SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 9297/08
by Teimuraz ANDRONIKASHVILI
against Georgia
lodged on 4 January 2008
The European Court of Human Rights (Second Section), sitting on 22 June 2010 as a Chamber composed of:
Françoise Tulkens, President,
Danutė Jočienė,
Ireneu Cabral Barreto,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 4 January 2008,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Teimuraz Andronikashvili, is a Georgian national who was born in 1928 and lives in Tbilisi. He was represented before the Court by Mr Alexander Baramidze, Mr Irakli Kandashvili and Mr Hans von Sachsen-Altenburg, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant's father, a member of the Georgian aristocracy, was deprived of his land and other assets by the Soviet Government during the 1920s and 1930s.
On 25 May 2005 the applicant brought an action against the relevant local authority, seeking restitution of his ancestral lands. In support of his claim, the applicant submitted archives confirming his father's title to the claimed land and, as a legal basis, referred to general rules on the protection of property and inheritance contained in the Civil Code, the Constitution and the international human-rights treaties ratified by Georgia. The action was registered by the Gurjaani District Court on the same day.
According to the file as it stands at present, the restitution proceedings are still pending at first instance; no hearing has been held so far.
B. Relevant domestic law and practice
1. The Civil Code as it stood at the material time
Article 172 of the Civil Code bearing on the protection of ownership reads as follows:
Article 172 §§ 1 and 2
“1. The owner can claim the asset back from the possessor unless the latter is entitled to possess it.
2. In the event of interference with the exercise of ownership other than the taking of the asset, the owner may request the trespasser to put an end to such an action. If the interference persists, the owner may bring a court action against the trespasser.”
2. The Act of 11 December 1997 concerning victims of political persecution by the Soviet State (“the Act of 11 December 1997”)
By passing the Act of 11 December 1997, the Georgian State recognised that Georgian nationals were subjected to political persecution by the Soviet State between February 1921 and 28 October 1991, entitling the victims to seek rehabilitation.
The Act defined the notion of a victim of political persecution and created a procedure by which to obtain that status. In particular, section 6 of the Act provided that only a court could declare a person to be a victim. Section 3 specified that the next of kin of a direct victim was also entitled to seek rehabilitation.
Section 8 (1) and (2) stated that, once recognised as a victim of political repression, the person in question would automatically have his or her political and civil rights reinstated. This excluded the reinstatement of any property rights, in so far as subsection 3 of the same section specified that “the means for the restitution of property of victims of political repression shall be governed by a separate Act”.
No act concerning the restitution of property of victims of Soviet repression has yet been passed.
3. The cases of Cholokashvili, Chachua-Daghundaridze and Abkhazi
In a decision of 31 July 1998, the Gori District Court reinstated the ownership rights of the claimant Mrs E. Cholokashvili over her late parents' land expropriated by the Soviet State in the 1930s. Mrs Cholokashvili had previously been recognised as a victim of Soviet repression within the meaning of the Act of 11 December 1997.
Likewise, in a decision of the Krtsanisi-Mtatsminda District Court in Tbilisi of 24 October 2000, Mrs K. Chachua-Daghundaridze and Mrs T. Daghundaridze, the claimants, were declared the owners of assets once belonging to their ancestors who had been recognised as victims of Soviet repression.
Another similar case was that of Mr N. Abkhazi, who, in a decision of 18 January 2005 of the Gurjaani Distrcit Court, was granted title to land expropriated from his grandfather by the Soviet State in 1923 and 1924. The only difference between this and the two above-mentioned cases was that, prior to the restitution of the property, neither Mr Abkhazi, the claimant, nor any of his ancestors had been recognised as victims of the Soviet State within the meaning of the Act of 11 December 1997.
In all three above-mentioned cases, the claimants were excused from having missed the statutory time-limit for recovery of property, in view of the fact that the expropriation of their ancestors' property had been carried out by force and the respondents were either private persons or public agencies. The domestic courts' reasons underlying their decisions to allow restitution were based on the general principles of protection of property and the inheritance rules contained in the Civil Code, the Constitution and international human-rights treaties. Certain other general principles of law, such as equity, were also relied on.
4. The Recommendations of the Supreme Court of Georgia issued on 25 July 2007
As acknowledged by the President of the Supreme Court in his foreword to its Recommendations, one of the problems of the Georgian judiciary was the lack of consistent case-law on similar disputes. Consequently, the Supreme Court deemed it necessary, for the purposes of harmonising judicial practice, to advise the lower courts on how certain types of dispute should be resolved. The President noted that the Recommendations were not of a mandatory nature but emphasised their significance.
Chapter XIV of the Recommendations advised the courts that they should declare claims for restitution of property expropriated by the Soviet State in the 1920s and 1930s admissible but refuse them on the merits in view of the absence of a right to restitution under Georgian law.
COMPLAINTS
The applicant complained under Article 6 § 1 about the length of the domestic proceedings. Under Article 13 of the Convention, he claimed that there had been no effective domestic remedy for the above complaint.
Relying on Article 1 of Protocol No. 1, the applicant challenged the expropriation of his father's property by the Soviet State and claimed that the delay in the domestic proceedings had infringed his property rights.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
A. The parties' arguments
The Government submitted that because Georgian law did not contain a right to the restitution of property expropriated by the Soviet State, Article 6 § 1 of the Convention could not apply to the proceedings in question. They noted that the Act of 11 December 1997 explicitly stated that the issue of restitution was to be addressed by separate legislation. However, no such Act has been passed by the Georgian legislator to date.
