FOURTH SECTION
DECISION
Application no. 8075/05
AKADEMIKOSI-7
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 26 January 2016 as a Committee composed of:
Krzysztof Wojtyczek, President,
Nona Tsotsoria,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 3 December 2004,
Having deliberated, decides as follows:
THE FACTS
1. The applicant organisation was registered as a cooperative under the name of Akademikosi-7 on 25 February 1963. It was represented before the Court by Mr M. Jmukhadze, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr D. Tomadze, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant organisation is a State-supported housing construction cooperative established in 1963 with the aim of constructing a block of apartments for its individual members – the staff of the Academy of Sciences of Georgia.
5. In December 1964 the construction of the block of flats, situated at 57, Vazha-Pshavela Avenue in Tbilisi, was terminated. The cost of the construction works were covered by contributions of the cooperatives individual members (40% of the costs) and a low interest loan emitted by the State (60% of the costs).
6. Whilst the apartments themselves, that is the living space of the constructed block, unquestionably became property of the individual members of the construction cooperative, a row erupted between those members and the State over who was the rightful owner of the uninhabitable part, some 217 square meters, situated on the ground floor of the constructed building.
7. Between 1964 and July 1996, those uninhabitable premises were occupied by two State-owned entities – a large State-run grocery shop and a branch of the Soviet savings bank.
8. By privatisation and sales agreements concluded in July 1996, the respondent State, acting through its Department of State Property Management, ceded the whole of the uninhabitable surface, which had been registered as State property at that time, situated on the ground floor of the above-mentioned block, of flats to third parties, two private entities.
9. By 24 March 1997, the applicant organisation fully repaid the loan, with the funds drawn from its individual members’ contributions, to the State (see paragraph 5 above).
10. On 24 August 1998, the applicant organisation brought a court action against the State, requesting that the sales and privatisation agreements of July 1997 concluded between the State and the third parties over the disputed property (see paragraph 7 above) – the uninhabitable surface of 217 square meters – be declared null and void.
11. After a long series of remittal of the case between various instances of jurisdiction, the Tbilisi Regional Court dismissed, by its judgment of 23 October 2003, the applicant’s action against the State as manifestly ill‑founded. Thus, the appellate instance, after having examined various documents, concluded that the applicant organisation had failed to prove that it had ever contributed to the construction of the uninhabitable part of the block of apartments; the contributions paid by its individual members were exclusively meant to cover only the costs of the construction of the living space, the apartments. Citing a number of relevant resolutions issued by the Soviet Government in the 1960s and -70s on the issue of the State‑sponsored housing cooperatives, the appellate court stated that its understanding of the facts of the case at hand was consistent with the general practice prevailing at the material time with respect to the majority of other housing construction cooperatives all over the country.
12. On 27 July 2004 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law and upheld the judgment of 23 October 2003. The Supreme Court confirmed, by reference to a number of legal provisions, that at the material time of the events it was a well-established practice that whenever individual members of a housing construction cooperative had constructed a block of flats in cooperation with the State, they could expect to receive in ownership only the living space, that is the apartments, whilst all the remaining uninhabitable parts of the building were normally retained the State.
COMPLAINTS
13. The applicant organisation complained that, by alienating in July 1996 the uninhabitable surface of the building situated at 57 Vazha Pshavela Avenue in Tbilisi, the State breached its property rights under Article 1 of Protocol No. 1.
THE LAW
A. The parties’ arguments
14. The Government submitted that the application was either manifestly ill‑founded or incompatible ratione materiae with Article 1 of Protocol No. 1 given that the disputed real estate – the uninhabitable premises of the building situated at 57 Vazha Pshavela Avenue in Tbilisi – had never represented the applicant organisation’s property nor could the latter claim “legitimate expectation” to receive those premises in ownership. In this regard, the Government referred to a number of legal provisions, applicable at the material time, which regulated the distribution of property rights between the State and individual members of State-supported housing cooperatives over mutually constructed block of flats. Thus, the Government, akin to the domestic courts, argued that whilst the living space of a constructed block, the apartments, were attributed to individual members of State-supported cooperatives, the uninhabitable parts were normally retained by the State as its property.
15. The Government also called into question the locus standi of the applicant organisation to claim property rights on behalf of its individual members. The argument was that it would have been more appropriate for individual members to apply directly to the Court if they considered to have been infringed in their property titles. Lastly, noting that the fact of the irrevocable deprivation of the applicant’s alleged property interests had occurred in July 1996, which was well before the entry into force of Protocol No. 1 with respect to Georgia on 7 June 2002, the Government objected that the application was inadmissible for its incompatibility ratione temporis with the relevant provisions of the Convention.
16. In its reply to the Government’s observations, the applicant organisation did not comment on any of the objections as regards the admissibility of the application. It limited its submissions to claiming that since it had fully repaid the special loan for housing construction to the State by 24 March 1997 (see paragraph 9 above), it was entitled to claim property rights over the whole of the block of flats, including its uninhabitable parts.
B. The Court’s assessment
17. Without prejudging on the Government’s objections of whether the impugned estate – the uninhabitable premises of the bloc of apartments – could be said to constitute, at least on arguable grounds, legitimate property of the applicant organisation, the Court considers it appropriate, first, to determine the limits of its jurisdiction ratione temporis.
18. In this respect, the Court reiterates that, in accordance with the generally recognised rules of international law, the provisions of the Convention and its Protocols do not bind a Contracting Party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the relevant international treaty with respect to that Party. According to the general rule, the Court’s temporal jurisdiction is to be determined, with due regard to the particular circumstances of the given case, in relation to the scope of the Convention right at stake and the nature of the facts constitutive of the alleged interference (see Blečić v. Croatia [GC], no. 59532/00, §§ 70 and 77, ECHR 2006 III; Šilih v. Slovenia [GC], no. 71463/01, §§ 145 and 146, 9 April 2009).
19. As to the scope of the right in question, the Court reiterates that domestic remedies under Article 1 of Protocol No. 1 are not normally detachable from the act of alleged interference. Thus, where a breach of property rights and a refusal to redress it occurred, respectively, before and after the entry into force of Protocol No. 1 with respect to the State in question, the date of the latter act is immaterial for the determination of the Court’s temporal jurisdiction (see, amongst many other authorities, Blečić, cited above, §§ 77-93; Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; and also, as the most relevant national precedent, Nikolaishvili v. Georgia (dec.), no. 30272/04, 7 June 2009).
20. Returning to the circumstances of the present case, the Court observes that the alleged misappropriation of the applicant organisation’s property interests occurred in July 1996, when the State, acting through its Department of State Property Management, ceded the disputed real estate premises to third parties on the basis of the relevant privatisation and sales agreements (see paragraph 8 above). That definite alienation of the disputed estate was clearly an instantaneous act which did not produce any continuing situation under Article 1 of Protocol No. 1 (compare with, among many others, Nikolaishvili, the decision cited above, Blečić, cited above, § 86; Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000‑I; Fatullayev v. Azerbaijan (dec.), no. 33875/02, 28 September 2006; and also Sholos v. Ukraine (dec.), no. 11780/05, 24 March 2009).
21. Consequently, given that Article 1 of Protocol No. 1 entered into force with respect to Georgia only on 7 June 2002, the Court considers that, in the particular circumstances of the present case, it lacks the temporal jurisdiction to look into the alleged misappropriation of the disputed property by the purportedly unlawful sales and privatisation agreements of July 1996; the subsequent judicial proceedings are, according to the Court’s case-law, immaterial in this regard.
22. It follows that the applicant organisation’s complaint under Article 1 of Protocol No. 1 is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 February 2016.
Fatoş AracıKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy