I incorrectly predicted that there's no violation of human rights in SCHRADE v. GEORGIA.

Judgment

FIFTH SECTION

CASE OF SCHRADE v. GEORGIA

(Application no. 15016/07)

JUDGMENT

STRASBOURG

11 March 2021

This judgment is final but it may be subject to editorial revision. In the case of Schrade v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, Lɘtif Hüseynov, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,
Having deliberated in private on 11 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns, in particular, the alleged delay in the examination of two sets of civil proceedings initiated by the applicant and, in that context, the alleged absence of an effective domestic remedy. The applicant complained under Articles 6 § 1 and 13 of the Convention, and Article 1 of Protocol No. 1. THE FACTS
2. The applicant was born in 1934 and lives in Berlin-Mahlow. He was represented before the Court by Mr I. Kandashvili, Mr H. von Sachsen‐Altenburg, and Ms N. Andronikashvili, lawyers practising in Tbilisi. 3. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 2005 Global Access Georgia Ltd (hereinafter “Global Access Georgia”) published an English-language booklet for foreign tourists and visitors in Georgia under the title of “Your personal Connection for Doing Better Business in Georgia and the Caucasus Region”. The booklet featured the applicant’s photograph, entitled “Gurjaani Church”, which had been copied from the 1986 German publication – “Georgien Wehrbauten und Kirchen”. 6. On 7 September 2005 the applicant lodged a claim with the Tbilisi City Court seeking damages from Global Access Georgia over the violation of his intellectual property rights for purported unauthorised use of his photograph. On 9 September 2005 the Tbilisi City Court rejected the claim as inadmissible. The court held that the applicant did not have a standing to assert the rights argued. 7. On 22 November 2005 the applicant appealed against the decision of the first-instance court. On 15 December 2005 the Tbilisi Court of Appeal refused to entertain the applicant’s appeal on account of the non-payment of court fees. 8. On 12 January 2006 the applicant reapplied to the Tbilisi Court of Appeal, indicating that court fees did not apply to the disputes related to intellectual property under the law applicable at the material time. 9. On 22 March 2006 the Tbilisi Court of Appeal allowed the applicant’s appeal, finding that he had standing to bring the proceedings. By the same decision, the court remitted the case to the first-instance court for examination on merits. The applicant alleged that his case had been pending before the Tbilisi City Court since then. The Government, on their part, provided a copy of a decision dated 18 April 2006, according to which the Tbilisi City Court had rejected the applicant’s claim for being lodged by an unauthorised representative. 10. In late 2004 the applicant discovered that a Georgian company, Artanuji Publishing House (hereinafter “Artanuji”), had unlawfully reproduced his copyrighted fifty-seven photographs in its various publications of history textbooks for Georgian secondary schools. 11. On 24 January 2005 the applicant lodged a claim with the Tbilisi Regional Court against Artanuji and its chief-executive officer, B.K. The applicant sought 171,680 Georgian laris (GEL) (approximately 85,000 euros (EUR) at the time) in pecuniary and non-pecuniary damages for the copyright violations. On 24 February 2005 Artanuji lodged a preliminary objection with the court arguing that the applicant did not have standing to pursue the claim. According to the respondent, the applicant did not own the impugned intellectual-property rights. It was a German publishing house that was the actual owner. Court hearings were held on 25 March, 4 and 19 May, and 2, 23, and 29 June 2005. At the latter date the court ordered an expert examination of the photographs at issue at the National Forensic Bureau (“the NFB”). 12. On 15 July 2005 the applicant was informed that his case had been transferred to the Tbilisi City Court due to the change of jurisdiction of the courts following the amendments to the Code of Civil Procedure. 13. On 5 December 2005 the applicant’s representatives enquired with the NFB about the progress of the expert examination ordered within the scope of the pending proceedings. In the absence of a reply, by a letter of 21 February 2006 they requested updated information about the proceedings from the Tbilisi City Court. While complaining about the eight-month staying of the proceedings, the applicant’s representatives asked the court to indicate a possible date for the next hearing. Their letter was left unanswered. On 1 March 2006 they sent another letter this time to the chair of the Tbilisi Court of Appeal. In reply, on 9 March 2006 the applicant’s representatives were told that the case file of the applicant was still with the NFB. 14. On 14 March 2006 the applicant wrote again to the NFB. No reply followed. 15. The case file before the Court contains a letter dated 18 August 2005 according to which there was no art expert working at the NFB who could have conducted the expert examination ordered by the appellate court and for lack of financial means the NFB could not have outsourced the examination. Accordingly, the NFB informed the Tbilisi City Court of its inability to conduct the requested expert examination and sent the case file back to the court. According to a note made on the letter, the relevant case file was received back by the Tbilisi City Court on 14 March 2007. 16. On 14 June 2007 the Tbilisi City Court resumed the proceedings in the case. After conducting two hearings, on 31 July 2007 the Tbilisi City Court rejected the applicant’s claim as unsubstantiated. 17. On 14 September 2007 the applicant appealed against the decision of the Tbilisi City Court. According to the applicant, at least five hearings were held in 2008, another five hearings in 2009, and ten hearings in 2010. The applicant failed to submit minutes of the relevant hearings, however, as is apparent from the case file the hearings before the Tbilisi Court of Appeal were adjourned on several grounds. Thus, on 5 June 2008 the Tbilisi Court of Appeal ordered an expert technical examination of the photographs. In view of the results of the examination, on 29 December 2008 the applicant’s representatives lodged an application with the Tbilisi Court of Appeal, asking for a two-month adjournment in order to organise an additional technical examination in Germany. At the hearing of 22 January 2009, they reiterated their application. The appellate court postponed the hearing until 30 January 2009 and invited the parties to settle the case. On 13 February 2009 the Tbilisi Court of Appeal, acting following an application by the applicant’s representative, stayed the proceedings and granted the applicant two months in order to arrange for an expert examination in Germany. More adjournment applications were granted by the appellate court in 2010. Notably, the hearing of 21 January 2010 was adjourned following an application by the applicant until 25 February 2010; the hearings of 10 and 22 June 2010 were adjourned following applications by the responding party with the consent of the applicant’s representatives until 22 June and 8 July 2010 accordingly. 18. On 26 July 2010 the Tbilisi Court of Appeal, following an appeal by the applicant, overturned the judgment and allowed the applicant’s claim in part. The court found a violation of the applicant’s intellectual property rights in 152 instances in respect of fifty-seven photographs for which the applicant was awarded GEL 3,090 (approximately EUR 1,500) in pecuniary and non-pecuniary damages and GEL 500 (approximately EUR 250) and EUR 24 in legal costs and expenses. 19. Both parties lodged appeals on points of law with the Supreme Court of Georgia. The applicant argued that the damages awarded had been disproportionately small. 20. By a decision of 10 February 2011, the Supreme Court rejected both appeals on points of law as inadmissible. 21. Section 2(2)(e) of the Disciplinary Liability of Judges Act of 23 February 2000 (“the Disciplinary Liability of Judges Act”), as in force at the material time, provided, inter alia, for the following type of disciplinary offence – “unreasonable delay in the examination of a case, failure by a judge to perform or inappropriate performance of judicial duties, and/or other breach of judicial discipline.”
