FOURTH SECTION
DECISION
Application no. 37302/05
Klara JIKIA
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 11 October 2016 as a Committee composed of:
Krzysztof Wojtyczek, President,
Nona Tsotsoria,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 17 March 2005,
Having regard to the observations submitted by the respondent Government and the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Klara Jikia, is a Georgian national, who was born in 1945 and lives in Tbilisi. The applicant was represented before the Court by Ms M. Japaridze, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 19 June 1988 a fire severely damaged a two-storey house in the central part of Tbilisi accommodating several families, including the applicant and her mother. As a result of the fire, the house became unfit for habitation and it was demolished in 1989. According to the official records available in the file, the applicant possessed 17.5 square metres of space in the demolished house.
5. Immediately after the fire, the municipal authorities started the process of allocating alternative accommodation to the former residents of the demolished house. Considering that at the time the municipal authorities had no available housing options in the central parts of Tbilisi, the residents were offered apartments in newly constructed apartment buildings in Didi Dighomi – one of the peripheries of the city.
6. On 28 December 1988 the applicant, in lieu of her dwelling in the demolished house constituting 17.5 square metres, was offered an apartment of 31.3 square metres in Didi Dighomi. The applicant declined this offer because the apartment was located on the ground floor.
7. On 19 December 1990 the municipal authorities, by Resolution No. 2982, allocated a different apartment to the applicant of 33 square metres on the first floor of an apartment building under construction in Didi Dighomi (“the apartment”). The applicant never challenged this resolution.
8. On 8 May 1997 the municipal authorities of Tbilisi transferred the land where the demolished house used to stand (“the land”), which represented the municipal real property, to a private condominium (“the condominium”) on the basis of privatisation and sales agreements. The condominium had an intention to construct a multi-storey apartment building there.
9. On 29 June 2001 the applicant brought court proceedings against the municipal authorities claiming that the transfer of the land to the condominium had been unlawful. She requested allocation of an apartment in the condominium’s apartment building and claimed pecuniary and non‑pecuniary damages. Later the condominium was joined to the proceedings as a second defendant.
10. On 4 August 2004, after remittal of the case between different court instances, the Tbilisi District Court, at the appellate instance, partly upheld the applicant’s claims. It held that the transfer of the land to the condominium had interfered with the applicant’s peaceful enjoyment of possessions as she had maintained ownership claims over the land in proportion to the size of her dwelling in the demolished house, i.e., 17.5 square metres of land; furthermore, given the impossibility of returning her portion of land to the applicant, the court reasoned that she was entitled to compensation. In accordance with the set baseline price for the given zone of Tbilisi, the appellate court determined that the applicant was payable 200 United States dollars (USD) per square metre of her foregone land (i.e., USD 3,500 (approximately 3,200 euros (EUR)) for 17.5 square metres of land). The court also reasoned that since the municipal authorities of Tbilisi were not liable for the fire in 1988, the applicant could claim no damages from the municipal authorities.
11. On 24 February 2005 the Supreme Court of Georgia, upholding the appellate court’s decision, held that, in the absence of the municipal authorities’ liability, the awarded compensation, together with the apartment which had been allocated to the applicant and was still under construction, constituted sufficient satisfaction in the circumstances.
12. On 17 March 2005 the applicant lodged a first letter with the Court setting out the substance of her complaints. In the first letter the applicant stated, inter alia, that the apartment was still under construction.
13. On 28 September 2005 the construction of the apartment was completed. On 3 November 2005, on the basis of resolution no. 2982 (see paragraph 7 above), a handover document (so-called “order”) was issued to the applicant and the apartment was transferred to her. On 27 February 2006, on the basis of the handover document, the applicant requested privatisation of the apartment as formally it still remained in the State’s ownership.
14. On 17 April 2006 the applicant submitted to the Court the completed application form in which she again claimed that the apartment was still under construction.
15. On 27 April 2006 the apartment was registered in the applicant’s ownership. On 4 May 2006 the applicant sold the apartment to a third party for 10,000 Georgian laris (approximately EUR 3,800).
