Communicated on 27 January 2017
FOURTH SECTION
Application no. 65070/10
Tengiz GORGOSHADZE
against Georgia
lodged on 21 October 2010
STATEMENT OF FACTS
The applicant, Mr Tengiz Gorgoshadze, is a Georgian national who was born in 1955 and lives in Batumi.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2007 a major reform process was begun concerning land privatisation in Georgia. On 11 July 2007 the Parliament of Georgia adopted the Act on Recognition of Property Rights to Plots of Land possessed (used) by physical and legal persons (“the Recognition Act”). The purpose of the Recognition Act was to establish a procedure for formal recognition of ownership rights in respect of land. It envisaged three possibilities for legalising ownership rights over land: lawful land ownership, lawful land use, and arbitrary occupation of land. Practical implementation of this Act was facilitated by Presidential Order No. 525 “On the Rule of Recognition of Property Rights to Land possessed (used) by physical and legal persons and Approval of the Certificate of Ownership” issued on 15 September 2007. In accordance with the presidential order, property recognition commissions were established within local government bodies and were tasked with the examination of ownership recognition applications from physical and legal persons.
The applicant had been occupying an agricultural plot of land measuring 3200 square metres in the village of Mejinistskali (Khelvachauri District) since 1990. On 20 February 2008 the applicant applied to the Khelvachauri Property Recognition Commission (“the Commission”) with a request to register the plot of land as his property. On 18 March 2008 the applicant received a confirmation from the Commission that his application satisfied the requirements of the Recognition Act and he was asked to pay the relevant registration fee. On 31 March 2008 the Property Recognition Commission issued a property certificate confirming the applicant’s right of ownership over the plot of land, on the basis of which the public registry registered the land in the applicant’s name on 16 April 2008.
On 23 January 2009 the Khelvachauri Property Recognition Commission revoked the applicant’s title to the property. It stated that the decision recognising the applicant’s property right in respect of the plot of land concerned was null and void, having been taken in violation of the requirements of the Recognition Act.
On 15 September 2009 the Khelvachauri District Court confirmed the revocation decision, agreeing with the Commission’s conclusion that the granting of the property title had not complied with the requirements of the Recognition Act.
On 27 November 2009 the Kutaisi Court of Appeal upheld the lower court’s decision. It agreed that the Commission’s granting of the applicant’s property right in respect of the plot of land concerned had constituted a violation of the Recognition Act, which constituted grounds for the nullity of that decision.
An appeal on points of law lodged by the applicant was dismissed as inadmissible by the Supreme Court on 21 April 2010.
B. Relevant domestic law and practice
1. The Constitution of Georgia
Article 21 of the Constitution of Georgia recognises the inviolability of the right to own and inherit property. Paragraph 2 of the Article states that a property right may be restricted for pressing social needs in cases determined by and in accordance with the procedure prescribed by law. Paragraph 3 further provides that:
“Deprivation of property for pressing social needs shall be permissible in circumstances expressly determined by law, on the basis of a court decision or in urgent cases provided for by an organic law, provided that prior, full and fair compensation is made. The compensation shall be exempt from all taxes and fees.”
2. The Act on Recognition of Property Rights to Plots of Land possessed (used) by physical and legal persons (Recognition Act of 2007)
According to Section 1 of the Recognition Act, the purpose of the Act is to recognise property rights to State-owned plots of land lawfully possessed (used) or arbitrarily occupied by physical or legal persons. The most relevant provisions of the Recognition Act, as in force at the material time, read as follows:
Section 2 (Definition of terms)
“The terms used in this Act shall have the following meaning:
a) lawfully possessed land - a State-owned agricultural or non-agricultural plot of land with or without buildings (built, under construction, or destroyed) in relation to which a physical person has acquired the right of lawful possession before the entry into force of this Act;
b) used land – a State-owned non-agricultural plot of land with or without buildings (built, under construction, or destroyed), with respect to which a physical or legal person, or any other organisational structure provided for by law has acquired the right of use before 12 November 1998 ...
c) arbitrarily occupied land – a State-owned agricultural or non-agricultural plot of land with or without buildings (built, under construction or destroyed), which was arbitrarily occupied by a physical or legal person ... before the entry into force of this Act, and which at the time of a request for the recognition of ownership rights in respect thereof has not been disposed of by the State ...”
Section 3 § 2 (Scope of the Act)
“No property rights shall be recognised with respect to the following State-owned agricultural or non-agricultural plots of land:
a) cattle/animal transportation routes ...
c) protected territory
d) recreation parks, forest-parks, public squares ...
e) historical, cultural, natural or religious monuments
f) land designated for public use (squares, streets, passages, roads, pavements, embankments) and recreational places (parks, woodland parks, public gardens, promenades, protected territory) ...”
Section 4 (The body competent to recognise property rights)
“1. The authority to recognise property rights with respect to lawfully possessed or used as well as arbitrarily occupied plots of land falls within the competence of the relevant representative local government body; the competence is exercised via a commission. The commission exercises its functions in line with the formal administrative procedure provided for in Chapter VII of the General Administrative Code and in accordance with the current Act ...”
Section 5 (The rule on recognition of ownership rights with respect to lawfully possessed or used as well as arbitrarily occupied land)
“1. A written application must be submitted to the commission by an interested party to provide a basis for examining a request for the recognition of property rights with respect to lawfully possessed or used as well as arbitrarily occupied land.
2. While examining a request for the recognition of property rights with respect to the arbitrarily occupied land, its conformity with the conditions of local territorial planning and the strategic plan for land distribution shall be assessed.
3. The interested party shall submit the following in support of his or her request for recognition of property rights with respect to lawfully possessed or used as well as arbitrarily occupied plot of land:
a) a document proving the lawful possession, usage or arbitrary occupation of the land or a witness statement thereto;
b) a cadastral plan of the plot of land;
c) information relevant to the establishment of the cost of the recognising the property rights;
e) copies of the interested party’s identification documents ...
5. If a request by an interested party for the recognition of property rights with respect to lawfully possessed land meets in its entirety or partially the conditions of the present Act, the commission ... will take a decision on the recognition of property rights in respect of the lawfully possessed land in full or in part, and will issue a property rights certificate and a certified cadastral plan ...
6. If a request by an interested party for the recognition of property rights to a plot of lawfully used or arbitrarily occupied land meets in full or in part the conditions of the present Act, the commission shall send to the interested party written notification concerning the cost of the recognition ... If the interested party pays the cost of the recognition of property rights ... the commission will take a decision recognising the property right in full or in part and will issue a property rights certificate and a certified cadastral plan ...
7. If a request by an interested party for recognition of a property right does not meet the conditions provided for by this Act, or if the documents supporting the application fail to prove the fact of lawful possession, use or arbitrary occupation ... the commission will issue a written decision rejecting the recognition of property rights.”
3. Presidential Order No. 525 “On the Rule of Recognition of Property Rights to Land possessed (used) by physical and legal persons and Approval of the Certificate of Ownership”.
The Presidential Order which was adopted on 15 September 2007 details the procedure and conditions for the recognition of ownership rights in respect of State-owned agricultural and non-agricultural land. It lays down the composition and scope of authority of property recognition commissions, lists the documents which should be submitted in support of recognition requests, provides for the relevant deadlines, and so on.
4. Annual Report by the Public Defender of Georgia
The relevant parts of the 2011 Annual Report by the Public Defender of Georgia state the following:
“Recognition of Property Rights
... Throughout the 2011 reporting period, the Public Defender of Georgia has observed a number of cases where bodies authorised to recognise property rights overturned decisions taken in respect of the recognition of the right of ownership of a State-owned, arbitrarily occupied plot of land, neglecting the requirements established by law, and unjustifiably refusing to recognise the right to such property ...
The unlawful revocation of decisions regarding the recognition of property rights
During the 2011 reporting period the Public Defender of Georgia has established cases of violation of the property rights of 271 citizens by the Commission for the Recognition of Property Rights within the Khelvachauri Municipal Assembly (Sakrebulo).”
COMPLAINT
The applicant complains that the revocation of his property right amounted to a breach of Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? In particular, was the applicant deprived of his plots of land in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
2. Was the deprivation necessary in a democratic society? In particular, given that the applicant received no compensation for the land at issue, did the deprivation impose on him an excessive individual burden (see, inter alia, Rysovskyy v. Ukraine, no. 29979/04, §§ 69-71, 20 October 2011)?
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