22. Section 4(1) of the above-mentioned Act provided a list of the various available disciplinary penalties in order of severity: admonishment, reprimand, rebuke and dismissal from the judicial post. 23. Under section 6(1) of the Act, any interested party could request the initiation of disciplinary proceedings against a judge. It was then at the discretion of judicial officials to initiate proceedings, in accordance with section 7(1) of the Act, in the following order:
“1. Disciplinary proceedings against a judge ... may be initiated by:
a) the President (or the acting President) of the Supreme Court of Georgia – against judges of the Supreme Court of Georgia, the courts of appeal and district (city) courts;
b) the President (or the acting President) of a court of appeal – against judges of the respective court of appeal, as well as against judges of the district (city) courts within the jurisdiction of the above court of appeal;
2. The High Council of Justice of Georgia ... against all judges of the common courts of Georgia.”
24. The Act further provided that the relevant judicial officer had two months at his or her disposal to conduct a preliminary examination of the grounds of the request. It was possible to extend the above time-limit by two weeks, after which they could either leave the request unexamined (for an inability to examine it), terminate the disciplinary proceedings, or summon the respective judge for an interview. No appeal lay against the decision of the relevant judicial official to terminate disciplinary proceedings. If proceedings were initiated, the subsequent two-tier procedure provided for an adversarial hearing before the disciplinary board of courts of common jurisdiction and at the appeal instance before the Disciplinary Chamber of the Supreme Court. THE LAW
25. In his observations submitted in reply to those of the Government the applicant complained under Article 3 of the Convention of the continuous suffering and discrimination he had allegedly endured on account of excessive bureaucracy and inadequate administration of justice in Georgia. The Court notes that the applicant introduced the above complaint only in his observations following the communication of the application. It cannot be considered as an elaboration of the applicant’s original complaints. Consequently, it falls outside the scope of the current application (compare, for instance, Saghinadze and Others v. Georgia, no. 18768/05, §§ 71 and 72, 27 May 2010 with further references therein). 26. The applicant complained that the overall duration of both sets of civil proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. He further complained, under Article 13, in connection with the Article 6 complaint, that there had been no effective remedy in the domestic system. In connection with the civil proceedings conducted against Global Access Georgia he in addition relied on Article 1 of Protocol No. 1 to the Convention. The relevant parts of the Articles read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol no. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
27. The Government argued in the first place that the present application, as far as the proceedings against Global Access Georgia were concerned, had to be dismissed as an abuse of the right of application because the applicant had knowingly failed to provide all the facts relevant for the examination of the case. In particular, they provided the Court with a copy of a decision dated 18 April 2006, according to which the Tbilisi City Court had rejected the applicant’s claim for being lodged by an unauthorised representative. The Government claimed that by failing to inform the Court for more than eleven years of the above decision of the Tbilisi City Court, the applicant and his representatives had aimed at misleading the Court. The applicant’s failure to act diligently vis-à-vis the Court under Article 47 § 7 of the Rules of the Court (former Rule 47 § 6) had been tantamount, in the Government’s view, to an abuse of the right of individual application under Article 35 § 3 (a) of the Convention. 28. In addition, as far as the complaint under Article 1 of Protocol No. 1 was concerned, the Government submitted that it was in any event manifestly ill-founded, as the applicant had failed to appeal against the court decision of 18 April 2006; thus, there had been no domestic decision which could have given rise to the applicant’s legitimate expectations over property rights. 29. The applicant disagreed, noting that he had never been informed of the domestic court’s decision of 18 April 2006. He alleged that that decision had never been delivered to him or, in the alternative, that it had been retroactively fabricated. 30. The Court does not need to examine the Government’s plea of abuse of the right of petition, since the applicant’s relevant complaints are in any event inadmissible. 31. In particular, without there being a need to decide whether the decision of 18 April 2006 was fabricated, as alleged by the applicant, the Court notes that the applicant failed to show that throughout the relevant period of twelve years (between 22 March 2006, when his case was remitted to the first-instance court, and 21 June 2018, when he received a copy of the Government’s observations) he had enquired about the progress of those proceedings or had complained about their protracted duration to the domestic court before which they were pending. This is particularly surprising, seeing that in the second set of similar proceedings to which the applicant was a party, he regularly made such complaints (see paragraphs 13-14 above). In the light of all relevant facts, the Court finds that the applicant’s claim that the proceedings against Global Access Georgia were still pending after 2006 is unsubstantiated. It thus accepts the Government’s argument and rejects the applicant’s relevant complaint under Article 6 § 1 of the Convention as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 32. The applicant’s complaints under Article 13 of the Convention is inextricably linked to the one examined above and must therefore likewise be declared inadmissible as being manifestly ill-founded (see Kvantaliani v. Georgia (dec.), no. 38736/05, § 31, 27 September 2016). 33. As for the complaint under Article 1 of Protocol No. 1, the Court finds that the applicant failed to pursue his claim. It follows that the applicant failed to exhaust domestic remedies. His complaint under Article 1 of Protocol No. 1 must accordingly be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention (see Pečenko v. Slovenia (dec.) [Committee], no. 39485/14, § 47, 6 March 2018). 34. The Government pleaded non-exhaustion of domestic remedies under Article 35 § 1 of the Convention. In reply, the applicant submitted that there were no effective domestic remedies against the unreasonable length of proceedings in Georgia. 35. The Court observes that the question of whether the requirement that an applicant must exhaust domestic remedies has been satisfied in the instant case is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention. It therefore considers that the non-exhaustion objection, raised by the Government under Article 6 § 1 of the Convention, should be joined to the merits of the complaint under Article 13 (see, among many other authorities, Fil LLC v: Armenia, no. 18526/13, § 44, 29 January 2019; Wcisło and Cabaj v. Poland, nos. 49725/11 and 79950/13, § 123, 8 November 2018; Balogh and Others v. Slovakia, no. 35142/15, § 43, 31 August 2018; and Antoni v. the Czech Republic, no. 18010/06, § 26, 25 November 2010). 36. The Court further notes that the length-of-proceedings complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. Nor it is inadmissible on any other grounds. For similar reasons, it finds the complaint arguable for the purposes of Article 13 of the Convention. Therefore, the complaints under Article 6 § 1 and Article 13 of the Convention are admissible. The Court finds it appropriate to first examine the issue of availability of effective domestic remedies for the applicant’s complaint under Article 6 § 1 of the Convention. 37. The applicant complained of the fact that in Georgia there was no court to which application could be made to complain of the excessive length of proceedings. 38. The Government maintained that the applicant could have complained of excessive length of the proceedings in question to the President of the Supreme Court, the President of the Court of Appeal, and/or the High Council of Justice. They referred in this connection to the relevant provisions of the Disciplinary Liability of Judges Act, under which any interested party could take disciplinary action against a judge in connection with an unreasonable delay in the examination of his or her case (see sections 2 and 6 of that Act referred to in paragraphs 21 and 23 above). In support of their argument they submitted a letter from the High Council of Justice according to which in between 2006 and 2008 fourteen judges were found disciplinarily liable for unreasonable delay in the examination of cases. The Government argued that the imposition of a disciplinary measure on a judge such as a reprimand could have accelerated the examination of the case. The fact that the applicant had not availed himself of this remedy was indicative, according to the Government, of the applicant’s subjective indifference regarding the length of the domestic proceedings. 39. The Court has consistently held that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudła v. Poland [GC], no. 30210/96, § 158, 26 October 2000). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudła, cited above, § 159; for the most recent summary of the relevant principles, see Keaney v. Ireland, no. 72060/17, §§ 107-111, 30 April 2020). 40. Turning to the circumstances of the current case, the Court notes that the Government did not submit that there was a compensatory remedy available to the applicant. Thus, the only issue that the Court has to examine is whether a disciplinary action, as proposed by the Government, was indeed available to the applicant and was effective in theory and practice for the purpose of expediting the ongoing proceedings. 41. To start with, the Court has already dealt with the question of the effectiveness of disciplinary actions against individual judges, albeit in relation to other member States, and found that when a disciplinary sanction concerned only the personal position of the responsible judge and in the absence of “direct and immediate consequence for the proceedings which have given rise to the complaint” it was not an effective for the purpose of speeding up the proceedings (see Kormacheva v. Russia, no. 53084/99, § 62, 29 January 2004; Efimenko v. Ukraine, no. 55870/00, § 49, 18 July 2006, and Moroz and Others v. Ukraine, no. 36545/02, § 47, 21 December 2006; see also, mutatis mutandis, Constantin Oprea v. Romania, no. 24724/03, § 41, 8 November 2007). There is no basis for the Court to reach a different conclusion in the current case. The Government failed to provide a single example of an individual having succeeded in speeding up court proceedings by using this procedure. From the materials the Government submitted (see paragraph 38 above) it is unclear whether the outcome of the disciplinary proceedings had any effect whatsoever on the length of the original proceedings (see, for example, Sürmeli v. Germany [GC], no. 75529/01, § 106, ECHR 2006‐VII, where the Court concluded that the Government had failed to demonstrate that the possibility of complaining about length of proceedings to the Federal Constitutional Court could lead to them being expedited; see also, mutatis mutandis, Belinger v. Slovenia (dec.), 42320/98, 2 October 2001). In any event, the relevant legislation seems to indicate that this remedy was not independent of discretionary action by the authorities, as the decision whether or not to initiate proceedings had to be taken by a relevant judicial official; no appeal against a refusal not to initiate those proceedings was available (see, mutatis mutandis, Veiss v. Latvia, no. 15152/12, § 68, 28 January 2014, and Lukenda v. Slovenia, no. 23032/02, § 63, ECHR 2005‐X; see also, mutatis mutandis, Horvat v. Croatia, no. 51585/99, § 41, ECHR 2001‐VIII). The Government also did not argue that a finding of unjustified delay in the context of the disciplinary proceedings could have served as a basis for a claim for damages. 42. To conclude, a disciplinary complaint such as that available to the applicant in the pending case cannot be regarded as an effective remedy within the meaning of the Convention in relation to the length‐of‐proceedings complaint. The Government, thus, failed to show, in the particular circumstances of the current case, that there was a domestic procedure enabling the applicant to complain of the excessive length of the proceedings and that that remedy was both legally and practically effective. There has accordingly been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, and the Government’s non-exhaustion objection in relation to the applicant’s complaint under the latter provision must be dismissed. 43. The applicant maintained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. He complained, in particular, of the delay at the first-instance and appellate stages. 44. The Government contested that argument. They claimed that major judicial reform, particularly the reorganisation of the first-instance courts in Georgia at the material time, had caused a delay in the examination of the applicant’s case. They further submitted that the case had been factually complex; it had included several rounds of negotiations between the parties aimed at securing a friendly settlement; and that the applicant had contributed to the overall length by lodging a number of adjournment applications. 45. In their additional observations, the Government referred to the Court’s inadmissibility decisions in the previous two cases concerning the applicant (Schrade v. Georgia (dec.), no.9289/08, 2 February 2016, and Schrade v. Georgia (dec.), no. 52240/07, 26 April 2016) and argued that the overall length of the proceedings in the current case had not gone beyond what might be considered “reasonable” within the meaning of Article 6 § 1 of the Convention. 46. According to the case-law of the Court on Article 6 § 1 of the Convention, the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 143, 29 November 2016; Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; and Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000‐IV). 47. Turning to the circumstances of the current case, the Court notes that, having begun on 24 January 2005 and concluded on 10 February 2011, the duration of the proceedings at issue was slightly over six years at three levels of jurisdiction. It further notes that the proceedings in question cannot be said to have been particularly complex. At the same time, while the case did not belong to a category that by its own nature would call for a special expedition (see Sürmeli, cited above, § 133, ECHR 2006‐VII), what was at stake to the applicant still required a reasonably expeditious decision, particularly given his age (compare Pantaleon v. Greece, no. 6571/05, § 25, 10 May 2007). 48. As to the parties’ conduct, as is apparent from the case file and from the parties’ observations, two main factors contributed to the overall length of the proceedings: the two-year period of inactivity at the first level of jurisdiction between June 2005 and June 2007; and protracted appeal proceedings marred by multiple adjournments between September 2007 and July 2010. 49. The Court will start its examination with the appeal proceedings. According to the case file, they were protracted because of, among other things, the applicant’s applications for adjournment, of which there were several (see paragraph 17 above). At least on one occasion they were stayed on account of the applicant’s application to have an expert examination arranged in Germany (ibid.). The applicant failed to point out any major period of inactivity on the part of the appellate court. As for the several applications lodged by respondent parties for adjournment, they were granted by the appellate court with an explicit consent of the applicant for the purpose of facilitating, inter alia, friendly settlement negotiations (ibid.). In such circumstances, while the protraction at the appeal stage cannot be attributed solely to the applicant’s conduct, it can also not be held against the Government (compare Johanna Fröhlich v. Germany, no. 16741/16, § 41, 24 January 2019). In any event, the applicant failed to provide the Court with further information regarding the number of hearings held by the appellate court or the overall conduct of the domestic authorities (ibid.). In view of the above-mentioned facts, the Court considers that the applicant failed to sufficiently justify his allegation concerning the respondent State’s unjustified contribution to the length of the appeal proceedings. 