Last Updated on November 30, 2021 by LawEuro
FIFTH SECTION
CASE OF EKA MIKELADZE AND OTHERS v. GEORGIA
(Applications nos. 29385/11 and 3 others)
JUDGMENT
STRASBOURG
25 November 2021
This judgment is final but it may be subject to editorial revision.
In the case of Eka Mikeladze and Others v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ganna Yudkivska, President,
Stéphanie Mourou-Vikström,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the applications (nos. 29385/11, 19372/12, 29533/13, and 73699/13) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Georgian nationals (“the applicants”), on the various dates indicated in the appended table;
the decision to give notice to the Georgian Government (“the Government”) of the complaints under Article 1 of Protocol No. 1 and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 4 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applications concern, under Article 1 of Protocol No. 1, the alleged unlawfulness of the revocation of the applicants’ property rights over plots of land.
THE FACTS
2. A list of the applicants is set out in the appended table.
3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
A. Land reform in Georgia
5. In 2007 reforms were introduced concerning the privatisation of land in Georgia. On 11 July that same year the Parliament of Georgia passed the Law on the recognition of property rights to plots of land possessed (used) by natural and legal persons (“the Recognition Act”). 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, namely lawful land ownership, lawful land use and land held in adverse possession. The implementation of the Recognition Act was facilitated by Order of the President No. 525 on the rule of recognition of property rights over land in possession (use) by natural and legal persons and approval of the certification of ownership rights, issued on 15 September 2007. Under the Presidential Order, a number of property recognition commissions (hereinafter referred to as “property commissions”) were established within local self-government bodies, tasked with the examination of applications from natural and legal persons for recognition of ownership over land.
B. Recognition and subsequent revocation of the applicants’ ownership rights
1. Application no. 29385/11 by Ms E. Mikeladze
6. On an unidentified date the applicant, Ms E. Mikeladze, requested the Khelvachauri property commission to recognise her property rights over a plot of land measuring 2,390 sq. m in the village of Mtsvane Kontskhi (Khelvachauri District). She claimed to have been occupying it since 1985 under a lease. On 3 January 2008 the property commission granted her request, recognising her property rights in respect of the plot concerned. On 15 January 2008 the Public Registry, acting at the request of the applicant and on the basis of the property certificate issued by the property commission, registered the plot of land in the applicant’s name.
7. On 24 December 2009 the property commission, acting on the basis of Article 60(1) §§ 1 and 3 of the General Administrative Code (hereinafter “the GAC” – see paragraph 30 below) revoked its decision of 3 January 2008. According to the minutes of a meeting, having conducted an on-site inspection and after re-examining the applicant’s file, the property commission established that the plot allocated to the applicant covered parts of adjacent roads and a park; it also overlapped with a plot of land owned by another person on the basis of a deed of title granted on 28 December 2007. In the latter connection, the property commission emphasised that the registration of the other person’s ownership had preceded the issuance of a property certificate to the applicant. The property commission accordingly concluded that the initial recognition of the applicant’s property rights over the plot of land concerned was “unfounded”. It declared null and void the applicant’s property certificate issued on 3 January 2008 and requested the public registry to annul the registration of the applicant’s property rights.
8. On 9 February 2010 the applicant lodged an administrative complaint with the Khelvachauri District Court, seeking the setting-aside of the property commission’s decision of 24 December 2009. She argued that her plot of land did not overlap with the roads and the park, as had been concluded by the property commission, and that the cadastral plan it had relied upon was inaccurate. As to the overlap with another person’s property, she noted that criminal proceedings for possible fraud were pending in that connection and that that person’s title to the property in question had already been declared null and void. The applicant requested the restoration of her property rights over the plot of land concerned.
9. On 9 March 2010 the Khelvachauri District Court confirmed the commission’s decision to revoke the applicant’s property rights. It concluded that the initial title deed had been issued unlawfully, since the applicant had failed to support her recognition request with the required documents. The court omitted the issue of the alleged overlap of the plot at stake with that of the adjacent roads and a park and with the property of another person. It observed, however, that the plot in question was part of a resort zone.
10. The decision of the first-instance court was upheld on appeal by the Kutaisi Court of Appeal on 6 July 2010. The Court of Appeal concluded that the applicant had failed to support her request for recognition of her property rights by means of documents showing that she had indeed been occupying the contested plot, albeit unlawfully.
11. On 22 November 2010 the Supreme Court of Georgia dismissed an appeal by the applicant on points of law as inadmissible.
2. Application no. 19372/12 by Mr N. Jintcharadze
12. On 15 December 2007 the applicant, Mr N. Jintcharadze, submitted a request to the Khelvachauri property commission for recognition of his property rights over a plot of land measuring 2,500 sq. m in the village of Mtsvane Kontskhi. On 19 December 2007 the property commission granted his request, recognising his right of ownership over a plot of land measuring 3,620 sq. m. The applicant was accordingly provided with a certificate of ownership, on the basis of which he registered the plot concerned in his name with the Public Registry on 10 March 2008.
13. On 10 April 2008, a 1,300 sq. m portion of the same plot of land was registered in the name of a third party, M.J. At the same time, at the request of M.J., the property commission started reconsidering the applicant’s property rights. On 27 June 2008 the same property commission overturned its previous decision, revoking the applicant’s right of ownership. The property commission found that the applicant’s plot overlapped with that of M.J. and other third parties.
14. The applicant lodged an application with the Khelvachauri District Court, seeking the revocation of M.J.’s property rights and the setting-aside of the property commission’s decision of 27 June 2008. After the first round of court proceedings, the case was remitted to the property commission with a view to its issuing a new decision. Having re-examined the applicant’s file, on 10 September 2010 the property commission concluded that the initial recognition of the applicant’s property rights over the plot of land concerned had been wrong and in violation of the applicable legislation. It concluded that the applicant had failed to show that he had indeed been in possession of the plot in question or had occupied it, even if unlawfully. That decision was confirmed by the Khelvachauri District Court on 17 December 2010. As well as noting the applicant’s failure to substantiate his request for recognition of his property rights by submitting the required evidence, the court observed that the plot concerned was part of a recreational zone.
15. The applicant appealed, maintaining that the first-instance court had disregarded the evidence he had submitted in support of his application, notably the cadastral plan of the plot of land and a copy of a certificate issued by the public archive showing that he had held the plot in adverse possession prior to the enactment of the Recognition Act. As to the argument that the plot was part of a recreational zone, he noted that the status of recreational zone had not been granted to the entire village of Mtsvane Kontskhi, and that various plots adjacent to the plot in issue had been transferred into private ownership.
16. On 2 March 2011 the Kutaisi Court of Appeal confirmed the revocation of the applicant’s title. While noting that the applicant had produced the required cadastral plan, it concluded that the document was flawed because it did not contain certain items of information. Moreover, according to the appellate court, he had failed to submit other documents as required under Presidential Order no. 525. It also noted that the case at hand did not concern the alleged expropriation of the applicant’s property – rather, the court was examining the lawfulness of granting property rights on the basis of a by-law. The Kutaisi Court of Appeal did not address the applicant’s argument concerning the recreational status of the village.
17. On 14 September 2011 the Supreme Court of Georgia dismissed an appeal by the applicant on points of law as inadmissible.
3. Application no. 29533/13 by Mr T. Tavdgiridze
18. On 31 March 2008 the applicant, Mr T. Tavdgiridze, requested the Kobuleti property commission to recognise his property rights over an agricultural plot of land measuring 1,566 sq. m in the village of Chakvi, which he claimed to have been occupying since 1985. On 7 April 2008 the property commission, having examined the applicant’s request and supporting documents, recognised his ownership rights over the plot concerned. On 15 April 2008 the Public Registry, acting at the request of the applicant and on the basis of the property certificate issued by the property commission, registered the plot in the applicant’s name.
19. On 17 June 2011 the property recognition commission, having re‑examined the applicant’s application at the request of the Ministry for Finance and Economy of the Ajarian Autonomous Republic, revoked the applicant’s deed of property title, concluding that the applicant had failed to show that he had either been in lawful possession of the plot concerned or had held it in adverse possession.
20. The applicant appealed, alleging, inter alia, that under Article 60(1) of the GAC, he had “legitimate trust” in the document issued by the property commission and accordingly, as a piece of rights-granting legislation, it could not be declared null and void (for the relevant provision, see paragraph 30 below).
21. On 8 December 2011 the Batumi City Court confirmed the revocation decision. The court concluded that the plot of land allocated to the applicant had never been in the applicant’s possession as it was not an agricultural plot per se. In fact, it was part of a designated recreational area, known as Eucalyptus Alley. Thus, the recognition of the applicant’s ownership had been erroneous from the outset. In reaching its conclusion the first-instance court referred to Article 60(1) § 1 of the GAC, by which a piece of delegated legislation was null and void if it contradicted a law or if other requirements for its drafting and issuing had been substantially violated. It did not address the applicant’s argument concerning the issue of “legitimate trust” in “rights-granting legislation”.
22. The Kutaisi Court of Appeal upheld the first-instance decision on 6 April 2012. While noting that the initial recognition of the applicant’s property rights had occurred without the property commission fully examining all the relevant circumstances, which was in breach of Article 60(1) of the GAC, the appellate court ignored the argument that the applicant had put forward with reference to paragraph 4 of that Article.
23. The Supreme Court of Georgia dismissed an appeal on points of law by the applicant as inadmissible on 14 November 2012.
4. Application no. 73699/13 by Mr Sh. Ananidze
24. On an unidentified date the applicant, Mr Sh. Ananidze, requested the Kobuleti property commission to recognise his property rights over a plot of land measuring 3,792 sq. m in the village of Chakvi. He claimed to have been occupying and farming this plot of land, which was owned by the State, under a lease dating back to 1998. In 2006 the lease was terminated but the applicant continued to occupy and farm the land, albeit unlawfully.
25. On 5 May 2008 the property commission recognised the applicant’s property rights over the plot concerned, finding that it had been held in adverse possession. The applicant was provided with a certificate of ownership, on the basis of which the Public Registry registered the plot in his name on 20 May 2008.
26. In 2012 the applicant learnt that his property rights had been revoked. In reply to an enquiry from the applicant, the property commission informed him that it had revoked his ownership rights on 30 September 2009. According to an excerpt from the minutes of the meeting, the property commission concluded the following:
“In respect of the plot of land concerned, the property right was recognised in relation to a plot of land that was held in adverse possession. However, when making the decision, the requirements set out in the legislation either on the rules for preparing or issuing a decision were substantially violated (the fact that the land may have been held in adverse possession had not been established).”
27. The applicant appealed. He argued, inter alia, that he had not been informed about the institution of the revocation procedure, and that he had therefore been prevented from participating in the relevant administrative proceedings and from defending his position. On the merits, he maintained his position that, for the purposes of the Recognition Act, he had held the plot concerned in adverse possession. On 25 May 2012 the Batumi City Court dismissed the applicant’s appeal, upholding in full the decision of the property commission. It found that since 1998 the applicant had been in lawful possession of the plot under a sublease agreement, a fact which in itself precluded the recognition of his title under the Recognition Act of 2007. The court further rejected the applicant’s allegations concerning procedural flaws in the administrative process conducted by the property commission.
28. The applicant appealed, maintaining that the sublease agreement had been invalidated on 16 June 2006, and that subsequently he had held the plot in adverse possession. By a decision dated 27 September 2012, the Kutaisi Court of Appeal confirmed the first-instance court’s decision. It accepted the applicant’s argument concerning the invalidation on 16 June 2006 of the sublease agreement. It held, however, that the fact that the land might have been held in adverse possession could not be proved solely on the basis of witness statements, adding that other convincing evidence was required. It thus concluded that the applicant had failed to show that he had been occupying, albeit unlawfully, the plot concerned before the enactment of the Recognition Act.
29. On 11 February 2013 the Supreme Court of Georgia dismissed an appeal on points of law by the applicant as inadmissible. Its decision was served on the applicant on 26 April 2013.
RELEVANT LEGAL FRAMEWORK
A. General Administrative Code of Georgia of 25 June 1998
30. The relevant Articles of the GAC, in so far as the issuing and review of a piece of delegated legislation are concerned, read as follows:
Article 60(1)
Delegated legislation declared null and void
“1. A piece of delegated legislation shall be considered null and void if it contradicts a law or if other requirements for its drafting and issuing as provided for by the legislation have been substantially violated.
…
3. A piece of delegated legislation may be declared null and void by the issuing public authority or, in the event of a complaint or application, by a higher public authority or a court.
4. A piece of rights-granting delegated legislation shall not be declared null and void if an interested party has legitimate trust in such legislation, unless [it] substantially violates the legal rights or interests of a State, the public or other individuals.
5. An interested party may be deemed to have legitimate trust when that party has undertaken a legal transaction on the basis of a piece of delegated legislation and that party would suffer damage if such legislation is declared null and void. There shall be no legitimate trust based on the unlawful act of an interested party.
6. If a piece of rights-granting delegated legislation that has violated the lawful rights and interests of a State, the public or other individuals is declared null and void, the interested party, in the circumstances provided for in the fifth paragraph of this Article, shall be compensated for the material damage sustained as a result … through a balancing of private and public interests.
…”
Article 96
Consideration of the circumstances of a case
“…
2. No piece of delegated legislation may be issued on the basis of a circumstance or a fact which has not been examined by an administrative body in accordance with the procedure provided by law.”
Article 207
Application of the Civil Code of Georgia to proceedings
concerning damage inflicted by a public authority
“Unless otherwise specified in this Code, damage inflicted by a public authority shall be compensated for in accordance with the rules prescribed by the Civil Code of Georgia.”
B. The Civil Code
31. Articles 992-1008 of the Civil Code, as it stood at the material time, contained the rules on liability for civil wrongs, or torts. In particular, whilst the general provision, Article 992, stated that a civil wrong gave rise to a claim for compensation, Article 1005 specified that public authorities were jointly liable for damage caused to a private party through intentional or negligent actions on the part of their officials which amounted to an abuse of power.
C. Law on recognition of property rights to plots of land in possession (use) by natural and legal persons (Recognition Act of 2007)
32. Under its section 1, the purpose of the Recognition Act (see paragraph 5 above) is to allow for the recognition of property rights to State-owned plots of land in lawful possession (use) or held in adverse possession by natural or legal persons. The most relevant provisions of the Recognition Act, as in force at the material time, read as follows:
Section 2 – Definitions
“Terms used in this Law shall have the following meanings:
(a) ’lawfully possessed land’: a State-owned agricultural or non-agricultural plot of land with or without buildings (whether built, under construction or in a ruinous condition) for which a natural 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 (whether built, under construction or in a ruinous condition), in respect of which a natural or legal person, or any other organisational structure provided for by law, has acquired the right of use before 12 November 1998 …
(c) ’land held in adverse possession’: a State-owned agricultural or non-agricultural plot of land with or without buildings (whether built, under construction or in a ruinous condition) which was held in adverse possession by a natural or legal person … before the entry into force of this Law, and which at the time a request was made for the rights of ownership to be recognised has not been disposed of by the State …”
Section 3 – Scope of the Law
“…
2. No property rights shall be recognised in respect of the following State-owned agricultural or non-agricultural plots of land:
(a) routes for driving cattle/livestock;
…
(c) protected territory;
(d) recreational parks, wooded parkland, public squares …;
(e) historical, cultural, natural or sacred monuments;
(f) plots of land for public use (squares, streets, passages, roads, pavement, embankments) and recreational locations (parks, woodland parks, public gardens, paths, shrubberies and botanical gardens) …”
Section 4 – The body competent to recognise property rights
“1. The authority to recognise property rights in respect of lawfully possessed or used plots of land or plots of land held in adverse possession shall fall within the competence of the relevant representative body of local self-government; the competence shall be exercised by way of a commission. The commission shall exercise its functions in line with the formal administrative procedure provided for in Chapter VII of the General Administrative Code and in accordance with this Law …”
Section 5 – The rule on recognition of ownership rights in respect of lawfully possessed or used land or land held in adverse possession
“1. Applications in writing must be submitted to the commission by an interested party as a basis for the examination of a request for the recognition of property rights in respect of lawfully possessed or used land or land held in adverse possession.
2. While examining a request for the recognition of property rights in respect of land held in adverse possession, its conformity with the conditions of land-use planning and the strategic plan for land distribution shall be assessed.
3. To support his or her request for the recognition of property rights in respect of lawfully possessed or used land or plots of land held in adverse possession, the interested party shall submit the following:
(a) documentation proving the lawful possession, usage or adverse possession of the land or a witness statement to that effect;
(b) a cadastral plan of the plot of land;
(c) information relevant for calculating the fee for the recognition of the property rights;
…
(e) copies of identification papers of the interested party …
5. If a request by an interested party for the recognition of property rights in respect of lawfully possessed land meets in its entirety or partially the conditions laid down in the present Law, the commission … shall take a decision on the recognition of property rights in respect of the lawfully possessed land in full or in part, and shall issue a document certifying property rights 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 held in adverse possession meets in full or in part the conditions of the present Law, the commission shall send to the interested party a written notification concerning the fee for such recognition … If the interested party pays the fee for the recognition of property rights … the commission shall take a decision recognising the property rights in full or in part and shall issue a document certifying property rights and a certified cadastral plan …
7. If the request by an interested party for the recognition of property rights does not meet the conditions provided for by this Law, or if the documents in support of the application fail to prove actual lawful possession, use or adverse possession … the commission shall, by written decision, reject the recognition of property rights.”
D. Order of the President No. 525 on the rule of recognition of property rights over land in possession (use) by natural and legal persons and approval of the form of certificate on ownership rights (as in force at the material time)
33. The Presidential Order, which was adopted on 15 September 2007 (see paragraph 5 above), set out details on the procedure and conditions for the recognition of ownership rights in respect of State-owned agricultural and non-agricultural land. Among other things, it provided for the composition and authority of property commissions and set the relevant deadlines. Article 2 § 1 (e) defined the types of document showing adverse possession of a plot as follows: a document proving the existence of a right (if such a document existed at all), a court decision and/or any other document.
34. Article 11 § 4 (b), which listed the documents that had to be submitted in support of requests for recognition, read as follows:
“4. The application shall be supported by:
(a) a document proving lawful possession, usage and/or adverse possession [of the land];
(b) a cadastral plan of the plot of land which, together with other cadastral data, shall provide for the boundaries and the area of the [relevant] plot of land and related buildings;
(c) information relevant for calculating the fee for the recognition of the ownership rights, in particular, the location or address of the plot of land, [its] purpose (agricultural, non-agricultural), …
(d) copies of identification papers of the interested party and/or of his or her authorised representative …”
THE LAW
I. JOINDER OF THE APPLICATIONS
35. Having regard to the similar subject matter of the various applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
36. The applicants complained that the revocation of their property rights was in breach of Article 1 of Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Admissibility
37. The Government submitted that the applicants had failed to exhaust the domestic remedies available to them. In particular, after having been unsuccessful in administrative proceedings, the applicants should, in the Government’s submission, have initiated compensation proceedings with a view to claiming compensation for damage inflicted by the administrative authorities that is, the relevant property commissions. The Government referred in that connection to the relevant provisions of the GAC and of the Civil Code, which envisaged a procedure for claiming damages from the State or local self-government bodies for any damage inflicted either unlawfully, intentionally or by negligence (see the relevant provisions cited in paragraphs 30-31 above). In the Government’s view, that remedy was adequate and effective, as already found by the Court in the case of Saghinadze and Others v. Georgia (no. 18768/05, §§ 94-96, 27 May 2010).
38. The applicants argued that they had exhausted all remedies available to them in their efforts to oppose the revocation of their property rights. They submitted that the initiation of compensation proceedings would have been futile and unlikely to succeed in view of the domestic courts’ conclusion that the recognition of their property deeds had been unlawful from the outset. The reasoning in the relevant decisions of the domestic courts, according to the applicants, placed the entire responsibility on them, disregarding the potential liability of the relevant self-government bodies.
