Communicated on 8 July 2016
FOURTH SECTION
Application no. 22398/10
TUREX LTD
against Georgia
lodged on 10 April 2010
STATEMENT OF FACTS
1. The applicant, Turex Ltd, is a limited liability company registered in Georgia. It is represented before the Court by Mr B. Kacan, a lawyer practising in Istanbul.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 4 August 1998 the Tbilisi Municipality issued a decree granting the applicant a right to possession over a plot of land measuring 8,704 square meters. A subsequent lease contract was concluded between the parties on 25 September 1998.
4. The applicant privatised the leased property in accordance with the domestic legislation on 12 July 1999 and became its lawful owner, as confirmed by the Tbilisi Public Registry records of 15 October 2001.
1. The first set of proceedings
5. On 6 July 2006 the Tbilisi City Hall requested the Tbilisi City Court to invalidate the applicant’s registration records at the public registry on account of the alleged errors in the privatisation process.
6. On 29 November 2007 the court rejected the request finding, among others, that the privatisation process had been carried out in accordance with the law and the company had a valid title to the property in question.
7. Parallel to the court proceedings, the Tbilisi City Government commenced an independent inquiry into the legality of the decree of 4 August 1998. According to the case materials, the applicant did not attend the hearing despite receiving an invitation to this end.
8. On 19 November 2007 the city government declared the decree void ab initio with an immediate effect reasoning that it had been issued by an unauthorised entity.
9. As the privatisation of the property in question rested on the rights acquired through the invalidated decree, the Tbilisi Court of Appeals annulled the decision of the lower court citing the disappearance of the subject-matter of the dispute and discontinued the proceedings on 10 September 2008.
2. The second set of proceedings
10. On an unspecified date the applicant lodged an appeal against the city government’s decision of 19 November 2007 declaring the decree of 4 August 1998 void ab initio.
11. The Tbilisi City Court found against the applicant on 27 November 2008 affirming the government’s reasoning that the decree had been issued by an unauthorised entity. The Court of Appeals upheld the decision of the first instance court on 22 April 2009.
12. The applicant’s arguments regarding the statute of limitations and the protection of bona fide owners were rejected. The domestic courts reasoned that under the domestic legislation no statute of limitation applies to such acts and the designation of an administrative act as void ab initio implies the nullification of all ensuing legal effects, without regard to the interests of bona fide parties.
13. The proceedings ended with the Supreme Court’s inadmissibility decision of 19 October 2009.
B. Relevant domestic law
14. The relevant provision of the General Administrative Code of Georgia, as in force at the material time, reads as follows:
Article 60 §§ 1 (b) and 2 – Void Administrative Acts
“1. An administrative act is considered void ab initio if: ...
(b) The act was issued by an unauthorised entity or a person; ...
2. The statute of limitations prescribed by the Code does not apply to void acts. The issuing authority shall declare the act void based on its own initiative or a request of the concerned party.”
15. Article 21 § 2 of the Constitution of Georgia provides that the right to property may be restricted based on a pressing social need and in circumstances that are expressly determined by the law, on the basis of a court decision or in urgent cases provided for by the organic law, provided that a full and fair compensation is awarded.
COMPLAINT
16. The applicant company complains that the annulment of the 4 August 1998 decree on 19 November 2007 and the resulting loss of its property amounted to a deprivation of property in 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, has the applicant company been deprived of its property 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 had no compensation for the property at issue, did the deprivation impose on the applicant an excessive individual burden (see, for example, Rysovskyy v. Ukraine, no. 29979/04, §§ 69‑74, 20 October 2011)?
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