CASE OF KHUNDADZEEBI v. GEORGIA

FIFTH SECTION

CASE OF KHUNDADZEEBI v. GEORGIA

(Application no. 12549/11)

JUDGMENT
 

STRASBOURG

14 December 2023

This judgment is final but it may be subject to editorial revision.

In the case of Khundadzeebi v. Georgia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 12549/11) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 14 February 2011 by two Georgian nationals, Mr Gocha Khundadze (“the first applicant”) and Mr Jumber Khundadze (“the second applicant”), who were born in 1975 and 1977 respectively and live in the village of Kapreshumi, and who were represented by Mr V. Loria, a lawyer practising in Batumi;

the decision to give notice of the complaint under Article 1 of Protocol No. 1 to the Georgian Government (“the Government”), represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 23 November 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns a complaint under Article 1 of Protocol No. 1 about the allegedly unlawful revocation of the applicants’ property rights over agricultural plots of land.

2.  In 2007 reforms were introduced concerning privatisation of land in Georgia. On 11 July of that same year, Parliament passed the Law on the recognition of property rights to plots of land possessed (used) by natural and legal persons (“the Recognition Act”). The Recognition Act envisaged three possibilities for legalising ownership rights over land, namely lawful land ownership, lawful land use and land held in adverse possession. The implementation of the Recognition Act was facilitated by Order no. 525 of the President on the rule of recognition of property rights over land in possession (use) by natural and legal persons and approval of the certification of ownership rights, issued on 15 September 2007. Under the Presidential Order, a number of property recognition commissions (hereinafter referred to as “property commissions”) were established within local self-government bodies, tasked with the examination of applications from natural and legal persons for recognition of ownership over land.THE REVOCATION PROCEEDINGS CONCERNING THE FIRST APPLICANT

3.  The first applicant had been occupying a State-owned plot of land measuring 2,868 sq. m in the village of Gantiadi (Khelvachauri District) under a lease agreement since 2001. Following the termination of the lease agreement in 2004 he continued to possess and cultivate the plot and paid all the related taxes. It appears from the case file that he also built a house on the plot, in which he lived with his family.

4.  On 2 April 2008 the property commission, acting at the request of the first applicant, recognised his ownership rights to the plot concerned. On 8 April 2008 the applicant was provided with an ownership certificate and, on the basis of that certificate, he registered the plot in his name with the Public Registry.

5.  On 12 December 2008 the property commission began a review, on its own initiative, of the lawfulness of its previous decision concerning the recognition of the property rights of the first applicant. The latter was not informed of the initiation of the relevant administrative proceedings. On 15 May 2009 the property commission overturned its previous decision, revoking the applicant’s title. According to the minutes of that meeting, having conducted an on-site inspection and after re-examining the first applicant’s file, it established that the plot allocated to him was not an agricultural plot per se and that the first applicant had not been using it for agricultural purposes.

6.  The revocation decision was confirmed by the Khelvachauri District Court on 26 October 2009. The court concluded that the property commission’s initial examination of the first applicant’s request had been superficial, and that the applicant had failed to show that he had indeed been in possession of the plot in question or had occupied it, even unlawfully. Thus, the recognition of the applicant’s ownership had been erroneous from the outset. In reaching its conclusion the first-instance court referred to Article 60(1) § 1 of the General Administrative Code, by which a piece of delegated legislation was to be considered null and void if it contradicted a law or if other requirements for its drafting and issuing had been substantially violated.

7.  The first applicant appealed. He claimed that on the basis of the 2 April 2008 decision he had been registered as the owner of the plot by the Public Registry, and accordingly the property commission was not entitled to revoke his recognised title to the property. He also maintained that if he had failed to submit all the required documents in support of his request, the commission should have refused his request in the first place. On 30 March 2010 the Kutaisi Court of Appeal dismissed the applicant’s appeal. It noted that the applicant had failed to identify the ground on which he was requesting the recognition of the title to the property. It concluded that the applicant had failed to show that he had been occupying, albeit unlawfully, the plot concerned before the enactment of the Recognition Act. By a decision of 13 September 2010, the Supreme Court of Georgia dismissed an appeal on points of law by the first applicant as inadmissible.THE REVOCATioN PROCEEDINGS CONCERNING THE SECOND APPLICANT

8.  The second applicant had been occupying and cultivating 2,712,6 sq. m of State-owned agricultural land in the village of Gantiadi (Khelvachauri District) since 2001. On 2 April 2008 the property commission recognised his ownership rights and provided him with the relevant property certificate. On 12 December 2008 the property commission overturned its previous decision revoking his title to the property. It concluded that 1,267 sq. m of the plot that had been allocated to the applicant overlapped with another plot of land owned by a third party. As such, his property certificate had to be revoked.