39. In their letter of 26 October 2021 the Government further submitted that the applicants had at their disposal another effective remedy in the form of administrative proceedings, which they had not availed themselves of. Thus, they had failed to apply (with the exception of the first applicant whose application was still pending) to the new property recognition commission for re-examination of their cases.
40. Starting with the first argument, the Court notes that under Article 35 § 1 of the Convention, normal recourse should be made by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 71, 25 March 2014).
41. In the present case the applicants complained that they had lost their property rights over plots of land as a result of arbitrary administrative decisions. The only available direct remedy against the relevant decisions of the property commissions was to challenge their legality before the domestic courts, a remedy used by the applicants. The Court considers that a compensation claim in a separate set of proceedings, once administrative proceedings as regards their title to the plots of land had been completed, would have placed a somewhat excessive burden on the applicants’ shoulders (see Arzamazova v. the Republic of Moldova, no. 38639/14, § 35, 4 August 2020, and Bogdel v. Lithuania, no. 41248/06, § 52, 26 November 2013; see also, mutatis mutandis, Bistrović v. Croatia, no. 25774/05, § 28, 31 May 2007; see also the Court’s reasoning in paragraph 60 below).
42. The Court is therefore satisfied that the applicants provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them. The complaints of the applicants cannot therefore be declared inadmissible for non-exhaustion of a compensation remedy and accordingly the Government’s relevant objection must be dismissed.
43. As to the Government’s letter of 26 October 2021, the Court reiterates that under Rule 55 of the Rules of Court, any plea of inadmissibility must have been raised by the respondent Contracting Party – in so far as the nature of the objection and the circumstances so allowed – in its written or oral observation on the admissibility of the application (see N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; Markus v. Latvia, no. 17483/10, § 50, 11 June 2020, and Skudayeva v. Russia, no. 24014/07, § 27, 5 March 2019) and failure to do so will lead the Court to find that the Government are estopped from raising the objection (ibid.). The Government had not raised an objection as to the non-exhaustion of new administrative remedy in their observations on the admissibility and merits of the present cases. While in their letter of 28 December 2018 they informed the Court that in several related cases pending before it that remedy proved to be effective with the applicants’ property titles over plots of land being restored following a new round of administrative proceedings (see in this respect the Court’s decisions in the cases of Diasamidze v. Georgia, no. 67857/11, 3 July 2018; Avaliani v. Georgia, no. 7220/11, 12 December 2019, and Shavadze and Others v. Georgia, no. 31315/12, 13 October 2020), they did not explicitly raise an objection as to the non‑exhaustion of that particular remedy in the present cases. Furthermore, the Court notes that the Government have not provided any explanation for that delay and it cannot find any exceptional circumstances capable of exempting them from their obligation to raise any objection to admissibility in a timely manner (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 52, ECHR 2016 (extracts)). It follows that the Government are thereby estopped from raising this objection.
44. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
45. The applicants maintained that the revocation of their property rights had been unlawful. The applicants in applications nos. 29385/11 and 19372/12 (Ms E. Mikeladze – see paragraphs 6-11 above, and Mr N. Jintcharadze – see paragraphs 12-15 above) pointed out the inconsistency in the arguments of the property commission and of the domestic courts. Thus, the property commission had revoked the initial recognition of their rights because the plots of land in question overlapped both with roads and a park (application no. 29385/11), and with the property of third parties (applications nos. 29385/11 and 19372/12). The courts had simply concluded that the applicants had failed to submit the documents required for the recognition of their rights. They further concluded that the relevant plots of land formed part of the so-called resort zone, a point that had been entirely overlooked by the property commissions. The applicants in applications nos. 29533/13 and 73699/13 further maintained that the revocation decisions were unsubstantiated.
46. The Government submitted that the revocation of the applicants’ property rights had been lawful as it had been conducted in line with the procedure envisaged in Article 60(1) §§ 1 and 3 of the GAC. As to the reason for the revocation, they argued that it had served the following aims: the correction of certain errors committed by local administrative authorities; the prevention of an erroneous transfer of a plot of land from the State to private individuals; the protection of the State’s holding of agricultural land; and the promotion of good governance and of the rule of law. In the context of the examination of the proportionality of the measure concerned, they emphasised that the overall purpose was to prevent scarce public resources from being allocated inappropriately. In view of the importance of the public interest at stake, they maintained that a fair balance had been struck between the rights of the applicants on the one hand and the interests of the public on the other. They also noted, without any further elaboration, that the revocation of the applicants’ property rights had not placed an excessive burden on them.
2. The Court’s assessment
(a) General principles
47. The relevant principles are set out in Vistiņš and Perepjolkins v. Latvia [GC] (no. 71243/01, § 93, §§ 95-99 and §§ 108-14, 25 October 2012) and Hutten-Czapska v. Poland [GC] (no. 35014/97, §§ 163-68, ECHR 2006‑VIII). In particular, any interference by a public authority with the peaceful enjoyment of possessions must be lawful. However, the existence of a legal basis in domestic law does not suffice, in itself, to satisfy the principle of lawfulness. In addition, the legal principles upon which the deprivation of property is based should be sufficiently accessible, precise and foreseeable in their application (see Vistiņš and Perepjolkins, §§ 96-97, and Hutten-Czapska, § 163, both cited above). Uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct.
