Klaus and Yuri Kiladze v Georgia
Case No. 7975/06
Judgment date: 2 February 2010
The applicants’ father was executed in 1937 and their mother was sent to a GULAG (corrective labour camp) in 1938 for alleged crimes against the Soviet regime. Their parents’ flat in Tbilisi and all their belongings were confiscated. The applicants spent two years in an orphanage in Russia in cramped and unsanitary conditions before being able to return to Georgia. In 1956 and 1957 the applicants’ mother and father were rehabilitated.
The applicants were recognised as victims of political repression in 1998. In 2005 they applied to the Georgian domestic courts seeking compensation on the basis of Article 9 of the Law on the Recognition of Citizens of Georgia as Victims of Political Repressions and Social Security of the Repressed of 11 December 1997 (the 1997 law). Ultimately, the Supreme Court concluded that as no regulatory act relating to the payment of compensation, as referred to in Article 9 of the 1997 law, had been adopted, the applicants’ request could not be granted.
The Government argued that the case was inadmissible ratione temporis. The Court considered however, that the right granted by the 1997 law prior to Georgia’s ratification of Protocol No. 1 was still in effect and the applicants continued to suffer as a result of the Government’s failure to legislate in this regard. The Court dismissed the Government’s objections based on incompatibility ratione materiae as when the domestic proceedings began the applicants possessed, by virtue of the 1997 law, a debt sufficiently established to be payable.
As for the merits, the Court found that it was the Government’s failure to adopt the necessary laws to determine the amount of compensation and the rules for its payment which had restricted the applicants’ effective exercise of the right protected by Article 1 of Protocol 1. Moreover, the Court found that the State had not provided convincing or reasoned arguments to explain its failure, nor had it shown readiness to address the root causes of that failure. It had placed a disproportionate and excessive burden on the applicants that could not be justified by the public interest. Thus, the Court found a violation of Article 1 of Protocol 1.
The Court awarded 4,000 EUR to each applicant in moral damages.
Under the Article 46 (execution of judgments) Georgia was required to introduce rapidly the necessary legislative, administrative or budgetary measures to remedy the rights of those people, similar to the applicants. As a result, in 2011 legislative amendments were introduced allowing victims of Soviet repression and their first generation heirs to apply for compensation at the Tbilisi City Court. These amendments saw several thousands of applications submitted to the Tbilisi City Court, however, these applications resulted in derisory sums of money (from 46 EUR to 230 EUR), and therefore failed to live up to the requirements of adequate and fair compensation under Article 1 of Protocol 1 ECHR.
To remedy the flaws in the practice of the national courts in implementing the Kiladze judgment, in 2012 GYLA and EHRAC submitted a follow-up application to the ECtHR. In Burdiashvili and others v Georgia (No. 26290/12) the applicants asserted that the national courts had rendered the legislative amendments wholly ineffective, failing to remedy the previous situation and put an end to the violation of their property rights. The applicants asserted that serious procedural flaws in determining the amount of compensation violated the rights to fair trial and property (Article 6 and Article 1 of Protocol 1 ECHR).
In response to the application in the Burdiashvili case (communicated on 23 September 2013), and taking into account recommendations submitted by EHRAC and GYLA to the Committee of Minsters of the Council of Europe on the execution of the Kiladze judgment, the Government presented further legislative amendments with the aim of making the current compensation mechanism more effective, which were adopted by Parliament on 31 October 2014. Under the amendments, which are due to take effect on 1 January 2015, Courts will grant a fixed amount of compensation – the minimum being 1000 GEL (432 EUR) and the maximum 2000 GEL (865 EUR) – to be calculated based on the gravity of the violation suffered. Those who have already received compensation below this fixed amount will be entitled to apply anew and the sum will be paid in one year from the date of the new judgment. Once the amendments come into force, the intended effect will be that the survivors of Soviet repression or their heirs in Georgia will be awarded more adequate compensation than current practice allows.