9.  The second applicant appealed. On 8 September 2009 the Khelvachauri District Court upheld the revocation decision. It observed that at the time of making the recognition request the applicant had failed to submit a cadastral plan and had thus violated the relevant provisions of the Recognition Act. The court further noted that in view of the ownership of a part of the plot by a third party, the applicant could not have physically occupied it. As such, the initial decision to recognise his title had been erroneous.

10.  That decision was upheld on appeal by the Kutaisi Court of Appeal on 27 January 2010. In connection with the second part of the plot, which did not overlap with another property, the court simply concluded that no separate request had been lodged for the recognition of property rights with respect to that part of the plot; hence no separate decision had been made by the property commission. On 22 September 2010 the Supreme Court of Georgia dismissed an appeal on points of law by the second applicant as inadmissible.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

11.  The relevant legal framework and practice are summarised in Eka Mikeladze and Others v. Georgia ([Committee], nos. 29385/11, 19372/12, 29533/13, and 73699/13, §§ 30-34, 25 November 2021).

THE COURT’S ASSESSMENT

12.  The Government submitted that, having been unsuccessful in the administrative proceedings, the applicants should have initiated compensation proceedings with a view to claiming compensation for damage inflicted by the administrative authorities. In their letter of 26 October 2021, they added that the applicants had at their disposal another effective remedy in the form of administrative proceedings, which they had not availed themselves of. The applicants argued that they had exhausted all remedies available to them and that the initiation of compensation proceedings would have been futile and unlikely to succeed in view of the domestic courts’ conclusion that the recognition of their property deeds had been unlawful from the outset.

13.  The Court has examined and dismissed similar objections lodged by the Government in previous cases (see Eka Mikeladze and Others, cited above, §§ 39-44). Finding no reason to depart from that approach in the present case, the Court dismisses the Government’s plea of non-exhaustion. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

14.  It is common ground between the parties that there has been an interference with the applicants’ possessions within the meaning of Article 1 of Protocol No. 1 on account of the property commission’s decisions revoking their property rights. The applicable general principles have been summarised in Vistiņš and Perepjolkins v. Latvia ([GC], no. 71243/01, §§ 93, 95-99 and 108-14, 25 October 2012); Hutten-Czapska v. Poland ([GC], no. 35014/97, §§ 163-68, ECHR 2006-VIII); Rysovskyy v. Ukraine, (no. 29979/04, §§ 70‑71, 20 October 2011, with further references); and Beyeler v. Italy ([GC], no. 33202/96, § 120, ECHR 2000-I).

15.  It is not in dispute that the decisions revoking the applicants’ property rights were based on Article 60(1) §§ 1 and 3 of the General Administrative Code, which permitted a proprio motu review of a final decision in administrative proceedings. The Court accepts that the proceedings in the applicants’ cases were reopened as a consequence of the alleged discovery of mistakes made by the property commission in its original assessment of the applicants’ eligibility for recognition of property rights. It further accepts that the deprivation of the applicants’ property rights was “in the public interest” and served the legitimate aim of correcting a mistake by local administrative authorities.

16.  The applicants argued that the interference had not been proportionate to the public interest pursued and that the manner in which their property rights had been revoked had put an excessive individual burden on them.

17.  The Court notes that the manner in which the public authorities treated the applicants’ cases was inconsistent and incoherent. In particular, while the property commission revoked the first applicant’s property rights on the basis that the plot concerned was not agricultural per se and that he could not have used it for agricultural purposes, the domestic courts, when approving the revocation decision, simply concluded, without determining the nature of the plot in question, that the first applicant had failed to substantiate his initial request for the recognition of his property rights. The revocation of the decision to grant the ownership rights to the first applicant was not based upon any new evidence but upon a reassessment of the same evidence which was the basis for the initial decision recognising his rights. As far as the second applicant is concerned, while the property commission revoked his title because one part of the plot concerned overlapped with a plot of land owned by a third party, the domestic courts primarily based their decisions on the contention that the second applicant had submitted a flawed cadastral plan. Moreover, his title over the other part of the plot, which was not disputed by a third party, was also revoked for no good reason and the domestic courts did not examine the second applicant’s submission to that effect on the merits. The Court finds that the reasoning of the domestic courts was clearly at variance with the relevant conclusions of the property commission and also with the position of the public authorities in the course of the court proceedings. In view of these rather conflicting approaches, it is not entirely clear whether, in addition to the defects attributable to the relevant authorities, the applicants had themselves failed to act with sufficient diligence in their initial requests for the recognition of their property rights.

18.  The Court further notes that the applicants’ ownership rights were recognised by the property commission created within the local self‑government body specifically for the purpose of examining applications for recognition of ownership over land. The applicants’ ownership rights were further registered at the Public Registry. Thus, the procedures for recognition of the applicants’ ownership rights were conducted by official bodies exercising State authority and the applicants had very limited opportunity, if any, to influence the terms of the recognition, as this was within the State’s exclusive competence. In this connection, the Court notes that the Government did not argue that the applicants had acted in bad faith in their initial requests for the recognition of their property rights. According to the Government, the relevant public authorities simply made a mistake when recognising and registering the applicants’ ownership rights. However, mistakes or errors of the State authorities should serve to the benefit of the persons affected, and the risk of any mistake made by the State authorities must be borne by the State (see the cases cited at paragraph 14 above; see also Gashi v. Croatia, no. 32457/05, § 40, 13 December 2007;  Tomina and Others v. Russia, nos. 20578/08 and 19 others, § 39, 1 December 2016; and Arzamazova v. the Republic of Moldova, no. 38639/14, § 51, 4 August 2020).

19.  In this connection, the Court refers to Article 60(1) § 4 of the General Administrative Code, which explicitly provided that “rights-granting” delegated legislation could not be declared null and void if an interested party had legitimate trust in such legislation, unless it substantially violated the legal rights or interests of a State, the public or others. The domestic courts did not enter into the merits of the above-mentioned provision and declared “rights-granting” pieces of legislation null and void, without examining the issue of “legitimate trust”. This leads the Court to its last observation.

20.  The applicants in the present case were deprived of their title to property without compensation or any alternative form of reparation. The relevant procedure, however, enabling the State authorities to revoke property rights allegedly granted by mistake, explicitly envisaged the possibility of granting compensation or other types of reparation for any damage suffered. In neither of the cases did the domestic courts engage in an assessment of the damage allegedly suffered by the applicants as a result of the revocation of their property rights and the need to provide reparation on that account. They did not consider any other possible solutions, such as identifying alternative plots of land or remeasuring and correcting plot boundaries. The Court notes that the plots of land in issue were initially granted to the applicants for no monetary consideration, a fact which in itself made their cases weaker. However, the absence of any reference to the issue of damage in the reasoning of the domestic courts in the two cases can scarcely stand the test of procedural fairness which is inherent in Article 1 of Protocol No. 1. The Court has previously held that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and that a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see Paplauskienė v. Lithuania, no. 31102/06, § 49, 14 October 2014; see also Rysovskyy, cited above, § 71, and Belova v. Russia, no. 33955/08, § 37, 15 September 2020).

21.  The foregoing considerations are sufficient to enable the Court to conclude that there were serious shortcomings in the conduct of the domestic authorities and the courts, with the result that the revocation of the applicants’ ownership rights, while pursuing a legitimate aim in the general interest, imposed an excessive individual burden on the applicants. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

22.  The applicants claimed a lump sum of 7,000 euros (EUR) each in respect of pecuniary and non-pecuniary damage and 9,684 Georgian laris (about EUR 3,500) in respect of costs and expenses.

23.  The Government contested those claims.

24.  As to pecuniary damage, the Court considers that, having regard to the grounds on which it found a violation of Article 1 of Protocol No. 1, particularly on account of the shortcomings identified in the relevant administrative and court proceedings, it is unable to assess the applicants’ claim under this head. In this connection, it refers to the possibility available to the applicants to request the reopening of the proceedings in accordance with Article 423 § 1 (g) of the Code of Civil Procedure (see Khizanishvili and Kandelaki v. Georgia, no. 25601/12, § 63, 17 December 2019). The Court therefore considers that the reopening of the administrative proceedings and a review of the matter in the light of the principles identified in this judgment would be the most appropriate means of affording reparation to the applicants (see Eka Mikeladze and Others, cited above, § 71). Accordingly, the Court rejects the applicants’ claim in respect of pecuniary damage. As to non‑pecuniary damage, it awards each applicant EUR 800, plus any tax that may be chargeable.

25.  As to costs and expenses, having regard to the documents in its possession, the Court awards the applicants EUR 1,000 covering costs under all heads, plus any tax that may be chargeable to them, and dismisses the remainder of the claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 800 (eight hundred euros) to each of the applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros) to the applicants jointly, plus any tax that may be chargeable to them, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 December 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President

Full & Egal Universal Law Academy