48. Article 1 of Protocol No. 1 further requires that any interference be reasonably proportionate to the aim pursued. Consequently, any interference must achieve a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see, among other authorities, Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999‑VII).
49. The principle of “good governance” requires that where an issue in the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, it is incumbent on the public authorities to act in good time, in an appropriate manner and with the utmost consistency (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‑I; see also Rysovskyy v. Ukraine, no. 29979/04, § 70, 20 October 2011, with further references). The principle of good governance should not, as a general rule, prevent the authorities from correcting occasional mistakes, even those resulting from their own negligence. However, the need to correct an old “wrong” should not disproportionately interfere with a new right which has been acquired by an individual relying on the legitimacy of the public authority’s action in good faith (see, mutatis mutandis, Pincová and Pinc v. the Czech Republic, no. 36548/97, § 58, ECHR 2002‑VIII). In other words, State authorities which fail to put in place or adhere to their own procedures should not be allowed to profit from their wrongdoing or to escape their obligations (see Lelas v. Croatia, no. 55555/08, § 74, 20 May 2010). The risk of any mistake made by the State authority must be borne by the State itself and the errors must not be remedied at the expense of the individuals concerned (see Vukušić v. Croatia, no. 69735/11, § 64, 31 May 2016, with further references).
50. In the context of the revocation of a property right granted erroneously, the principle of good governance may not only impose on the authorities an obligation to act promptly in correcting their mistake (see, for example, Moskal v. Poland, no. 10373/05, § 69, 15 September 2009), but may also necessitate the payment of adequate compensation or another type of appropriate reparation to the former bona fide holder of the property (see Belova v. Russia, no. 33955/08, § 37, 15 September 2020; see also Bogdel, § 66, and Rysovskyy, § 71, both cited above).
(b) Application of the Convention principles to the instant case
(i) Whether there was an interference with the applicants’ possessions
51. The Court notes that the Government did not argue that any of the applicants did not have a possession within the meaning of Article 1 of Protocol No. 1. It further refers in this connection to the applicants’ property titles, which had been duly registered with the public registry (see Belova v. Russia, no. 33955/08, § 32, 15 September 2020; contrast Meladze v. Georgia (dec.), no. 30635/09, § 39, 2 October 2018). The Court therefore considers that the applicants had a “possession” within the meaning of Article 1 of Protocol No. 1.
52. The Court further notes that the property commission’s decisions revoking the applicants’ property rights amounted to an interference with their possessions within the meaning of Article 1 of Protocol No. 1 (see Belova, § 33, and Bogdel, § 55, both cited above; compare also Tchitchinadze v. Georgia, no. 18156/05, § 54, 27 May 2010). The Court will now assess whether that interference was prescribed by law, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim pursued (see the relevant general principles in paragraphs 47-50 above).
(ii) Whether the interference was “provided for by law” and whether it was in the public interest
53. The Court notes that the decisions revoking the applicants’ property rights were based on Article 60(1) §§ 1 and 3 of the GAC, which permitted, inter alia, a proprio motu review of a final decision in administrative proceedings (see the relevant provisions cited in paragraph 30 above). Noting that its power to review compliance with domestic law is limited (see Rysovskyy, cited above, § 72), the Court accepts that the proceedings in the applicants’ cases were reopened as a consequence of the alleged discovery of a mistake made by the property commission in their original assessment of the applicants’ eligibility for recognition of property rights (see Turex Ltd v. Georgia (dec.) [Committee], no. 22398/10, § 33, 26 February 2019).
54. As regards the aim of the interference, the Government put forward the following purposes: the correction of certain errors by the domestic administrative authorities; the prevention of an erroneous transfer of a plot of land from the State to private individuals; the protection of the State’s holding of agricultural land; and the promotion of good governance and of the rule of law. The Court is prepared to accept, in view of the arguments adduced by the Government, that the deprivation of the applicants’ property rights was “in the public interest” and served the legitimate aim of correcting a mistake by local administrative authorities (see Paplauskienė v. Lithuania, no. 31102/06, § 40, 14 October 2014; see also Turex Ltd, § 34; Moskal, § 61; and Pincová and Pinc, §§ 47-48, both cited above).
55. The Court thus concludes that the interference was provided for by law and was in the public interest.
(iii) Proportionality of the interference
56. It remains to be determined whether the interference was proportionate to the above-mentioned public interest and whether the applicants had to bear an excessive individual burden.
57. To start with, the Court cannot but note that the manner in which the public authorities treated the applicants’ cases was inconsistent and incoherent. In particular, while the property commissions revoked the applicants’ property rights on the basis of the alleged overlap of their plots of land with various so-called “protected zones” or with the property of others, the domestic courts, when approving the revocation decisions, simply concluded that the applicants had failed to substantiate their initial requests for the recognition of their property rights (see, for example, applications nos. 29385/11 and 19372/12). This reasoning by the domestic courts was clearly at variance with the relevant conclusions of the property commissions and also with the position of the public authorities in the course of the court proceedings. In view of these rather conflicting approaches, it is not entirely clear whether or not, along with the defects attributable to the relevant authorities, the applicants had failed to act with sufficient diligence in their initial requests for the recognition of their property rights.
58. Further, the domestic courts failed to adequately substantiate their findings in so far as they did not specify in what respect the initial requests of the applicants for the recognition of their property rights were unwarranted. In application no. 73699/13 the revocation of the decision to grant the ownership rights to the applicant was not based upon any new evidence but only upon a reassessment of the same evidence which was at the basis of the initial administrative decision recognising the applicant’s property rights (see paragraphs 24-28 above). Moreover, while the first‑instance court concluded that the recognition of the applicant’s title had been unlawful because the applicant had, under the sublease agreement, been in lawful possession of the plot concerned, the appeal court found, on the contrary, that the applicant had failed to show that he had held the plot in adverse possession (ibid.). In application no. 19372/12 the re‑examination of the applicant’s ownership rights was triggered by the post factum registration of a portion of the applicant’s plot in the name of a third party. Eventually, the appeal court simply concluded that the cadastral plan produced by the applicant had been flawed, while other documents had been missing. It should be noted that the applicant had also submitted a copy of a certificate issued by the public archive, but the domestic courts simply chose to ignore it.
59. The Court further notes that the applicants’ ownership rights were recognised by the property commissions created within the local self-government bodies specifically for the purpose of examining applications for recognition of ownership over land (see paragraph 5 above). The applicants’ ownership rights were further registered at the Public Registry. Thus, the procedures for recognition of ownership rights of the applicants were conducted by official bodies exercising the authority of the State and the applicants had very limited opportunities, if any, to influence the terms of the recognition, as this was within the State’s exclusive competence (compare Paplauskienė, § 45, and Arzamazova, § 51, and, mutatis mutandis, Gladysheva, § 79, all cited above). In this connection, the Court notes that, the Government did not argue that the applicants had acted in bad faith in their initial requests for the recognition of their property rights. According to the Government, the relevant public authorities simply made a mistake when recognising and registering the applicants’ ownership rights. However, as already noted above, mistakes or errors of the State authorities should serve to the benefit of the persons affected, and the risk of any mistake made by the State authorities must be borne by the State (see paragraph 49 above; see also Gashi v. Croatia, no. 32457/05, § 40, 13 December 2007; Arzamazova, cited above, § 51; and Tomina and Others v. Russia, nos. 20578/08 and 19 others, § 39, 1 December 2016). In this connection, the Court refers to Article 60(1) § 4 of the GAC, which explicitly provided that “rights-granting” delegated legislation could not be declared null and void if an interested party had a legitimate trust in such legislation, unless it substantially violated the legal rights or interests of a State, the public or others. The domestic courts did not enter into the merits of the above-mentioned provision (see, for example, application no. 29533/13) and declared “rights-granting” pieces of legislation null and void, without examining the issue of “legitimate trust”. This leads the Court to its last observation.
60. The applicants in the present cases were deprived of their title to property without compensation or any alternative form of reparation. The relevant procedure, however, enabling the State authorities to revoke property rights allegedly granted by mistake, explicitly envisaged a possibility of granting compensation or other types of reparation for any damage suffered (for Article 60(1) § 6 of the GAC see paragraph 30 above). In none of the cases at stake did the domestic courts engage in an assessment of the damage allegedly suffered by the applicants as a result of the revocation of their property rights and the need to provide any sort of reparation on that account (see Arzamazova, cited above, § 52; compare Bogdel, cited above, § 67). They did not consider any other possible solutions, such as identifying alternative plots of land or remeasuring and correcting plot boundaries. The Court notes that the plots of land in issue were initially granted to the applicants for no monetary consideration, a fact which in itself made their cases weaker. However, the absence of any reference to the issue of damage in the reasoning of the domestic courts in all four cases can scarcely stand the test of procedural fairness which is inherent in Article 1 of Protocol No. 1. The Court has previously held that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and that a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see paragraph 50 above; see also Paplauskienė, cited above, § 49, with further references).
61. The foregoing considerations are sufficient to enable the Court to conclude that there were serious shortcomings in the conduct of the domestic authorities and the courts with the result that the revocation of the applicants’ ownership rights, while pursuing a legitimate aim of general interest, had imposed an excessive individual burden on the applicants.
62. There has accordingly been a violation of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
63. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
1. The parties’ submissions
64. Starting with application no. 29385/11, the applicant claimed in her initial application form, without submitting any supporting documents, 250,000 euros (EUR) in compensation for the lost property and EUR 50,000 on account of the non-pecuniary damage. She did not make any claims for just satisfaction in her observations in reply to those of the Government.
65. In application no. 19372/12 the applicant claimed, without submitting any supporting evidence, EUR 150,000 on account of the pecuniary damage he had allegedly sustained as a result of the revocation of his ownership rights. In addition, he claimed EUR 4,000 per year in respect of the alleged loss of income. He did not claim any non-pecuniary damage.
