applicant referred the matter to the Fédération
Internationale de Football Association (the “FIFA”)
requesting its intervention to secure enforcement by the GFF of its
decision of 2 January 1997.
- The
FIFA reminded the GFF on 28 April, 12 June, 29 July and 28 August
1997 of its obligation to enforce decisions and thus to settle the
dispute between the Georgian clubs, warning that non-compliance with
FIFA directives might result in disciplinary proceedings against the
GFF.
- On
1 September 1997 the GFF Emergency Committee decided that Dinamo FC
was liable to pay the total amount of USD 875,000 (EUR 691,000)
to the applicant immediately and that, in case of failure to comply
with this decision, Dinamo FC would be relegated to the Second
Division of the Georgian Championship. That sanction would not,
however, release the debtor from its obligation to fulfil its
financial commitments vis à-vis the applicant. In
addition, the GFF warned both clubs that they were barred, under the
GFF and FIFA Statutes, from referring the dispute to a court of law.
- Following
the applicant's complaints, on 16 April and 6 June 1998, that the
dispute had still not been settled, the FIFA again notified the GFF,
requesting the enforcement of the latter's decisions at the latest by
31 August 1998, on pain of international sanctions.
- In
the meantime Dinamo FC had taken the matter to a civil court. In a
judgment of 13 July 1998, the Vake-Saburtalo District Court in
Tbilisi declared the transfer agreement signed by both parties on 11
July 1992 to be null and void. Subsequently, the decision of the
Disputes Committee of the GFF of 2 January 1997 was also annulled.
During the hearing, the applicant pointed out that the District Court
had no right to examine the issue, since the clubs, as GFF members,
enjoyed immunity from the jurisdiction of the ordinary courts. That
argument was left unanswered. The judgment, not having been appealed,
became binding.
- On
17 September 1998, in view of that judgment, the GFF decided to annul
its decision of 1 September 1997 and thus to terminate the dispute.
- On
24 August 1999 the applicant appealed to the Bureau of the FIFA
Players' Status Committee (“the Bureau”), a disputes
resolution organ. In a decision of 6 September 1999, the Bureau
considered that the FIFA should intervene since it was clear that one
of the parties “was not behaving properly and that the GFF was
not able to settle the matter by itself”.
19. Without
challenging the findings of the Vake-Saburtalo
District Court in Tbilisi on 13 July 1998 about the nullity of the
contract of 11 July 1992, the Bureau stated on 6 September 1999
that the footballer's transfer from the applicant to Dinamo
FC had nevertheless taken place and
that no compensation had been paid in return. It therefore concluded
that:
“There had been a transfer of possession of the
federative rights to the player between two clubs, without any
contract binding them (since the transfer contract had been declared
null and void by the court) and, since one of the parties had indeed
performed its obligation, it was logical for that party to be
properly indemnified for having done so in good faith.”
- In
the light of its findings, the Bureau decided that compensation for
the training and development of the footballer had to be paid to the
applicant; both clubs were instructed to negotiate the amount. In the
event of further disagreement, the FIFA Special Committee would
resolve the issue for them. Furthermore, noting that Dinamo FC had
severely breached Article 59 § 1 of the FIFA Statutes by
submitting the dispute to a court of law, the Bureau fined that club
CHF 20,000 (EUR 12,824).
- The
applicant lodged an appeal against this decision with the FIFA
Executive Committee (“the Executive Committee”), which
delivered its final decision on 24 March 2000. The appeal having been
lodged out of time, the Executive Committee rejected it. However, in
view of the fact that the clubs had failed to negotiate an amount of
compensation, it determined that Dinamo FC had to pay the applicant
USD 300,000 (EUR 236,000).
- Dinamo
FC complied with this decision and fully paid the debt in January
2001.
2. Proceedings against the GFF
- Considering
that the amount fixed by the FIFA was insufficient to compensate for
the loss sustained, the applicant brought an action for damages in
the amounts of USD 9,600,000 and GBP 2,812,500 (totalling EUR
11,750,000) against the GFF before a court of law. It argued that the
respondent, contrary to its Statutes, had failed to abide by its
positive obligation to protect the rights of its member clubs. As a
result of this negligence, the unjust enrichment of Dinamo FC had
occurred at the expense of the applicant's property rights.
- The
applicant also requested leave to defer payment of the court fees
(known as State fees) until after examination of the case. On 11
April 2003 the Tbilisi Regional Court refused to defer payment on the
ground that the applicant's request was not substantiated by evidence
of insolvency. The value of its claim being high, the applicant
eventually paid the court fees, in the maximum amount of GEL 5,000
(EUR 2,200) under Article 39 §§ 1 and 2 of the Code of
Civil Procedure (“the CCP”), on 5 May 2003.
- The
Tbilisi Regional Court, as the court of first instance, examined the
action on 13 November 2003 and dismissed it as manifestly
ill-founded.
- On
5 January 2004 the applicant lodged a cassation appeal with the
Supreme Court of Georgia. Referring to the fact that it had suspended
its activities because of financial problems (near bankruptcy) caused
by the respondent's wrongful acts, the applicant requested exemption
from the court fees for cassation proceedings. In case this motion
for total exemption was rejected, the applicant also requested leave
to pay the court fees either in a reduced amount or with deferment.
It referred to the right of access to a court guaranteed by the
Constitution.
- On
30 January 2004 the Supreme Court refused to grant the applicant's
request for partial or full exemption from the court fees. Without
referring to any specific circumstances, it bluntly stated that no
ground for exemption, under Articles 46 to 49 of the CCP, existed in
the case at hand. The court invited the applicant to pay the GEL
5,000 fee within fourteen days. When it failed to do so, the Supreme
Court, in a final decision of 15 March 2004, declared the
cassation claim inadmissible. This decision, adopted under the
written procedure, was communicated to the applicant on 26 April
2004.
- According
to the applicant, its inability to receive from Dinamo FC proper
indemnification in return for the footballer's transfer, as well as
the high costs which it had incurred in the domestic and
international proceedings against Dinamo FC and the GFF, constituted
the main reasons for its financial collapse. The auditor's report of
15 March 2005 confirmed the applicant's insolvency and the resulting
cessation of its activities in the sphere of football. The report
stated that, due to the inability to pay the participation fee, the
applicant had been excluded from the national football championship
since 2002. Among other outstanding debts, the report noted arrears
of interest on a loan which the applicant had obtained in order to
pay the court fee of GEL 5,000 for the proceedings before the
Regional Court (paragraph 24 above).
II. RELEVANT DOMESTIC LAW AND PRACTICE
29. Code of
Civil Procedure (the “CCP”), as it stood at the material
time
Article 14: “...the Regional Court adjudicating
at first instance”
“...the Regional Court shall hear a case at first
instance if the value of the claim exceeds GEL 500,000 [EUR 224,000]
...”
Article 37 § 2: “Definition of notions”
“Court fees (sasamarTlo
xarjebi) shall be composed of the State fee
(saxelmwifo
baJi) and the costs incurred for purposes of the
proceedings.”
Article 38: “State fees”
“The State fee shall be payable in accordance with
the State Fees Act when:
a)
Lodging a claim...; ...
f)
Lodging an appeal;
g)
Lodging a cassation appeal...”
Article 39 §§ 1 and 2: “The amount of
State fees”
“The amount of the State fee shall depend on the
value of the claim and is calculated as follows:
a) [For lodging a claim, the State fee] ...
shall represent 2.5% of the value of the claim;
b) For lodging an appeal – 3% of the
value of the claim;
c) For lodging a cassation appeal – 4%
of the value of the claim...;
The amount of the State fee shall not however exceed
5,000 Georgian laris.”
Article 40 § 1: “The value of the claim”
“The value of the claim shall be indicated by the
claimant. If the amount specified by the claimant is manifestly
incompatible with the actual value of the disputed property, it shall
be re-assessed by the judge.”
Article 41: “Determination of the value of a
pecuniary claim”
“The value of a pecuniary claim shall be
calculated as follows:
a) For claims of monetary arrears, it shall
be represented by the amount claimed...”
Article 47 § 1: “Exemption from court
fees”
“With due regard to the financial situation of the
party concerned, the court can exempt that party in whole or in part
from the court fees to be paid in favour of the State budget.”
Article 48: “Granting leave to pay court fees
by instalments, or to defer payment, or to pay a reduced amount”
“With due regard to the financial situation of the
parties, the court may grant both or one of the parties the right to
pay court fees either by instalment, or to defer payment, or to pay a
reduced amount.”
Article 49 § 1: “Reduction of court fees”
“Court fees shall be reduced by one half: ...
c) if the judgment is delivered by default.”
Pursuant
to Article 102 § 1, the claimant and respondent are each
expected to prove the circumstances on which they base their
arguments in the adversarial proceedings.
Pursuant
to Articles 185 and 396 § 3, if the State fee is not paid when
the cassation appeal is lodged, the court would order the party
concerned to pay it within a fixed time limit. If the party does not
comply with the deadline, the claim would not be examined and the
proceedings would be discontinued.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the Supreme Court had refused, without
giving any reasons, to exempt it from the
excessively high court fees, thus denying it access to justice in
violation of Article 6 § 1 of the Convention. Alleging
further that Dinamo FC was under the protection of certain high
governmental officials and that corruption in the judicial system was
rife, the applicant complained of a lack of impartiality on the part
of the domestic courts. Finally, it challenged the outcome of the
proceedings, alleging that the domestic courts had misinterpreted the
provisions of substantive and procedural law. Article
6 § 1, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal...”
A. Admissibility
1. As regards the outcome of the proceedings and the
impartiality of the judicial authorities
- The
Court recalls that it is not its task to act as an appeal court of
“fourth instance” by calling into question the outcome of
the domestic proceedings. The domestic courts are best placed for
assessing the relevance of evidence to the issues in the case and for
interpreting and applying rules of substantive and procedural law
(see, amongst many authorities, Vidal v. Belgium, judgment
of 22 April 1992, Series A no. 235-B, pp. 32-33,
§ 32; Gurepka v. Ukraine, no. 61406/00,
§ 45, 6 September 2005). In the present case, the relevant
domestic decisions do not disclose any manifestly arbitrary reasoning
(cf., a contrario, Donadze v. Georgia,
no. 74644/01, § 32, 7 March 2006) and the Court sees
no appearance of a violation of Article 6 §
1 as regards the outcome of the proceedings.
- As
to the applicant's complaint that the domestic courts were not
impartial as they were corrupt, the Court notes this is a mere
assertion, unsupported by any specific facts or evidence.
- In
such circumstances, the Court considers that this part of the
application is manifestly ill-founded and must be rejected pursuant
to Article 35 §§ 3 and 4 of the Convention.
2. As regards access to the Supreme Court
- The Court notes that the applicant's complaint of an
unjustified denial of access to the Supreme Court is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' arguments
- The
Government submitted that, under Article 47 of the CCP, only physical
persons could obtain complete exemption from court fees. In so far as
the applicant was a legal entity, it was excluded, according to the
Government, from the scope of the above provision and could only
request leave to pay such fees either by instalments or with
deferral, or in a reduced amount, as provided for in Article 48 of
the CCP. However, as the applicant, contrary to the requirements of
Article 102 § 1 of the CCP, had failed to substantiate with
evidence its allegation of financial difficulties, the Supreme Court
had correctly denied the financial relief sought under Article 48 of
the CCP. The Government further claimed that, prior to dismissing the
applicant's cassation claim for non-payment of the court fees, the
Supreme Court had invited the latter to submit the missing evidence
of insolvency.
- The
Government contended that
- the
amount of the fees - GEL 5,000 (EUR 2,200) - was insignificant;
- any
football club in Georgia, even the poorest one, could afford it; and
- in
any case, the fees could not be considered disproportionate, given
the overall value of the damages sought.
The
Government compared a recent change in legislation which increased
the maximum court fees to GEL 50,000 (EUR 22,000). The applicant
should have known that judicial proceedings were contingent upon the
payment of such fees. Having received EUR 236,000 from Dinamo FC, the
applicant should have put aside the funds necessary for financing the
proceedings. In so far as the imposition of the court fees served the
legitimate aim of ensuring the fair and effective administration of
justice, the sum of GEL 5,000 could not be said, in the Government's
view, to have constituted an unreasonable or disproportionate
restriction. In any event, the Government recalled that
the Tbilisi Regional Court had already examined the applicant's claim
against the GFF on the merits and dismissed it as manifestly
ill-founded.
- The
applicant maintained, in reply, that it could not afford the court
fees because it had been financially ruined by the time of the
litigation against the GFF as a result of its previous dispute with
Dinamo FC. It stressed in this regard that it had informed the
Supreme Court of its insolvency. This could anyway have easily been
deduced from the documents concerning its dispute with Dinamo FC,
which materials were in the case file. The arrears received from
Dinamo FC had been spent on settling an insignificant part of its
debts and could not be taken as an indication of its financial
capacity. If the Supreme Court had been dissatisfied with the
evidence of the applicant's insolvency, it should have noted so in
its warning decision of 30 January 2004, and invited the applicant to
submit the missing documents. In this connection, the applicant
denied the Government's allegation that the Supreme Court, prior to
dismissing its cassation claim, had given it an additional chance to
prove its insolvency (see paragraph 27 above).
2. The Court's assessment
- In
the present case, the Court notes that the applicant had in effect to
abandon its cassation appeal as it had been unable to pay the Supreme
Court fees.
- However,
the Court recalls that Article 6 § 1 secures to everyone the
right to have any claim relating to his or her civil rights and
obligations brought before a court (see Teltronic-CATV v.
Poland, no. 48140/99, §§ 45 and 64, 10
January 2006; Golder v. the United Kingdom, judgment of
21 February 1975, Series A no. 18, pp. 13-18, §§
28-36). Where appeal procedures are available, Contracting States are
required to ensure that physical and legal persons within their
jurisdictions continue to enjoy the same fundamental guarantees of
Article 6 before the appellate courts as they do before the courts of
first instance (see Brualla Gómez de la Torre v. Spain,
judgment of 19 December 1997, Reports of Judgments and Decisions
1997 VIII, p. 2955, § 33; Tinnelly & Sons Ltd
and Others and McElduff and Others v. the United Kingdom,
judgment of 10 July 1998, Reports 1998-IV, p. 1660, §
72).
Consequently,
there can be no doubt that the applicant had the right under Article
6 § 1 of the Convention to have its case heard by the Supreme
Court, but the latter's decisions of 30 January and 15 March 2004
limited that right.
-
The Court must determine whether that limitation restricted or
reduced the applicant's right to a court in such a way or to such an
extent that the very essence of that right was impaired. In so doing,
the Court will review the aforementioned decisions of the Supreme
Court, which the latter took in the exercise of its powers of
appreciation, in order to ascertain whether the consequences thereof
were compatible with the Convention (see Kreuz v. Poland, no.
28249/95, §§ 55 and 56, ECHR 2001 VI).
- The
Court recalls that the requirement to pay civil court fees in order
to initiate proceedings cannot be regarded as a restriction on the
right of access to a court which is incompatible per se with
Article 6 § 1 of the Convention (Weissman and Others v.
Romania, no. 63945/00, §§ 34 and 35, ECHR 2006 ...
(extracts)). However, the reasonableness of such fees must be
assessed in the light of the particular circumstances of a given
case, including the applicant's ability to pay them, and the phase of
the proceedings at which such a restriction is imposed (see Kreuz,
cited above, §§ 58 and 60). Moreover, a restriction on
access to court is only compatible with Article 6 § 1 if it
pursues a legitimate aim and if there is a reasonable relationship of
proportionality between the means used and the aim pursued (Weissman
and Others, cited above, § 36).
- In
the instant case, the Court notes that the applicant, in view of the
value of its claim and pursuant to Articles 39 and 41 of the CCP, was
required to pay the maximum fee - GEL 5,000 (EUR 2,200) - at each
level of jurisdiction. In so far as its claim lent itself to an
examination at two instances, the real financial burden was doubled.
Thus, the applicant discharged the fee of GEL 5,000 at first
instance, in view of the Regional Court's refusal to defer payment
(see paragraph 24 above), but was unable to pay the same amount again
in cassation.
- The
Court finds that the Government's argument that even the “poorest
football club” in Georgia could have afforded such fees, is
hypothetical and unsupported by any facts or evidence (see Jedamski
and Jedamska v. Poland, no. 73547/01, § 63,
26 July 2005).
- The
Government's further argument that the applicant, having received a
sum in arrears from Dinamo FC, should have put aside the necessary
funds in order to institute the judicial proceedings, is also
unconvincing. The fact is that the applicant was insolvent and its
activities had been wound up by the time the case reached the Supreme
Court, the latter being duly informed thereof. The applicant even
desisted from playing in the national football championship on
account of its inability to pay the participation fee (see paragraphs
26 and 28 above). In such circumstances, if the Supreme Court, as
asserted by the Government, in fact only looked into the applicant's
earnings, its omission to inquire into the club's expenditures and
outstanding debts appears to have been arbitrary. Assuming that the
Supreme Court considered that the applicant's allegation of
insolvency was not sufficiently substantiated by the material in the
case file, it should have stated so in its warning decision of 30
January 2004 and invited the latter to submit the missing documents.
However, contrary to the Government's assertion, the Court observes
that the Supreme Court did not do so. It was only in the Government's
response in the present proceedings that an explanation was
forthcoming for the Supreme Court's otherwise unmotivated decision of
30 January 2004 (paragraphs 27, 35 and 36 above).
- The
Court further observes that the Government's referral to Article 102
§ 1 of the CCP, imposing an equal burden of proof on both the
claimant and respondent in adversarial civil proceedings, is
irrelevant. In the present case, the problem lay not in the relations
between the parties to a dispute but between a party and the
judiciary. The Court considers that, in situations like the present,
where the judicial authorities consider a party's declaration of
insolvency to be dubious or insufficient, they should request from
that party more information by listing the missing documents and/or
ordering the verification of the information provided (see, mutatis
mutandis, Jedamski and Jedamska, cited above, § 64;
Kreuz, cited above, § 64).
- Whatever
the Government's arguments and justifications may be, the Court
attaches special significance to the fact that the Supreme Court
itself never indicated that the information provided was
insufficient. Nor did it try to obtain, either from the applicant or
the competent authorities, any supplementary proof of insolvency. Its
decisions bluntly stated that no grounds for granting exemption from
the court fees existed. In such circumstances, the Supreme Court's
refusal, without any relevant justification, to exempt the applicant
from those fees appears to be a wanton restriction of the latter's
right of access to a court.
- The
Court notes that the applicant not only sought total or partial
exemption from the court fees but was also willing to pay them either
in instalments or after the case was heard. In other words, its
concern, when requesting exemptions, was truly aimed at securing
access to the cassation proceedings. However, when rejecting, without
giving any valid reasons, the applicant's requests for financial
relief, the Supreme Court appears to have been guided, in the Court's
view, by the sole interest of generating income for the State budget
(see Podbielski and PPU Polpure, no. 39199/98, § 66,
26 July 2005). In the light of the Government's arguments, the Court
is led to conclude that the restriction in the present case was of a
purely financial nature, unrelated to the merits of the claim or its
prospects of success. Such a restriction calls for particularly
rigorous scrutiny from the point of view of the interests of justice
(see Podbielski and PPU Polpure v. Poland, cited above, §
65).