16. The applicant claimed that she never accepted the awarded compensation because she considered the amount utterly inadequate to the damages that she had sustained.
COMPLAINTS
17. Invoking in substance Article 8 of the Convention and Article 1 of Protocol No. 1, the applicant complained that the municipal authorities did not allow her to reconstruct her home after the demolition of the house and that the subsequent civil proceedings had not resulted in an adequate compensation award.
THE LAW
18. The applicant complained about the inability to reconstruct her home on the land where was located the house destroyed by the fire.
She invoked Article 8 of the Convention and Article 1 of Protocol No. 1, which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
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.”
A. The parties’ arguments
19. Raising a preliminary objection, the Government recalled that the Convention and Protocol No. 1 entered into force with respect to Georgia on 20 May 1999 and 7 June 2002 respectively. The Government further contended that the scope of the Court’s review in the instant case was limited to events that took place after those critical dates, and thus instantaneous acts such as the demolition of the house and the transfer of the land to the condominium were beyond the Court’s temporal jurisdiction. The Government claimed that the applicant had never made a request to reconstruct her home. However, they contended that even if such a request had been made and was rejected in the early 1990s, complaints in this respect would in any event be incompatible ratione temporis.
20. The applicant maintained that after the fire and the demolition of the house, she sought reconstruction of her home in the same place where the house used to stand but to no avail. Subsequent transfer of the land to the condominium irreversibly foreclosed any chance of such a reconstruction, which also constituted an unlawful deprivation of her property. She further claimed that even if the events referred to by the Government were indeed beyond the Court’s temporal jurisdiction, they created a continuous situation extending beyond the critical dates.
B. The Court’s assessment
21. At the outset, the Court observes that the parties are in dispute on the issue of whether or not the applicant had, in actual fact, ever sought reconstruction of her apartment after the destructive fire in 1988. However, there is no need to rule on this as, in any event, the first task in the particular circumstances of the present case is to determine the limits of the Court’s jurisdiction ratione temporis.
22. 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; and Šilih v. Slovenia [GC], no. 71463/01, §§ 145 and 146, 9 April 2009).
23. As to the scope of the rights in question, the Court reiterates that domestic civil remedies are not normally detachable from the acts of alleged interference. Thus, where a breach of rights relating to the enjoyment of home and a refusal of the national authorities to redress it occurred, respectively, before and after the entry into force of the Convention and 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, and Nikolaishvili v. Georgia (dec.), no. 30272/04, 7 June 2009).
24. Returning to the circumstances of the present case, the Court observes that, as was confirmed by the findings of the domestic courts, after the devastating fire in 1988, the house where the applicant used to live became totally unfit for habitation. It was therefore demolished in 1989 on the municipal authority’s order (see paragraph 4 above). Subsequently, on 8 May 1997, the land on which the house had initially been situated was ceded by the municipal authority to a third party on the basis of the relevant privatisation and sales agreements (see paragraph 8 above). It was that irrevocable alienation of the land which made it unavoidable that the applicant, as a former resident of the demolished house, would never become able to have her home reconstructed in the same place again. In other words, the act of the alienation of the land by the municipality is to be considered as the origin of the factual situation allegedly constitutive of the violations of the applicant’s rights under Article 8 of the Convention and Article 1 of Protocol No. 1. Furthermore, that definite alienation of the land on the basis of the sales and privatisation agreements was clearly an instantaneous act which did not produce any continuing situation under the Convention (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; and Fatullayev v. Azerbaijan (dec.), no. 33875/02, 28 September 2006).
25. However, given that both the Convention and Protocol No. 1 entered into force with respect to Georgia only on, respectively, 20 May 1999 and 7 June 2002, the Court considers that, in the particular circumstances of the present case, it clearly lacks the temporal jurisdiction to examine the applicant’s complaints originating from the instantaneous act which had occurred on 8 May 1997. The subsequent judicial proceedings are, according to the Court’s case-law, wholly immaterial in this regard (see Nikolaishvili, decision cited above).
26. It follows that the present application 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 3 November 2016.
Andrea TamiettiKrzysztof Wojtyczek
Deputy RegistrarPresident
Full & Egal Universal Law Academy