Communicated on 30 August 2016
FOURTH SECTION
Application no. 34989/12
Noshrevan ZOIDZE against Georgia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
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. Zoidze v. Georgia, application no. 34989/12
4. The applicant and his family had been occupying an agricultural plot of land measuring 1900 sq. m in the village of Gonio (Khelvachauri District) since 1991. On 28 January 2007 the Property Recognition Commission issued, after studying his request and the supporting documents, a property certificate confirming the applicant’s ownership rights over the plot concerned. The property certificate made a mistake in the first name of the applicant. Thus, on 10 May 2010 the Commission issued an amended property certificate, on the basis of which the Public Registry registered the plot concerned in the applicant’s name on 1 June 2010.
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. As a basis for the review process served a request of the National Agency of Cultural heritage Preservation, according to which the process of privatisation in the region had been conducted in ignorance of the legislation regulating the status and regime of protected territories.
6. By a decision of 3 December 2010 the Property Recognition Commission revoked the applicant’s property title. In total it took 271 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 24 February 2011 the Khelvachauri District Court confirmed the revocation decision. The latter concluded that the plot of land allocated to the applicant had not been in his lawful possession. Furthermore, it had formed a part of a zone protected under the Law on Cultural Heritage. Hence, the recognition of the applicant’s ownership was ab initio wrongful.
8. The Kutaisi Court of Appeal upheld the first-instance decision on 10 May 2011. The court ruled that the property recognition decision had been made without comprehensive assessment of all the facts relevant to the case. In particular, the Commission had left unexamined the main characteristics of the plot concerned. Also the relevant legislation concerning the protection of cultural heritage had been overlooked.
9. By a decision of 30 November 2011 the Supreme Court of Georgia dismissed the appeal of the applicant on points of law as inadmissible.
2. Beridze v. Georgia, application no. 34998/12
10. By a decision of 24 March 2008 the Khelvachauri Property Recognition Commission recognised the applicant’s ownership right over a plot of land measuring 2300 sq. m in the village of Gonio. On 2 April 2008 the Civil Registry registered the plot concerned in the name of the applicant.
11. On 3 December 2010 the Khelvachauri Property Recognition Commission revoked the applicant’s property title. On 9 March 2011 the Khelvachauri District Court confirmed the revocation decision. The court referred to 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. It further concluded that the applicant had failed to submit documents proving his lawful possession of the plot concerned. The fact of arbitrary occupying the land had also not been proven.
12. The decision was upheld on appeal by the Kutaisi Court of Appeal on 10 June 2011. By a decision of 1 February 2012 the Supreme Court of Georgia dismissed the appeal of the applicant on points of law as inadmissible.
3. Veliadze v. Georgia, application no. 35038/12
13. The applicant had been occupying and cultivating a State-owned plot of land measuring 2540 sq. m. in the village of Gonio under a lease agreement since 1999. On 15 January 2008 the Property Recognition Commission, after studying the applicant’s request and supporting documents, recognised his property rights over the plot concerned. On 21 January 2008 the applicant acting on the basis of the property certificate issued by the Commission, registered with the Public Registry the plot in his name.
14. On 3 December 2010 the Khelvachauri Property Recognition Commission revoked the applicant’s property title.
15. On 15 February 2011 the Khelvachauri District Court confirmed the revocation of the applicant’s property right. The court concluded that the applicant’s initial application for the recognition of his ownership right had not been supported by the required documents. On 19 May 2011 the Kutaisi Court of Appeal upheld the first-instance court decision. By a decision of 16 November 2011 the Supreme Court of Georgia dismissed an appeal by the applicant on points of law as inadmissible.
4. Javakhishvili and Others v. Georgia, application no. 57437/12
16. According to the applicants (see the appended list), they were occupying and cultivating various agricultural plots of land in Gonio for years. At various times in 2008 the Khelvachauri Property Recognition Commission, after studying their requests and supporting documents, recognised their property rights over the plots concerned. On 3 December 2010 their property titles were revoked.
17. On 28 April 2011 the Khelvachauri District Court upheld the revocation of the applicants’ ownership rights. The decision was further confirmed by the Kutaisi Court of Appeal on 10 October 2011. The appeal of the applicants on points of law was rejected by the Supreme Court of Georgia as inadmissible on 29 February 2012.
5. Dumbadze v. Georgia, application no. 61414/12
18. The applicant was occupying a State-owned plot of land measuring 2,944 sq. m in the village of Gonio under a lease agreement since 1991. She was cultivating the plot and was paying all related taxes. It appears from the case file that the applicant also built a small wooden house measuring 52,52 sq. m there.
19. On 4 May 2009 the Khelvachauri Property Recognition Commission, after studying the applicant’s request and supporting documents, recognised her ownership rights to the plot concerned. The applicant was provided with a property certificate on the basis of which on 17 August 2009 she registered with the Public Registry the plot concerned in her name.
20. The validity of the applicant’s property title was confirmed in the context of a private family dispute by the Kutaisi Court of Appeal and the Supreme Court of Georgia on 28 April and 29 December 2010 respectively.
21. In the meantime, by a decision of 3 December 2010 the Khelvachauri Property Recognition Commission revoked the applicant’s ownership rights. The decision was upheld by the Khelvachauri District Court on 16 June 2011. The latter concluded that the Commission’s initial examination of the applicant’s request had been superficial and that the applicant had failed to show that she had indeed been unlawfully occupying the plot in question. The court further noted that in any event the privatisation of the plot concerned, which formed a part of the designated resort zone, should have been coordinated with the relevant public agencies.
22. On 28 October 2011 the Kutaisi Court of Appeal confirmed the revocation decision. By a decision of 2 May 2012 the Supreme Court of Georgia dismissed the appeal of the applicant on points of law as inadmissible.
B. Relevant domestic law and practice
1. The Constitution of Georgia
23. 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)
24. 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”.
25. 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
26. 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
27. The applicants complain that the revocation of their property rights was in breach of Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
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
Date of birth
Place of residence
Represented by
34989/12
08/05/2012
Noshrevan ZOIDZE
12/05/1962
Batumi
Shota JIBLADZE
34998/12
08/05/2012
Akaki BERIDZE
10/01/1963
Batumi
Shota JIBLADZE
35038/12
08/05/2012
Bezhan VELIADZE
20/08/1973
Gonio
Shota JIBLADZE
57437/12
27/08/2012
Rusudan JAVAKHISHVILI
13/12/1956
Batumi
Eter KAKABADZE
09/09/1960
Batumi
Zaza KARTSIVADZE
20/01/1975
Batumi
Gulpinaz KIDZINIDZE
10/08/1935
Batumi
Lado MZHAVANADZE
15/06/1942
Batumi
61414/12
30/08/2012
Natela DUMBADZE
Batumi
Shota JIBLADZE
Full & Egal Universal Law Academy