- In
this regard, the Court attaches significance to the fact that, apart
from an abstract reference to the notion of “the fair and
effective administration of justice” (paragraph 36 above), the
Government did not put forward any specific, legitimate aim for the
financial restriction on the applicant's right to a court. Having
regard to the material in its possession, the Court notes that the
fees imposed in the present case could not be said to have served
either to protect the legitimate interests of the other party against
irrecoverable legal costs or to protect the legal system against an
unmeritorious appeal, considerations which might, according to its
case-law, justify restrictions on the right of access to a court (cf.
Tolstoy Miloslavsky v. the United Kingdom, judgment of
13 July 1995, Series A no. 316-B, pp. 80-81,
§§ 61 et seq.). It therefore finds that no prevailing
general interest at issue in the present case.
- In
the light of the above considerations, and assessing the facts of the
case as a whole, the Court concludes that the Supreme Court failed to
secure a proper balance between, on the one hand, the interests of
the State in securing reasonable court fees and, on the other hand,
the interests of the applicant in vindicating its claim through the
courts.
- There
has accordingly been an unjustified denial of access to court and a
violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 1 of Protocol No. 1 that the
domestic courts violated its property rights by annulling the
transfer agreement of 11 July 1992 and refusing to entertain its
civil action against the GFF.
- Assuming
that Article 1 of Protocol No. 1 is applicable to the “transfer
of possession of the federative rights to the player” between
the applicant and Dinamo FC, as the Bureau of the FIFA Players'
Status Committee put it in its decision of 6 September 1999 (see
paragraph 19 above), the Court observes that the respondent State's
role in that connection was limited to the annulment by the
Vake-Saburtalo District Court of the transfer agreement by a final
decision of 13 July 1998.
- Recalling
that Protocol No. 1 to the Convention only entered into force with
respect to Georgia on 7 June 2002, the Court finds that this part of
the application is incompatible ratione temporis with the
provisions of the Convention, and must therefore be rejected pursuant
to Article 35 §§ 3 and 4.
- As
to the complaint that the domestic courts did not entertain its
civil action against the GFF, the Court notes that the applicant
had never been entitled, either by statute or a binding
court decision, to be paid compensation by the GFF. As
Article 1 of Protocol No. 1 does not guarantee the right to acquire
property (see, among others, Van der Mussele v. Belgium,
judgment of <23 November
1983>, Series A no. 70,
p. 23, § 48 ; mutatis mutandis, Polacek and
Polackova v. Czech Republic (dec.), [GC], no. 38645/97,
10 July 2002), this limb of the complaint under Article 1 of
Protocol No. 1 is manifestly ill-founded and must be rejected
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed in respect of pecuniary damage the same amounts
which it had requested in the course of the second set of domestic
proceedings - USD 9,600,000 and GBP 2,812,500 (totalling
EUR 11,750,000). According to the applicant's calculations,
these were the arrears which it should have received from Dinamo FC
under the transfer agreement of 11 July 1992.
- The
applicant submitted that it had no claim for non-pecuniary damage.
- The
Government submitted that the claim for pecuniary damage was
unsubstantiated and excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage requested. It cannot speculate about the
outcome of the domestic proceedings had they been in conformity with
Article 6 § 1 (see Teltronic-CATV, cited above, §
69). The Court therefore rejects the applicant's claim.
- In
the absence of any request for non-pecuniary damage, the Court is not
called on to make any award of that kind (see Amat-G Ltd and
Mebaghishvili v. Georgia, no. 2507/03, § 72,
ECHR 2005 ...).
- However,
it must be noted that a judgment in which the Court finds a violation
of the Convention or its Protocols imposes on the respondent State a
legal obligation not just to pay those concerned the sums awarded by
way of just satisfaction, but also to choose, subject to supervision
by the Committee of Ministers, the general and/or, if appropriate,
individual measures to be adopted in its domestic legal order to put
an end to the violation found by the Court. The respondent State is
expected to make all feasible reparation for the consequences of the
violation in such a manner as to restore as far as possible the
situation existing before the breach (see Apostol v. <<Georgia>>,
no. 40765/02, § 71, ECHR 2006 ; Assanidze
v. Georgia [GC], no. 71503/01, § 198,
ECHR 2004-II; Maestri v. Italy [GC], no. 39748/98,
§ 47, ECHR 2004-I). Consequently, having regard to its
finding in the instant case, and without prejudice to other possible
measures remedying the unjustified denial of the applicant's
right of access to the cassation court (see, mutatis
mutandis, Papamichalopoulos and Others v. Greece
(Article 50), judgment of 31 October 1995, Series A no. 330-B,
pp. 58-59, § 34), the Court considers that the most appropriate
form of redress would be to have the applicant's cassation
appeal of 5 January 2004 (see paragraph 26 above) examined
by the Supreme Court, in accordance with the requirements of
Article 6 § 1 of the Convention, should the applicant so request
(see, Mehmet and Suna Yiğit v. Turkey, no. 52658/99,
§ 47, 17 July 2007; mutatis mutandis, Gençel
v. <<Turkey>>,
no. 53431/99, § 27, 23 October 2003).
B. Costs and expenses
- The
applicant also claimed reimbursement of the court fee of GEL 5,000
(EUR 2,200) paid to the Tbilisi Regional Court in the proceedings
against the GFF at first instance (see paragraph 24 above). No claim
was made with respect to the Strasbourg proceedings.
- The
Government did not comment in reply.
- The
Court recalls that, where a violation of the Convention has been
found, it may award the applicant the costs and the expenses incurred
before the national courts for the prevention or redress of the
violation. However,
as the only violation found in the instant case relates to the
lack of access to the cassation court, the Court does not consider it
necessary to order the reimbursement of the costs and expenses
incurred at the first level of jurisdiction (see, among other
authorities, Papon v. France, no. 54210/00, § 115,
ECHR 2002 VII). This claim must accordingly be dismissed.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint of an
unjustified denial of access to the Supreme Court admissible and the
remainder of the application inadmissible;
- Holds by 4 votes to 3 that there has been a
violation of Article 6 § 1 of the Convention;
- Dismisses unanimously the applicant's claim for
just satisfaction.
Done in English, and notified in writing on 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F. Tulkens
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following joint partly dissenting
opinion of Mr Türmen, Mrs Mularoni and Mr Popović is
annexed to this judgment.
F.T.
F.E-P.
JOINT PARTLY DISSENTING OPINION OF JUDGES TÜRMEN,
MULARONI AND POPOVIĆ
We regret we are unable to agree with the majority, which found a
violation of Article 6 §1 of the Convention in this case.
We observe that:
a) the amount of the contested fee was the equivalent of 2,200 EUR, a
sum that cannot be considered disproportionate as such and given the
value of the damages sought and the applicant's capacity (a football
club of primary level);
b) it clearly appears from the file that the applicant did not prove
before national jurisdictions its insolvency. On April 2003, the
Tbilisi Regional Court refused to defer payment on the ground that
“the applicant's request was not substantiated by evidence of
insolvency”. In its cassation appeal of 5 January 2004,
the applicant limited itself to state that “it had suspended
its activities because of financial problems (near bankruptcy)”;
c) in January 2001, the applicant company had been paid by DINAMO FC
a debt of USD 300,000= (EUR 236,000=).
Under these circumstances, we consider that the refusal by national
jurisdictions to award the applicant's request for partial or full
exemption from court fees is justified and does not amount to a
denial of access to court.
We'd like to make two additional remarks as to the arguments used by
the majority to find a violation of Article 6 §1.
1) The main piece of evidence supporting the majority's
arguments about the applicant's insolvency is the auditor's
report of 15 March 2005, a paper prepared long after January 2004,
when the final decision was adopted by the Supreme Court;
2) it is not for our Court to impose on national
jurisdictions “to request parties more information” or
“to try to obtain, either from the applicant or the competent
authorities, any supplementary proof” in the examination of a
civil case (see in this respect §§ 44, 45 and 46 of the
judgment), the rule being that it is for the parties to adduce
evidence and not for the courts to invite parties to do so.
If parties do not substantiate their claims with appropriate
evidence, they only have to blame themselves for the negative outcome
of a case.