As to the cases of Cholokashvili, Chachua-Daghundarizde and Abkhazi, the Government contended that those were just rare exceptions to the mainstream judicial practice in the matter. They noted that, under the Recommendations issued by the Supreme Court on 25 July 2007, the domestic courts were directed, as a general rule, to reject the merits of similar actions for the restitution of property in view of the absence of a relevant right in the domestic law. The Government argued that, in the above-mentioned exceptional cases, the domestic courts were rather guided by the general principles of law, such as equity, and that, consequently, their rulings were a mere exercise of their discretionary power, which could not be translated into the existence of an actual right in law (Masson and Van Zon v. the Netherlands, 28 September 1995, § 51, Series A no. 327‑A).
Returning to the circumstances of the present case, the Government noted that, apart from registering the applicant's action, no ruling on the admissibility of that litigation had yet been delivered by the Gurjaani District Court. However, the mere registration of the action could not be equated with the court's recognition of the existence of an arguable claim in that regard. The Government also asked the Court to be mindful of the fact that the applicant's case was directly related to the process of transition from the former communist legal order and its property regime to one compatible with the market economy, and that no general obligation could be imposed on the Georgian State to establish legal procedures in which restitution of property could be sought by private individuals (Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX).
The applicant replied that, whilst a separate Act still remained to be passed in order to govern the means of returning property to victims of Soviet repression, the existence of the right to restitution, as such, already followed from the wording of section 8 (3) as well as from the very spirit of the Act of 11 December 1997. He added that there also existed other, more general rules on the reinstatement of property rights, such as Article 172 § 1 of the Civil Code. However, the main proof of the existence of a right to the restitution of property expropriated by the Soviet State was the above‑mentioned judicial practice (see the cases of Cholokashvili, Chachua‑Daghundarizde and Abkhazi above). The applicant also referred to precedents of restitution set by the executive branch of the respondent State. He alleged, in particular, that the current President of Georgia is known to have ordered the restitution of large plots of land to the Georgian Orthodox Church and to certain private individuals.
As to the Recommendations of the Supreme Court of Georgia, the applicant strongly objected to their legitimacy. He compared those Recommendations to the Circular Letter of the Central Executive Committee of the Soviets of People's Deputies dated 8 February 1938. By that Circular Letter, the highest executive authority of the then Soviet Georgia had similarly directed the courts to reject claims for restitution of property which had been expropriated from private individuals by the newly created Soviet State. The applicant denounced this practice of the Supreme Court as incompatible with the principle of the independence and impartiality of judges in a democratic country governed by the rule of law.
B. The Court's assessment
The Court reiterates that, in order to determine whether or not Article 6 § 1 of the Convention is applicable under its “civil” limb to the judicial proceedings, its primary task is to assure that the contested right or interest can be said, at least on arguable grounds, to be recognised under the domestic law. If this first condition has been met, the Court would then enquire into the genuineness and seriousness of the dispute, and, finally, assess the degree of causality between the outcome of the dispute and the right or interest in question (see, for example, Masson and Van Zon, cited above, § 44; Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 43, ECHR 2000-IV; Syndicat des médecins exerçant en établissement hospitalier privé d'Alsace and Others v. France (dec.), no. 44051/98, 31 August 2000).
The Court notes that, in the recent case of Klaus and Yuri Kiladze v. Georgia (no. 7975/06, §§ 55-61, 2 February 2010), it has already established, after having examined the relevant Georgian law, including the Act of 11 December 1997, that there does not exist a right to claim the restitution of property expropriated from Georgian nationals or their ancestors by the Soviet State. As regards the applicant's reference to the domestic cases of Cholokashvili, Chachua-Daghundarizde and Abkhazi, the Court considers that this argument would have been relevant to the second stage of the applicability test – the assessment of the seriousness and genuineness of the dispute. Otherwise, these cases, being inconsistent with mainstream judicial practice (see the Supreme Court's position on the matter above), could not have generated a right which has clearly no basis in the domestic legislation.
Thus, irrespective of whether the proceedings in the present case could be said to have been “serious and genuine”, and whether they have been pending before the domestic courts for an unacceptably long time, the reality, which is the starting point for the applicability test under Article 6 § 1 of the Convention, is that the applicant has no legal right to claim the property expropriated from his grandfather during the 1920s and 1930s. It is to be recalled that the Court may not, by its own interpretation of Article 6 § 1 of the Convention, create a right that has no basis in the domestic legal system (see, Masson and Van Zon, cited above, § 52; Kikolashvili v. Georgia (dec.), no. 37341/04, 3 February 2009; Mennitto v. Italy [GC], no. 33804/96, § 27, ECHR 2000-X; Salerno v. Italy, 12 October 1992, § 14, Series A no. 245-D; Z and Others v. the United Kingdom [GC], no. 29392/95, § 87, ECHR 2001-V).
It follows that the applicant's complaint about the length of the domestic proceedings is incompatible ratione materiae with Article 6 § 1 of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4.
II. ALLEGED VIOLATIONS OF ARTICLE 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
Relying on Article 13 of the Convention and Article 1 of Protocol No. 1 respectively, the applicant complained that he had had no effective remedy in respect of the length of the domestic proceedings and that those pending proceedings had infringed his property rights. Article 1 of Protocol No. 1 was further invoked to challenge the expropriation of his late father's property by the Soviet State during the 1920s and 1930s.
However, the Court, having due regard to its findings with respect to the complaint under Article 6 § 1 of the Convention as to the absence of any arguable right to the restitution of property, concludes that these complaints are also to be rejected as being incompatible ratione materiae pursuant to Article 35 §§ 3 and 4. Moreover, the complaint directly related to the Soviet expropriation in the 1920s and 1930s arose prior to the Court's temporal jurisdiction with respect to the respondent State and cannot, therefore, be examined ratione temporis by virtue of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Stanley NaismithFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy