Communicated on 1 October 2015
FOURTH SECTION
Application no. 15556/11
Ekaterine NINIDZE
against Georgia
lodged on 23 February 2011
STATEMENT OF FACTS
The applicant, Ms Ekaterine Ninidze, is a Georgian national, who was born in 1951 and lives in Batumi. She is represented before the Court by Mr I. Shavadze, a lawyer practising in Batumi.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The initiation of expropriation proceedings
1. The applicant was the sole registered owner of a house which measured 212 square meters and was located on a plot of land of some 1,902 square meters in a district of Batumi, the so-called Adlia Settlement; two other additional premises of non-residential nature with the overall area of some 78 square meters were situated on that land; an extensive and well‑kept garden with 356 units of various fruit and decorative trees and bushes formed part of the plot (hereinafter “the Adlia estate”).
2. The applicant lived in that house, which had been the familial residence for her ancestors for more than two centuries, together with her sister, Ms L.K., and a few other family members. The applicant’s sister was, in addition, the registered owner of a plot of some 800 square meters which was immediately adjacent to the land owned by the applicant.
3. By an Order dated 14 December 2009 the President of Georgia authorised the Batumi City Hall to effectuate expropriation of lands owned by private individuals, which area allegedly fell within the ambit of an ongoing municipal project of construction of a new highway in the town. Subsequently, on 2 February 2010 the Batumi City Court examined the Batumi City’s Hall’s request for leave to exercise the power of expropriation with respect to a significant zone of land which was owned by thirty-eight private persons, including the applicant’s estate and her sister’s adjacent land-plot. Having examined the request in the light of the arguments submitted by the municipal authority only, the City Court allowed it in full, authorising the City Hall to start expropriation proceedings with respect to all the plots of land concerned.
4. The decision of 2 February 2010 mentioned, in its operative part, that an affected person could lodge an appeal lay against it within fourteen days following receipt of its copy. However, no copy of that decision was ever served on the applicant.
5. On 4 and 7 February 2010 representatives from the Batumi City Hall approached the applicant twice, offering her an amount of money in exchange for the forfeiture of her property title. She turned down the offer (for more details, see paragraph 11 below).
6. On 9 February 2010 the Batumi Municipality requested the Land Registry to record it as the sole owner of the Adlia estate on the basis of the court decision of 2 February 2010. The Land Registry did so on 15 February 2010. The applicant was not informed of that change in the Land Registry either.
2. First set of court proceedings initiated by the applicant
7. On an unspecified date in July 2010 the applicant learnt for the first of fact that she had lost her property title according to the records in the Land Register.
8. On 16 July 2010 the applicant, informing the Batumi City Court of her intention to sue the Batumi City Hall in relation to the unlawful initiation of the expropriation proceedings, requested an injunction in the form of protecting the Adlia Estate from destruction and provisional ban on any possible attempts of her eviction from the house. The request for injunction was rejected by the City Court on an unspecified date as unsubstantiated.
9. On 21 July 2010 the applicant filed with the Batumi District Court an action to quash the decision of 2 February 2010 as either invalid or in view of newly discovered circumstances for the following arguments. Given that the expropriation proceedings constituted an administrative-legal dispute, she argued that the Batumi District Court had been obliged, by virtue of Article 16 § 2 of the Code of Administrative Procedure, to involve her in the judicial examination of the City Hall’s request for leave to initiate an expropriation procedure. Furthermore, the Act on Expropriation of Property for Essential Public Needs, notably its Section 4, also proclaimed the right of those private owners whose property was targeted by public needs to be kept informed of all the details of the authorities’ project justifying the possible expropriation. Lastly, the applicant argued that had she been involved in the proceedings before the Batumi District Court, she would have shown to the court that the project of construction of the highway did not, in actual fact, concern the Adlia estate at all; thus, according to the plan of the project and the ongoing construction works, the outer edge of the already constructed highway was, in actual fact, more than 30 meters away from her property. The latter arguments were referred to as newly discovered circumstances.
10. By a decision of 23 July 2010 the Batumi District Court rejected the applicant request for the quashing of the decision of 2 February 2010 as inadmissible for a procedural inappropriateness. Notably, whilst the request for quashing could only concern a final and enforceable court decision, the applicant’s own acknowledgment of the fact that the decision of 2 February 2010 had never been served on her means that the disputed court decision was not yet final and enforceable with respect to her and could thus be appealed against in accordance with the instructions contained in the decision’s operative part (see paragraph 4 above). The same reasoning was upheld, on interlocutory appeal, by the Kutaisi Court of Appeal on 23 August 2010.
3. Second set of court proceedings initiated by the applicant
11. In parallel with the above-mentioned proceedings, on 6 August 2010, the applicant filed an action against the Land Registry, requesting the annulment of the record of 15 February 2010 which had attributed the ownership of the Adlia estate to the Batumi City Hall (see paragraph 6 above). She argued that the change of the property title in the records did not have any legal basis since the court decision of 2 February 2010 had not declared the City Hall as the owner of the disputed estate but merely conferred the power of conducting the expropriation proceedings upon the municipal authority.
12. By a judgment of 8 November 2010 the Batumi City Court dismissed the applicant’s action as manifestly ill-founded. The main points of its reasoning were limited to stating that the expropriation of the applicant’s property had been effectuated properly. Notably, whilst the court acknowledged that the decision of 2 February 2010 had merely triggered the initiation of the expropriation procedure, the Batumi City Hall then duly started negotiations with the applicant concerning the amount of the compensation payable in exchange for the deprivation of her property. During those negotiations, which had lasted between 4 and 7 February 2010, the City Hall had proposed the applicant the sum of 246,556 Georgian laris (some 115,000 euros at an exchange rate applicable at the material time), which followed from an assessment of the property effectuated by a private auditor, however the applicant had turned down the offer. Subsequently, the municipal authority made another proposal to the applicant – to accept an apartment in the centre of Batumi which would measure the same square meters as the living space of her current house as well as a land plot which was situated in the outskirts of Batumi, near the airport. The second offer was turned down by the applicant as well. That being so, the Municipality had not been obliged, according to the City Court, to wait endlessly for the applicant’s goodwill to reach a settlement but could proceed to deprivation of her property even in the absence of her consent. That was exactly what had happened when the Municipality had requested and obtained the change of the property title in the Land Registry on 15 February 2010. As to the parties’ dispute over the amount of the compensation, they could refer it to a court even after the fact of the deprivation had taken place.
13. On 31 January 2011 the Kutaisi Court of Appeals, rejecting the applicant’s appeal, upheld in full the judgment of 8 November 2010. The appellate instance reasoned that a court dispute relating to the authorisation to expropriate a property and a dispute relating to the assessment of a compensation payable for the expropriated property were two different and non-conflicting sets of judicial proceedings. Consequently, the fact that the parties had failed to reach an agreement on the amount of compensation could not be considered as an impediment for the deprivation of the applicant’s estate.
14. On 9 June 2011 the Supreme Court of Georgia, declaring the applicant’s cassation claim inadmissible, finally terminated the proceedings.
4. The applicant’s eviction on 9 August 2010
15. On 9 August 2010, that is whilst both sets of the above-mentioned parallel court proceedings were still pending, the Batumi City Hall proceeded to a forceful eviction of the applicant and her family members from the house.
16. Notably, representatives of the City Hall together with police officers surrounded the applicant’s house. The territory was blocked by police vehicles. Movers, recruited by the City Hall for this purpose, started taking out the pieces of furniture from the house, putting them on a truck and taking in an unknown direction. Witnessing the stressful turmoil, the applicant’s sister, who was 75 years old at that time, became seriously anxious, and an emergency was called. Immediately after the house had been emptied from all the furniture, a tractor started demolishing the walls of the house.
17. Soon after the eviction, on 12 August 2010 the applicant filed a criminal complaint with the Chief Public Prosecutor’s Office against those representatives of the Batumi City Hall and police officers who had forcefully evicted her.
18. By a letter of 10 September 2010 the prosecution authority advised the applicant that since there were no signs of a criminal offence in the actions of the State agents who had taken part in the eviction on 9 August 2010, there was no need for instituting criminal proceedings.
B. Relevant domestic law
19. According to Sections 1, 7 and 9 of the Act of 23 July 1999 on Deprivation of Private Property For Compelling Public Needs, as that law stood at the material time of the events, after a court had granted by its decision to an administrative entity “power to exercise expropriation” with respect to a private property, a major precondition which should precede the actual fact of deprivation of property was for “the expropriator” (which was defined as an administrative entity that had been conferred “the power to exercise expropriation” by a court decision) to do its best and reach an advance agreement with the owner of the property in question. An agreement could consist in either the payment of an adequate monetary compensation to the owner or offer of an alternative property in kind comparable in its value to the one which was going to be expropriated. For that purpose, the expropriator, after having been conferred the power of expropriation by a court, must address the owner of the impugned property with the terms set out in a written document. If the parties failed to reach an agreement, the dispute were to be referred to a court, and the latter would then be entitled to set an amount for adequate compensation payable by the expropriator to the owner of the property in question; for that purpose, the court could commission its own audit assessment of the property; the expropriator was expected to bear, amongst other things, all the costs and expenses relating to the court proceedings and audit assessment.
COMPLAINTS
20. The applicant complains that the expropriation of her property was conducted in breach of Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
Has the applicant been deprived of her estate in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
In particular, what was the significance of the fact that the Batumi City Court examined the Tbilisi City Hall’s request for leave to exercise expropriation with respect to the Adlia estate without involving the applicant at least as a third party? Was it appropriate, within the meaning of Article 1 of Protocol No. 1, for the Batumi City Hall, the expropriator, to effectuate the deprivation and demolition of the Adlia property without first having paid an adequate compensation to the applicant?
Was any compensation paid to the applicant after the demolition of her estate? In the affirmative, when exactly did it happen and what was the amount of the compensation?
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