Communicated on 11 January 2016
FOURTH SECTION
Application no. 32241/12
Shorena KVIRIKADZE-MAKHARADZE against Georgia
and 6 other applications
(see list appended)
1. The applicants are Georgian nationals (a list of the applicants is set out in the appendix).
A. The circumstances of the cases
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. In 2007 a major reform began concerning land privatisation in Georgia. On 11 July 2007 the Parliament of Georgia adopted a Law on Recognition of Property Rights to Plots of Land Possessed (Used) by Physical and Legal Persons (“the Recognition Act of 2007”). 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 the land. Practical implementation of this Act was facilitated by the Order of the President No. 525 “On the Rule of Recognition of Property Rights over Land in Possession (Use) by physical and legal persons and Approval of the Form of Certificate on Ownership Rights” issued on 15 September 2007. According to the Presidential Order Property Recognition Commissions were established at local self‑government bodies and were tasked with the examination of ownership recognition applications from physical and legal persons.
1. Kvirikadze-Makharadze v. Georgia, application no. 32241/12
4. The applicant, had been lawfully occupying and cultivating a State-owned plot of land measuring 2832 sq. m in the village of Gonio (Khelvachauri District) under a lease agreement since 1999. On 28 December 2007 the Property Recognition Commission, after studying the applicant’s request and supporting documents, recognised her property right over the plot concerned. On 18 March 2008 at the applicant’s request and on the basis of an updated cadastral map, the Commission issued an amended property certificate to the applicant.
5. On 9 November 2010 the Khelvachauri Property Recognition Commission initiated administrative proceedings with a view to reviewing the lawfulness of property recognition decisions it had taken in the past. Relevant information published in a local newspaper stated that a request of the National Agency of Cultural Heritage Preservation served as a basis for the review process.
6. On 3 December 2010 the Khelvachauri Property Recognition Commission revoked the applicant’s property title. In total it took 217 revocation decisions on that day. Its main line of reasoning was that the plots concerned formed a part of the designated archaeological-architectural museum-reserve of Gonio Apsarus.
7. On 3 February 2011 the Khelvachauri District Court confirmed the revocation of the applicant’s property right. The court, while referring to the relevant provisions of the Law of Georgia on Cultural Heritage and the Recognition Act, observed that any disposal of State-owned land in inter alia archaeologically protected zone ought to be in advance agreed with the Ministry of Culture. Hence, allocation of a plot of land to the applicant was in breach of the above provisions. The court also noted that the applicant had failed to prove either the lawful possession or the arbitrary occupation of the land concerned.
8. The applicant appealed. She maintained that her family had been arbitrarily occupying this plot as of 1991. Then, in 1999 a lease contract had been concluded with the State and they became lawful users until 2005, when the lease agreement was terminated but they continued nevertheless to cultivate the land.
9. On 29 April 2011 the Kutaisi Court of Appeal confirmed the first-instance court decision. The court noted several deficiencies in the initial decision recognising the applicant’s property right including the following; the Property Recognition Commission had made the relevant decision in disregard of the area-territorial planning and strategic plan for land distribution in the village of Gonio; and the applicant had failed to submit to the Property Recognition Commission the cadastral map of the plot concerned.
10. By a decision of 3 October 2011 the Supreme Court of Georgia dismissed an appeal by the applicant as inadmissible.
2. Iremadze v. Georgia, application no. 33186/12
11. The applicant was cultivating 1925 sq. m of a State-owned plot of land under a lease contract in the village of Gonio since 1999. On 13 December 2007 the Property Recognition Commission, after examining his request, recognised his property right to the plot concerned.
12. On 3 December 2010 the Property Recognition Commission revoked the applicant’s ownership title. The commission concluded that the applicant’s initial application for the recognition of his ownership right had not been supported by the required documents. Furthermore, the village of Gonio formed part of a resort zone and the plot concerned was in addition part of an archaeologically protected zone. Disposal of it was hence wrongful.
13. On 4 March 2011 the Khelvachauri District Court confirmed the revocation of the applicant’s ownership rights. The court relied on Article 32 § 2 of the Law on Cultural Heritage which states that the possession, use and disposal of state-owned land in inter alia archaeologically protected zone is allowed only with the prior agreement of the Ministry of Culture. The court further concluded that during the initial examination of her application by the Property Recognition Commission the applicant had failed to submit documents proving her lawful possession of the plot concerned. The fact of arbitrarily occupying the land had also not been proved.
14. The decision was upheld on appeal by the Kutaisi Court of Appeal on 23 May 2011. Along the line of reasoning of the first-instance court the appeal court observed that the plot concerned was located in an archaeologically protected zone, it also formed a part of the designated resort zone, and hence its disposal should have been coordinated with the Ministry of Culture.
15. On 3 October 2011 the Supreme Court of Georgia dismissed the appeal of the applicant on points of law as inadmissible.