50. As to the first level of jurisdiction, the Court notes that the applicant and his representatives did not cause the delay to the proceedings. While in their observations both parties failed to clarify the circumstances of the failure of the NFB to conduct the requested expert examination and the exact impact it had had on the delay in the proceedings (see, in this connection, paragraphs 13-15 above), it is obvious that the stay of the proceedings at this stage for almost two years, whatever the role of the NFB, was attributable to the Government. The Court reiterates in this connection that even where civil proceedings are governed by the principle of the free disposition of the parties, which implies the parties’ responsibility for the proceedings, it is incumbent on the State to organise its judicial system in such a way that the requirement of a trial within a reasonable time is complied with (see Erfar‐Avef v. Greece, no. 31150/09, § 58, 27 March 2014, with further references therein; see also Gisela Müller v. Germany, no. 69584/01, § 86, 6 October 2005). In cases in which the cooperation and/or engagement of experts proves necessary, it is the responsibility of the domestic courts to ensure that the proceedings are not excessively prolonged (see Johanna Fröhlich, cited above, § 42 with further references therein; see also Stojanov v. the former Yugoslav Republic of Macedonia, no. 34215/02, § 60, 31 May 2007, and Ziaja v. Poland (dec.) [Committee], no. 45751/10, § 44, 16 May 2019)). 51. In the case at hand the first-instance court’s conduct after the request for an expert examination had been sent to the NFB cannot be viewed as diligent. In the absence of an explanation from the Government it is not clear whether and if so when the first-instance court received the letter from the NFB informing the former that they were not in a position to conduct the examination requested. In any event, either the two-year failure to follow up on the inactivity of the NFB or the two-year failure to order the required expert examination elsewhere led to total stay of the proceedings for two years. 52. The Court notes that in the relevant period the applicant’s case was transferred from the Tbilisi Regional Court to newly created Tbilisi City Court. It cannot in this connection overlook the major structural reform of the judiciary which was under way in Georgia at the material time (see in this regard paragraph 12 above, and Kvantaliani, cited above, § 29; compare O’Leary v. Ireland (dec.) [Committee], no. 45580/16, § 41, 14 February 2019). However, this could hardly serve as a valid excuse for a total inactivity for two years, since the general principle under Article 6 § 1 of the Convention is that it always remains the responsibility of the Contracting States to organise their courts in such a way as to guarantee everyone’s right to the determination of their civil rights and obligations “within a reasonable time” (see Kharitonashvili v. Georgia, no. 41957/04, § 44, 10 February 2009, and G.H. v. Austria, no. 31266/96, § 20, 3 October 2000). Against this background the period of inactivity leading to the total length of two and a half years before the first instance court cannot be considered as justified. 53. In their observations the Government referred to the Court’s inadmissibility decisions in the two previous cases lodged by the applicant (see Schrade v. Georgia, no. 9289/08, 2 February 2016, and Schrade v. Georgia, no. 52240/07, 26 April 2016). In those cases, however, the proceedings lasted relatively short (less than four years in the first case, and four years and four months – in the second case, respectively) with several rounds of re-examination and the applicant having contributed to their overall length (see, in particular, ibid. §§ 29, and 34-36 respectively). Moreover, as far as the second case is concerned, it differed also in terms of what was at the stake for the applicant (while it concerned the unlawful reproduction of one photograph, in the current case what was at stake was the 152 instances of reproduction in respect of fifty-seven photographs). In view of the above, the Court considers that the current case is substantially different. 54. To conclude, having regard to the criteria set out in paragraph 46 above, the Court considers that the length of the proceedings in the current case was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention. 55. 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.”
56. The applicant claimed various sums in respect of non-pecuniary damage, including EUR 15,000 in view of the length, outcome and manner his civil case against Global Access of Georgia had unfolded, and EUR 33,000 on account of the length of the proceedings in the case against Artanuji. He also claimed EUR 555.78 on account of the pecuniary damage allegedly sustained as a result of the unauthorised use by Global Access of Georgia of his photographs, and EUR 15,200 in respect of Artanuji on the same basis. In this connection, he also claimed, without specifying the amounts or providing any relevant financial or other documents, the reimbursement of personal expenses incurred in connection with the initiation of the civil proceedings in Georgia, such as costs related to his travel and stay in Georgia. 57. The Government submitted that part of the claims, such as those related to the criminal complaint and pecuniary damage on account of the unauthorised use of his photographs, were unrelated to the subject matter of the application, which was connected to the length of the civil proceedings and the related issue of the availability of a domestic remedy. They further alleged that the remaining claims were either unsubstantiated, including those related to the travel and stay costs of the applicant in Georgia, or highly exorbitant. 58. The Court notes that it has found violations in the current case only as far as the civil proceedings against Artanuji are concerned. Further, it does not discern any causal link between the essentially procedural violations of Articles 6 § 1 and 13 which it has found and the pecuniary damage alleged by the applicant; it therefore rejects this claim. On the other hand, it awards the applicant EUR 600 in respect of the non‐pecuniary damage sustained by him by reason of the violations found. 59. The applicant claimed EUR 2,000 for the legal costs incurred before the domestic courts and EUR 3,500 for the costs related to his legal representation before the Court as far as the proceedings against Global Access of Georgia were concerned. In connection with the case against Artanuji, he in addition claimed EUR 12,300 for the legal costs incurred before the domestic courts and EUR 5,400 for his legal representation before the Court. The applicant also requested the reimbursement of some expert-work-related costs. 60. The Government contested these claims. They stressed that the applicant had failed to submit the required documentary evidence, such as invoices or other financial documents proving that these costs had actually been incurred. As for the legal-service contract submitted in relation to the case of Global Access of Georgia, it neither set out the hourly rates of the applicant’s representatives, nor itemised the work they had performed. In addition, according to the Government, the applicant had failed to show the necessity of his having been represented by several lawyers in the proceedings before the national courts and the Court. As for the Artanuji proceedings, the Government noted that while the applicant had failed to submit a copy of a contract with the respective representative, the hourly rates and the amount of hours allegedly spent on the case were highly excessive and unreasonable. 61. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the absence of relevant documents, the Court decides that no award shall be made under this head. 62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 600 (six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 11 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Mārtiņš MitsDeputy Registrar President

FIFTH SECTION

CASE OF SCHRADE v. GEORGIA

(Application no. 15016/07)

JUDGMENT

STRASBOURG

11 March 2021

This judgment is final but it may be subject to editorial revision. In the case of Schrade v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President, Lɘtif Hüseynov, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,
Having deliberated in private on 11 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns, in particular, the alleged delay in the examination of two sets of civil proceedings initiated by the applicant and, in that context, the alleged absence of an effective domestic remedy. The applicant complained under Articles 6 § 1 and 13 of the Convention, and Article 1 of Protocol No. 1. THE FACTS
2. The applicant was born in 1934 and lives in Berlin-Mahlow. He was represented before the Court by Mr I. Kandashvili, Mr H. von Sachsen‐Altenburg, and Ms N. Andronikashvili, lawyers practising in Tbilisi. 3. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 2005 Global Access Georgia Ltd (hereinafter “Global Access Georgia”) published an English-language booklet for foreign tourists and visitors in Georgia under the title of “Your personal Connection for Doing Better Business in Georgia and the Caucasus Region”. The booklet featured the applicant’s photograph, entitled “Gurjaani Church”, which had been copied from the 1986 German publication – “Georgien Wehrbauten und Kirchen”. 6. On 7 September 2005 the applicant lodged a claim with the Tbilisi City Court seeking damages from Global Access Georgia over the violation of his intellectual property rights for purported unauthorised use of his photograph. On 9 September 2005 the Tbilisi City Court rejected the claim as inadmissible. The court held that the applicant did not have a standing to assert the rights argued. 7. On 22 November 2005 the applicant appealed against the decision of the first-instance court. On 15 December 2005 the Tbilisi Court of Appeal refused to entertain the applicant’s appeal on account of the non-payment of court fees. 8. On 12 January 2006 the applicant reapplied to the Tbilisi Court of Appeal, indicating that court fees did not apply to the disputes related to intellectual property under the law applicable at the material time. 9. On 22 March 2006 the Tbilisi Court of Appeal allowed the applicant’s appeal, finding that he had standing to bring the proceedings. By the same decision, the court remitted the case to the first-instance court for examination on merits. The applicant alleged that his case had been pending before the Tbilisi City Court since then. The Government, on their part, provided a copy of a decision dated 18 April 2006, according to which the Tbilisi City Court had rejected the applicant’s claim for being lodged by an unauthorised representative. 10. In late 2004 the applicant discovered that a Georgian company, Artanuji Publishing House (hereinafter “Artanuji”), had unlawfully reproduced his copyrighted fifty-seven photographs in its various publications of history textbooks for Georgian secondary schools. 11. On 24 January 2005 the applicant lodged a claim with the Tbilisi Regional Court against Artanuji and its chief-executive officer, B.K. The applicant sought 171,680 Georgian laris (GEL) (approximately 85,000 euros (EUR) at the time) in pecuniary and non-pecuniary damages for the copyright violations. On 24 February 2005 Artanuji lodged a preliminary objection with the court arguing that the applicant did not have standing to pursue the claim. According to the respondent, the applicant did not own the impugned intellectual-property rights. It was a German publishing house that was the actual owner. Court hearings were held on 25 March, 4 and 19 May, and 2, 23, and 29 June 2005. At the latter date the court ordered an expert examination of the photographs at issue at the National Forensic Bureau (“the NFB”). 12. On 15 July 2005 the applicant was informed that his case had been transferred to the Tbilisi City Court due to the change of jurisdiction of the courts following the amendments to the Code of Civil Procedure. 13. On 5 December 2005 the applicant’s representatives enquired with the NFB about the progress of the expert examination ordered within the scope of the pending proceedings. In the absence of a reply, by a letter of 21 February 2006 they requested updated information about the proceedings from the Tbilisi City Court. While complaining about the eight-month staying of the proceedings, the applicant’s representatives asked the court to indicate a possible date for the next hearing. Their letter was left unanswered. On 1 March 2006 they sent another letter this time to the chair of the Tbilisi Court of Appeal. In reply, on 9 March 2006 the applicant’s representatives were told that the case file of the applicant was still with the NFB. 14. On 14 March 2006 the applicant wrote again to the NFB. No reply followed. 15. The case file before the Court contains a letter dated 18 August 2005 according to which there was no art expert working at the NFB who could have conducted the expert examination ordered by the appellate court and for lack of financial means the NFB could not have outsourced the examination. Accordingly, the NFB informed the Tbilisi City Court of its inability to conduct the requested expert examination and sent the case file back to the court. According to a note made on the letter, the relevant case file was received back by the Tbilisi City Court on 14 March 2007. 16. On 14 June 2007 the Tbilisi City Court resumed the proceedings in the case. After conducting two hearings, on 31 July 2007 the Tbilisi City Court rejected the applicant’s claim as unsubstantiated. 17. On 14 September 2007 the applicant appealed against the decision of the Tbilisi City Court. According to the applicant, at least five hearings were held in 2008, another five hearings in 2009, and ten hearings in 2010. The applicant failed to submit minutes of the relevant hearings, however, as is apparent from the case file the hearings before the Tbilisi Court of Appeal were adjourned on several grounds. Thus, on 5 June 2008 the Tbilisi Court of Appeal ordered an expert technical examination of the photographs. In view of the results of the examination, on 29 December 2008 the applicant’s representatives lodged an application with the Tbilisi Court of Appeal, asking for a two-month adjournment in order to organise an additional technical examination in Germany. At the hearing of 22 January 2009, they reiterated their application. The appellate court postponed the hearing until 30 January 2009 and invited the parties to settle the case. On 13 February 2009 the Tbilisi Court of Appeal, acting following an application by the applicant’s representative, stayed the proceedings and granted the applicant two months in order to arrange for an expert examination in Germany. More adjournment applications were granted by the appellate court in 2010. Notably, the hearing of 21 January 2010 was adjourned following an application by the applicant until 25 February 2010; the hearings of 10 and 22 June 2010 were adjourned following applications by the responding party with the consent of the applicant’s representatives until 22 June and 8 July 2010 accordingly. 18. On 26 July 2010 the Tbilisi Court of Appeal, following an appeal by the applicant, overturned the judgment and allowed the applicant’s claim in part. The court found a violation of the applicant’s intellectual property rights in 152 instances in respect of fifty-seven photographs for which the applicant was awarded GEL 3,090 (approximately EUR 1,500) in pecuniary and non-pecuniary damages and GEL 500 (approximately EUR 250) and EUR 24 in legal costs and expenses. 19. Both parties lodged appeals on points of law with the Supreme Court of Georgia. The applicant argued that the damages awarded had been disproportionately small. 20. By a decision of 10 February 2011, the Supreme Court rejected both appeals on points of law as inadmissible. 21. Section 2(2)(e) of the Disciplinary Liability of Judges Act of 23 February 2000 (“the Disciplinary Liability of Judges Act”), as in force at the material time, provided, inter alia, for the following type of disciplinary offence – “unreasonable delay in the examination of a case, failure by a judge to perform or inappropriate performance of judicial duties, and/or other breach of judicial discipline.”
22. Section 4(1) of the above-mentioned Act provided a list of the various available disciplinary penalties in order of severity: admonishment, reprimand, rebuke and dismissal from the judicial post. 23. Under section 6(1) of the Act, any interested party could request the initiation of disciplinary proceedings against a judge. It was then at the discretion of judicial officials to initiate proceedings, in accordance with section 7(1) of the Act, in the following order:
“1. Disciplinary proceedings against a judge ... may be initiated by:
a) the President (or the acting President) of the Supreme Court of Georgia – against judges of the Supreme Court of Georgia, the courts of appeal and district (city) courts;
b) the President (or the acting President) of a court of appeal – against judges of the respective court of appeal, as well as against judges of the district (city) courts within the jurisdiction of the above court of appeal;
2. The High Council of Justice of Georgia ... against all judges of the common courts of Georgia.”
24. The Act further provided that the relevant judicial officer had two months at his or her disposal to conduct a preliminary examination of the grounds of the request. It was possible to extend the above time-limit by two weeks, after which they could either leave the request unexamined (for an inability to examine it), terminate the disciplinary proceedings, or summon the respective judge for an interview. No appeal lay against the decision of the relevant judicial official to terminate disciplinary proceedings. If proceedings were initiated, the subsequent two-tier procedure provided for an adversarial hearing before the disciplinary board of courts of common jurisdiction and at the appeal instance before the Disciplinary Chamber of the Supreme Court. THE LAW
25. In his observations submitted in reply to those of the Government the applicant complained under Article 3 of the Convention of the continuous suffering and discrimination he had allegedly endured on account of excessive bureaucracy and inadequate administration of justice in Georgia. The Court notes that the applicant introduced the above complaint only in his observations following the communication of the application. It cannot be considered as an elaboration of the applicant’s original complaints. Consequently, it falls outside the scope of the current application (compare, for instance, Saghinadze and Others v. Georgia, no. 18768/05, §§ 71 and 72, 27 May 2010 with further references therein). 26. The applicant complained that the overall duration of both sets of civil proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. He further complained, under Article 13, in connection with the Article 6 complaint, that there had been no effective remedy in the domestic system. In connection with the civil proceedings conducted against Global Access Georgia he in addition relied on Article 1 of Protocol No. 1 to the Convention. The relevant parts of the Articles read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol no. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
27. The Government argued in the first place that the present application, as far as the proceedings against Global Access Georgia were concerned, had to be dismissed as an abuse of the right of application because the applicant had knowingly failed to provide all the facts relevant for the examination of the case. In particular, they provided the Court with a copy of a decision dated 18 April 2006, according to which the Tbilisi City Court had rejected the applicant’s claim for being lodged by an unauthorised representative. The Government claimed that by failing to inform the Court for more than eleven years of the above decision of the Tbilisi City Court, the applicant and his representatives had aimed at misleading the Court. The applicant’s failure to act diligently vis-à-vis the Court under Article 47 § 7 of the Rules of the Court (former Rule 47 § 6) had been tantamount, in the Government’s view, to an abuse of the right of individual application under Article 35 § 3 (a) of the Convention. 28. In addition, as far as the complaint under Article 1 of Protocol No. 1 was concerned, the Government submitted that it was in any event manifestly ill-founded, as the applicant had failed to appeal against the court decision of 18 April 2006; thus, there had been no domestic decision which could have given rise to the applicant’s legitimate expectations over property rights. 29. The applicant disagreed, noting that he had never been informed of the domestic court’s decision of 18 April 2006. He alleged that that decision had never been delivered to him or, in the alternative, that it had been retroactively fabricated. 30. The Court does not need to examine the Government’s plea of abuse of the right of petition, since the applicant’s relevant complaints are in any event inadmissible. 31. In particular, without there being a need to decide whether the decision of 18 April 2006 was fabricated, as alleged by the applicant, the Court notes that the applicant failed to show that throughout the relevant period of twelve years (between 22 March 2006, when his case was remitted to the first-instance court, and 21 June 2018, when he received a copy of the Government’s observations) he had enquired about the progress of those proceedings or had complained about their protracted duration to the domestic court before which they were pending. This is particularly surprising, seeing that in the second set of similar proceedings to which the applicant was a party, he regularly made such complaints (see paragraphs 13-14 above). In the light of all relevant facts, the Court finds that the applicant’s claim that the proceedings against Global Access Georgia were still pending after 2006 is unsubstantiated. It thus accepts the Government’s argument and rejects the applicant’s relevant complaint under Article 6 § 1 of the Convention as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 32. The applicant’s complaints under Article 13 of the Convention is inextricably linked to the one examined above and must therefore likewise be declared inadmissible as being manifestly ill-founded (see Kvantaliani v. Georgia (dec.), no. 38736/05, § 31, 27 September 2016). 33. As for the complaint under Article 1 of Protocol No. 1, the Court finds that the applicant failed to pursue his claim. It follows that the applicant failed to exhaust domestic remedies. His complaint under Article 1 of Protocol No. 1 must accordingly be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention (see Pečenko v. Slovenia (dec.) [Committee], no. 39485/14, § 47, 6 March 2018). 34. The Government pleaded non-exhaustion of domestic remedies under Article 35 § 1 of the Convention. In reply, the applicant submitted that there were no effective domestic remedies against the unreasonable length of proceedings in Georgia. 35. The Court observes that the question of whether the requirement that an applicant must exhaust domestic remedies has been satisfied in the instant case is closely linked to the complaint concerning the existence of an effective remedy within the meaning of Article 13 of the Convention. It therefore considers that the non-exhaustion objection, raised by the Government under Article 6 § 1 of the Convention, should be joined to the merits of the complaint under Article 13 (see, among many other authorities, Fil LLC v: Armenia, no. 18526/13, § 44, 29 January 2019; Wcisło and Cabaj v. Poland, nos. 49725/11 and 79950/13, § 123, 8 November 2018; Balogh and Others v. Slovakia, no. 35142/15, § 43, 31 August 2018; and Antoni v. the Czech Republic, no. 18010/06, § 26, 25 November 2010). 36. The Court further notes that the length-of-proceedings complaint is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. Nor it is inadmissible on any other grounds. For similar reasons, it finds the complaint arguable for the purposes of Article 13 of the Convention. Therefore, the complaints under Article 6 § 1 and Article 13 of the Convention are admissible. The Court finds it appropriate to first examine the issue of availability of effective domestic remedies for the applicant’s complaint under Article 6 § 1 of the Convention. 37. The applicant complained of the fact that in Georgia there was no court to which application could be made to complain of the excessive length of proceedings. 38. The Government maintained that the applicant could have complained of excessive length of the proceedings in question to the President of the Supreme Court, the President of the Court of Appeal, and/or the High Council of Justice. They referred in this connection to the relevant provisions of the Disciplinary Liability of Judges Act, under which any interested party could take disciplinary action against a judge in connection with an unreasonable delay in the examination of his or her case (see sections 2 and 6 of that Act referred to in paragraphs 21 and 23 above). In support of their argument they submitted a letter from the High Council of Justice according to which in between 2006 and 2008 fourteen judges were found disciplinarily liable for unreasonable delay in the examination of cases. The Government argued that the imposition of a disciplinary measure on a judge such as a reprimand could have accelerated the examination of the case. The fact that the applicant had not availed himself of this remedy was indicative, according to the Government, of the applicant’s subjective indifference regarding the length of the domestic proceedings. 39. The Court has consistently held that remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they “[prevent] the alleged violation or its continuation, or [provide] adequate redress for any violation that [has] already occurred” (see Kudła v. Poland [GC], no. 30210/96, § 158, 26 October 2000). Article 13 therefore offers an alternative: a remedy is “effective” if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Kudła, cited above, § 159; for the most recent summary of the relevant principles, see Keaney v. Ireland, no. 72060/17, §§ 107-111, 30 April 2020). 40. Turning to the circumstances of the current case, the Court notes that the Government did not submit that there was a compensatory remedy available to the applicant. Thus, the only issue that the Court has to examine is whether a disciplinary action, as proposed by the Government, was indeed available to the applicant and was effective in theory and practice for the purpose of expediting the ongoing proceedings. 41. To start with, the Court has already dealt with the question of the effectiveness of disciplinary actions against individual judges, albeit in relation to other member States, and found that when a disciplinary sanction concerned only the personal position of the responsible judge and in the absence of “direct and immediate consequence for the proceedings which have given rise to the complaint” it was not an effective for the purpose of speeding up the proceedings (see Kormacheva v. Russia, no. 53084/99, § 62, 29 January 2004; Efimenko v. Ukraine, no. 55870/00, § 49, 18 July 2006, and Moroz and Others v. Ukraine, no. 36545/02, § 47, 21 December 2006; see also, mutatis mutandis, Constantin Oprea v. Romania, no. 24724/03, § 41, 8 November 2007). There is no basis for the Court to reach a different conclusion in the current case. The Government failed to provide a single example of an individual having succeeded in speeding up court proceedings by using this procedure. From the materials the Government submitted (see paragraph 38 above) it is unclear whether the outcome of the disciplinary proceedings had any effect whatsoever on the length of the original proceedings (see, for example, Sürmeli v. Germany [GC], no. 75529/01, § 106, ECHR 2006‐VII, where the Court concluded that the Government had failed to demonstrate that the possibility of complaining about length of proceedings to the Federal Constitutional Court could lead to them being expedited; see also, mutatis mutandis, Belinger v. Slovenia (dec.), 42320/98, 2 October 2001). In any event, the relevant legislation seems to indicate that this remedy was not independent of discretionary action by the authorities, as the decision whether or not to initiate proceedings had to be taken by a relevant judicial official; no appeal against a refusal not to initiate those proceedings was available (see, mutatis mutandis, Veiss v. Latvia, no. 15152/12, § 68, 28 January 2014, and Lukenda v. Slovenia, no. 23032/02, § 63, ECHR 2005‐X; see also, mutatis mutandis, Horvat v. Croatia, no. 51585/99, § 41, ECHR 2001‐VIII). The Government also did not argue that a finding of unjustified delay in the context of the disciplinary proceedings could have served as a basis for a claim for damages. 42. To conclude, a disciplinary complaint such as that available to the applicant in the pending case cannot be regarded as an effective remedy within the meaning of the Convention in relation to the length‐of‐proceedings complaint. The Government, thus, failed to show, in the particular circumstances of the current case, that there was a domestic procedure enabling the applicant to complain of the excessive length of the proceedings and that that remedy was both legally and practically effective. There has accordingly been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, and the Government’s non-exhaustion objection in relation to the applicant’s complaint under the latter provision must be dismissed. 43. The applicant maintained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. He complained, in particular, of the delay at the first-instance and appellate stages. 44. The Government contested that argument. They claimed that major judicial reform, particularly the reorganisation of the first-instance courts in Georgia at the material time, had caused a delay in the examination of the applicant’s case. They further submitted that the case had been factually complex; it had included several rounds of negotiations between the parties aimed at securing a friendly settlement; and that the applicant had contributed to the overall length by lodging a number of adjournment applications. 45. In their additional observations, the Government referred to the Court’s inadmissibility decisions in the previous two cases concerning the applicant (Schrade v. Georgia (dec.), no.9289/08, 2 February 2016, and Schrade v. Georgia (dec.), no. 52240/07, 26 April 2016) and argued that the overall length of the proceedings in the current case had not gone beyond what might be considered “reasonable” within the meaning of Article 6 § 1 of the Convention. 46. According to the case-law of the Court on Article 6 § 1 of the Convention, the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 143, 29 November 2016; Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; and Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000‐IV). 47. Turning to the circumstances of the current case, the Court notes that, having begun on 24 January 2005 and concluded on 10 February 2011, the duration of the proceedings at issue was slightly over six years at three levels of jurisdiction. It further notes that the proceedings in question cannot be said to have been particularly complex. At the same time, while the case did not belong to a category that by its own nature would call for a special expedition (see Sürmeli, cited above, § 133, ECHR 2006‐VII), what was at stake to the applicant still required a reasonably expeditious decision, particularly given his age (compare Pantaleon v. Greece, no. 6571/05, § 25, 10 May 2007). 48. As to the parties’ conduct, as is apparent from the case file and from the parties’ observations, two main factors contributed to the overall length of the proceedings: the two-year period of inactivity at the first level of jurisdiction between June 2005 and June 2007; and protracted appeal proceedings marred by multiple adjournments between September 2007 and July 2010. 49. The Court will start its examination with the appeal proceedings. According to the case file, they were protracted because of, among other things, the applicant’s applications for adjournment, of which there were several (see paragraph 17 above). At least on one occasion they were stayed on account of the applicant’s application to have an expert examination arranged in Germany (ibid.). The applicant failed to point out any major period of inactivity on the part of the appellate court. As for the several applications lodged by respondent parties for adjournment, they were granted by the appellate court with an explicit consent of the applicant for the purpose of facilitating, inter alia, friendly settlement negotiations (ibid.). In such circumstances, while the protraction at the appeal stage cannot be attributed solely to the applicant’s conduct, it can also not be held against the Government (compare Johanna Fröhlich v. Germany, no. 16741/16, § 41, 24 January 2019). In any event, the applicant failed to provide the Court with further information regarding the number of hearings held by the appellate court or the overall conduct of the domestic authorities (ibid.). In view of the above-mentioned facts, the Court considers that the applicant failed to sufficiently justify his allegation concerning the respondent State’s unjustified contribution to the length of the appeal proceedings. 50. As to the first level of jurisdiction, the Court notes that the applicant and his representatives did not cause the delay to the proceedings. While in their observations both parties failed to clarify the circumstances of the failure of the NFB to conduct the requested expert examination and the exact impact it had had on the delay in the proceedings (see, in this connection, paragraphs 13-15 above), it is obvious that the stay of the proceedings at this stage for almost two years, whatever the role of the NFB, was attributable to the Government. The Court reiterates in this connection that even where civil proceedings are governed by the principle of the free disposition of the parties, which implies the parties’ responsibility for the proceedings, it is incumbent on the State to organise its judicial system in such a way that the requirement of a trial within a reasonable time is complied with (see Erfar‐Avef v. Greece, no. 31150/09, § 58, 27 March 2014, with further references therein; see also Gisela Müller v. Germany, no. 69584/01, § 86, 6 October 2005). In cases in which the cooperation and/or engagement of experts proves necessary, it is the responsibility of the domestic courts to ensure that the proceedings are not excessively prolonged (see Johanna Fröhlich, cited above, § 42 with further references therein; see also Stojanov v. the former Yugoslav Republic of Macedonia, no. 34215/02, § 60, 31 May 2007, and Ziaja v. Poland (dec.) [Committee], no. 45751/10, § 44, 16 May 2019)). 51. In the case at hand the first-instance court’s conduct after the request for an expert examination had been sent to the NFB cannot be viewed as diligent. In the absence of an explanation from the Government it is not clear whether and if so when the first-instance court received the letter from the NFB informing the former that they were not in a position to conduct the examination requested. In any event, either the two-year failure to follow up on the inactivity of the NFB or the two-year failure to order the required expert examination elsewhere led to total stay of the proceedings for two years. 52. The Court notes that in the relevant period the applicant’s case was transferred from the Tbilisi Regional Court to newly created Tbilisi City Court. It cannot in this connection overlook the major structural reform of the judiciary which was under way in Georgia at the material time (see in this regard paragraph 12 above, and Kvantaliani, cited above, § 29; compare O’Leary v. Ireland (dec.) [Committee], no. 45580/16, § 41, 14 February 2019). However, this could hardly serve as a valid excuse for a total inactivity for two years, since the general principle under Article 6 § 1 of the Convention is that it always remains the responsibility of the Contracting States to organise their courts in such a way as to guarantee everyone’s right to the determination of their civil rights and obligations “within a reasonable time” (see Kharitonashvili v. Georgia, no. 41957/04, § 44, 10 February 2009, and G.H. v. Austria, no. 31266/96, § 20, 3 October 2000). Against this background the period of inactivity leading to the total length of two and a half years before the first instance court cannot be considered as justified. 53. In their observations the Government referred to the Court’s inadmissibility decisions in the two previous cases lodged by the applicant (see Schrade v. Georgia, no. 9289/08, 2 February 2016, and Schrade v. Georgia, no. 52240/07, 26 April 2016). In those cases, however, the proceedings lasted relatively short (less than four years in the first case, and four years and four months – in the second case, respectively) with several rounds of re-examination and the applicant having contributed to their overall length (see, in particular, ibid. §§ 29, and 34-36 respectively). Moreover, as far as the second case is concerned, it differed also in terms of what was at the stake for the applicant (while it concerned the unlawful reproduction of one photograph, in the current case what was at stake was the 152 instances of reproduction in respect of fifty-seven photographs). In view of the above, the Court considers that the current case is substantially different. 54. To conclude, having regard to the criteria set out in paragraph 46 above, the Court considers that the length of the proceedings in the current case was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention. 55. 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.”
56. The applicant claimed various sums in respect of non-pecuniary damage, including EUR 15,000 in view of the length, outcome and manner his civil case against Global Access of Georgia had unfolded, and EUR 33,000 on account of the length of the proceedings in the case against Artanuji. He also claimed EUR 555.78 on account of the pecuniary damage allegedly sustained as a result of the unauthorised use by Global Access of Georgia of his photographs, and EUR 15,200 in respect of Artanuji on the same basis. In this connection, he also claimed, without specifying the amounts or providing any relevant financial or other documents, the reimbursement of personal expenses incurred in connection with the initiation of the civil proceedings in Georgia, such as costs related to his travel and stay in Georgia. 57. The Government submitted that part of the claims, such as those related to the criminal complaint and pecuniary damage on account of the unauthorised use of his photographs, were unrelated to the subject matter of the application, which was connected to the length of the civil proceedings and the related issue of the availability of a domestic remedy. They further alleged that the remaining claims were either unsubstantiated, including those related to the travel and stay costs of the applicant in Georgia, or highly exorbitant. 58. The Court notes that it has found violations in the current case only as far as the civil proceedings against Artanuji are concerned. Further, it does not discern any causal link between the essentially procedural violations of Articles 6 § 1 and 13 which it has found and the pecuniary damage alleged by the applicant; it therefore rejects this claim. On the other hand, it awards the applicant EUR 600 in respect of the non‐pecuniary damage sustained by him by reason of the violations found. 59. The applicant claimed EUR 2,000 for the legal costs incurred before the domestic courts and EUR 3,500 for the costs related to his legal representation before the Court as far as the proceedings against Global Access of Georgia were concerned. In connection with the case against Artanuji, he in addition claimed EUR 12,300 for the legal costs incurred before the domestic courts and EUR 5,400 for his legal representation before the Court. The applicant also requested the reimbursement of some expert-work-related costs. 60. The Government contested these claims. They stressed that the applicant had failed to submit the required documentary evidence, such as invoices or other financial documents proving that these costs had actually been incurred. As for the legal-service contract submitted in relation to the case of Global Access of Georgia, it neither set out the hourly rates of the applicant’s representatives, nor itemised the work they had performed. In addition, according to the Government, the applicant had failed to show the necessity of his having been represented by several lawyers in the proceedings before the national courts and the Court. As for the Artanuji proceedings, the Government noted that while the applicant had failed to submit a copy of a contract with the respective representative, the hourly rates and the amount of hours allegedly spent on the case were highly excessive and unreasonable. 61. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria and the absence of relevant documents, the Court decides that no award shall be made under this head. 62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 600 (six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 11 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller Mārtiņš MitsDeputy Registrar President