3. Zakaradze v. Georgia, application no.71880/12
16. By a decision of 21 December 2007 the Khelvachauri Property Recognition Commission recognised the applicant’s ownership right over a plot of land measuring 1450 sq. m in the village of Khelvachauri. On 15 April 2011 the Commission learned that the plot owned by the applicant overlapped with another plot of land which had been allocated to local eparchy for the purpose of building a church. On 13 May 2011 the Khelvachauri Property Recognition Commission revoked the applicant’s property title. The Commission concluded that at the time of recognising the applicant’s property rights, the plot concerned had already been allocated to the eparchy. The applicant hence could not physically have lawfully possessed it. The commission overturned its decision of 21 December 2007.
17. The revocation decision was confirmed by the Batumi City Court on 13 December 2011. The court concluded on the basis of the evidence in the case that at the moment of making a request for recognition, the applicant had been arbitrarily occupying as opposed to lawfully possessing the plot concerned. If further noted that Article 2 § g of the Recognition Act excluded recognition of ownership rights over arbitrarily occupied plots of land which at the time of submitting recognition requests were already disposed of by the State. Hence, the initial decision to recognise the applicant’s ownership rights was erroneous.
18. By a decision of 17 February 2012 the Kutaisi Court of Appeal upheld the first-instance decision. On 7 May 2012 the Supreme Court of Georgia dismissed the applicant of the applicant on points of law as inadmissible.
4. Tavdgiridze v. Georgia, application no.29533/13
19. The applicant had been occupying an agricultural plot of land measuring 1566 sq. m in the village of Chakvi since 1985. On 7 April 2008 the Kobuleti Property Recognition Commission, after examining the applicant’s request with the supporting documents, recognised his ownership right over the plot concerned. On the same date the applicant was registered as the owner of the plot with the Public Registry.
20. On 17 June 2011 the same Kobuleti Property Recognition Commission revoked the applicant’s property title. On 8 December 2011 the Batumi City Court confirmed the revocation decision. The latter concluded that the plot of land allocated to the applicant had in fact been a part of a designated resort area – eucalyptus alley. Hence, the recognition of the applicant’s ownership was ab initio wrongful.
21. The Kutaisi Court of Appeal upheld the first-instance decision on 6 April 2012. The Supreme Court of Georgia rejected the appeal of the applicant on points of law on 14 November 2012.
5. Ananidze v. Georgia, application no.73699/13
22. The applicant had been occupying and cultivating a State-owned plot of land measuring 3792 sq. m in the village of Chakvi under a lease agreement since 1998. In 2005 the lease contract was terminated. The applicant continued to unlawfully occupy and cultivate the land.
23. On 5 May 2008 the Kobuleti Property Recognition Commission recognised the applicant’s property right over the plot concerned. The applicant was provided with a property certificate on the basis of which on 20 May 2008 the Public Registry registered the plot in his name.
24. In 2012 the applicant learnt that his property right had been revoked. In reply to his inquiry, the Property Recognition Commission informed him that on 30 September 2009 it had revoked the applicant’s ownership right. According to the extract of the relevant record of the meeting, the Commission concluded the following:
“In connection with the plot of land concerned, the property right was recognised as with respect to an arbitrarily occupied land. However, when making the decision the requirements envisaged in the legislation either on the rule on preparation or on the issuance of a decision were substantially violated (the fact of arbitrary occupation was not established).”
25. The applicant appealed. He claimed inter alia that he had not been informed about the initiation of the revocation procedure; that he had hence been prevented from participating in the relevant administrative proceedings and from defending his position. On merits, he maintained his position that for the purposes of the Recognition Act he had been arbitrarily occupying the plot concerned. On 25 May 2012 the Batumi City Court dismissed the applicant’s appeal, upholding in full the decision of the Property Recognition Commission. The court rejected the applicant’s allegations concerning procedural flaws in the administrative process conducted by the Commission.
26. By a decision dated 27 September 2012 the Kutaisi Court of Appeal confirmed the first-instance court decision. It held that the fact of arbitrary occupation of land could not have been proved only on the basis of witness statements and that other convincing evidence was required.
27. On 11 February 2013 the Supreme Court of Georgia dismissed the appeal of the applicant on points of law as inadmissible. The decision was served on the applicant on 26 April 2013.
6. Begiashvili v. Georgia, application no. 2661/12
28. On 24 March 2008 the Khelvachauri Property Recognition Commission, acting at the request of the applicant, recognised his property title over a plot of land measuring 1063 sq. m in the village Gonio (Khelvachauri District). The applicant accordingly registered the plot in his name.
29. On 3 December 2010 the same Commission overturned its decision of 24 March 2008, revoking the applicant’s ownership rights over the plot.
30. On 24 February 2011 the Khelvachauri District Court confirmed the Commission’s revocation decision. It concluded that the Commission’s initial examination of the applicant’s request was superficial.
31. The Kutaisi Court of Appeal by its decision of 11 May 2011 upheld the decision of the first-instance court.
32. On 3 October 2011 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible.
7. Surmanidze v. Georgia, application no. 915/12
33. On 26 December 2007 the Khelvachauri Property Recognition Commission recognised an ownership right of the applicant’s husband over a plot of land measuring 2100 sq. m in the village of Makhinjauri (Khelvachauri District). This plot of land was recognised to be in his lawful usage.
34. In 2009 the applicant’s husband died. On 22 March 2010 the applicant was informed that on 17 July and 25 September 2008 the same Commission had overturned its decision of 26 December 2007; hence, the title over the plot owned by the applicant’s husband had been revoked. On both dates the Commission concluded that the applicant’s husband had failed to prove the fact of lawful usage of the plot concerned. Neither the applicant nor her husband was involved in the initiated administrative proceedings.
35. The applicant’s appeal was dismissed by the Khelvachauri District Court on 31 May 2010.
36. By a decision of 31 August 2010 the Kutaisi Court of Appeal granted in part the applicant’s appeal and annulled the 25 September 2008 decision of the Property Recognition Commission. At the same time the court upheld the lawfulness of the 17 July 2008 decision and by that confirmed the revocation of the applicant’s property right. Along the same line of reasoning with the Commission and the first-instance court, the appeal court concluded that when filing a recognition request, the applicant’s husband had failed to submit evidence showing his either lawful or unlawful usage of the plot concerned.
37. On 9 June 2011 the Supreme Court of Georgia while upholding the reasoning of the Kutaisi Court of Appeal rejected the applicant’s appeal on points of law.
B. Relevant domestic law and practice
1. The Constitution of Georgia
38. Article 21 of the Constitution of Georgia recognised the inviolability of the right to own and inherit property. Paragraph 2 of the Article states that the right to property may be restricted for pressing social needs in cases determined 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 exempted from any taxes and fees.”
2. The Law on Recognition of Property Rights to Plots of Land in Possession (Use) by Physical and Legal Persons (Recognition Act of 2007)
39. According to Article 1 of the Recognition Act the purpose of the law is to recognise property rights to State-owned plots of land in lawful possession (use) 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:
Article 2 - Definition of terms
“The terms used in this Law 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) for which a physical person has acquired the right of lawful possession before the entry into force of this Law;
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 Law, and which at the time a request was made for the recognition of ownership rights has not been disposed of by the State ...”
Article 3 – Scope of the Law
“... 2. 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 and other
e) historical, cultural, natural or worship-religious monuments
f) plots of land for public use (square, street, passage, road, pavement, embankment) and recreational places (park, woodland park, public garden, alley, protected territory) ...”
Article 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 body of local self-government; 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 Law ...”
Article 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 as a basis for examination of 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 area-territorial planning and strategic plan for land distribution shall be assessed.
3. The interested party shall submit in support of his or her request for the recognition of property rights with respect to lawfully possessed or used as well as arbitrarily occupied plot of land the following:
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 recognition of property rights; ...
e) copies of the identification documents of the interested party ...
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 law, 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 land in use or arbitrarily occupied meets in full or in part the conditions of the present law, 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 the request of an interested party for the recognition of the right to property does not meet the conditions provided for by this law, or if the documents in support of the application fail to prove the fact of lawful possession, use or arbitrary occupation ... the commission will take a written decision rejecting the recognition of property rights.
3. Order of the President No. 525 “On the Rule of Recognition of Property Rights over Land in Possession (Use) by physical and legal persons and Approval of the Form of Certificate on Ownership Rights”.
40. 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 provides for the composition and authority of property recognition commissions, lists the documents which should be submitted in support of the recognition requests, provides for the relevant deadlines, and so on.
4. Annual Report by the Public Defender of Georgia
41. 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 the 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 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 property rights of 271 citizens by the Commission for the Recognition of Property Rights at the Khelvachauri Municipal Assembly (Sakrebulo).”
COMPLAINTS
42. The applicants claim that the revocation of their property rights was in breach of Article 1 of Protocol No. 1.
COMMON QUESTIONS
1. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? In particular, have the applicants been deprived of their 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 applicants had no compensation for the land at issue, did the deprivation impose on them an excessive individual burden (see, for example, Rysovskyy v. Ukraine, no. 29979/04, §§ 69‑71, 20 October 2011)?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
32241/12
18/05/2012
Shorena KVIRIKADZE-MAKHARADZE
28/03/1972
Batumi
Khatuna BAGRATIONI
33186/12
24/05/2012
Enver IREMADZE
04/02/1960
Batumi
Khatuna BAGRATIONI
71880/12
01/11/2012
Nodari ZAKARADZE
16/08/1953
Batumi
Davit DIDMANIDZE
29533/13
19/04/2013
Tamazi TAVDGIRIDZE
05/01/1970
Kobuleti
Teimuraz KATAMADZE
73699/13
25/09/2013
Shalva ANANIDZE
01/01/1953
Batumi
Said SHANTADZE
2661/12
31/12/2011
Bidzina
BEGIASHVILI
915/12
24/11/2011
Tamila
SURMANIDZE
Giorgi
TSAKADZE
Full & Egal Universal Law Academy