66. In application no. 29533/13 the applicant requested the restoration of his ownership rights over the plot concerned, or in the alternative the payment of a compensation in the amount of 140,325 Georgian laris (GEL – approximately EUR 54,000). The applicant did not claim any non-pecuniary damage.
67. As regards application no. 73699/12, in his initial application the applicant claimed EUR 26,000 in respect of non-pecuniary damage. He did not make any claims on account of pecuniary damage. In his further submissions to the Court he simply referred to his initial claim, without providing any further details.
68. The Government maintained that the applications were inadmissible. In addition, they submitted, as far as applications nos. 29385/11 and 73699/13 were concerned, that the applicants failed to make any just satisfaction claims in accordance with Rule 60 of the Rules of Court. As to applications nos. 19372/12 and 29533/13, the Government contested the compensation claims, submitting that the requested amounts were unreasonable and unsubstantiated compared to the market value of the plots concerned. Also, the applicants failed to claim for any non-pecuniary damage.
2. The Court’s assessment
69. As to the applications nos. 29385/11 and 73699/13, the Court notes that under Rule 60 § 2 of the Rules of Court an applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant’s observations on the merits. If the applicant fails to comply with these requirements, the Court may reject the claim in whole or in part (Rule 60 § 3 and Rule 71). In its letters dated 2 December and 23 November 2016 respectively, the Court drew the applicants’ attention to the fact that these requirements applied even if they had indicated their wishes concerning just satisfaction at an earlier stage of the proceedings.
70. The Court notes in the two cases at issue that the applicants failed to submit and specify their just satisfaction claims within the time-limit fixed therefor. The Court therefore, having regard to Rule 60, makes no award under Article 41 of the Convention (see, for instance, Schatschaschwili v. Germany [GC], no. 9154/10, §§ 169-70, ECHR 2015).
71. In so far as applications nos. 19372/12 and 29533/13 are concerned, the Court notes that the applicants did not claim any award in respect of non-pecuniary damage. As to the pecuniary damage, the Court considers that, having regard to the grounds on which it found a violation of Article 1 of Protocol No. 1, particularly on account of the shortcomings identified in the relevant administrative and court proceedings, the Court is unable to assess the applicants’ claim for pecuniary damage. In this connection, it refers to the possibility available to all applicants to request reopening of the proceedings in accordance with Article 423 § 1 (g) of the Civil Procedure Code (see Khizanishvili and Kandelaki v. Georgia, no. 25601/12, § 63, 17 December 2019). The Court, hence, considers that a re-opening of the administrative proceedings and review of the matter in the light of the principles as identified in this judgment would be the most appropriate means of affording reparation to the applicants (see Bistrović, cited above, § 58; Vulakh and Others v. Russia, no. 33468/03, § 54, 10 January 2012; and Guţă Tudor Teodorescu v. Romania, no. 33751/05, § 57, 5 April 2016). Accordingly, the Court rejects the applicants’ claim in respect of pecuniary damage.
B. Costs and expenses
1. The parties’ submissions
72. In her initial application form (application no. 29385/11) the first applicant claimed, without submitting any financial or other evidence in support, EUR 10,000 on account of legal costs. The Government submitted, as already noted above, that this claim had not been submitted within the time-limit fixed therefor, and that, in any event, it was unsubstantiated.
73. In application no. 19372/12 the applicant did not claim the reimbursement of any costs and expenses.
74. In application no. 29533/13 the third applicant claimed the sum of GEL 1,732 (approximately EUR 650) on account of various administrative expenses, including translation and postal services he endured in connection with the proceedings before the national courts and the Court. In support, he submitted copies of relevant payment bills. The Government claimed, in reply, that a part of the costs was unreasonable.
75. In his initial application form (application no. 73699/13) the fourth applicant claimed the reimbursement of legal costs incurred in the course of the domestic proceedings in the amount of GEL 9,900, and before the Court in the amount of EUR 4,500. The Government reiterated its argument that the applicant had failed to submit his claim for legal costs in line with Rule 60 of the Rules of Court.
2. The Court’s assessment
76. Starting with applications nos. 29385/11 and 73699/13, as already concluded above, the applicants failed to submit their just satisfaction claims within the time-limit fixed therefor. The Court, accordingly, rejects their claims for costs and expenses.
77. In application no. 19372/12 the applicant did not request the reimbursement of any legal costs and expenses. As for application no. 29533/13, regard being had to the documents in its possession and the above criteria, the Court awards the applicant the entirety of the costs claimed, totalling EUR 650.
C. Default interest
78. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 1 of Protocol No. 1;
4. Holds
(a) that the respondent State is to pay the third applicant (application no. 29533/13), within three months, EUR 650 (six hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 25 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Ganna Yudkivska
Deputy Registrar President
__________
APPENDIX
List of cases:
| No. | Application no. | Case name | Lodged on | Applicant
Date of Birth Place of Residence Nationality |
Represented by |
| 1.
|
29385/11 | Eka Mikeladze v. Georgia | 28/04/2011 | Eka MIKELADZE
22/08/1979 Mtsvane kontskhi Georgian |
|
| 2. | 19372/12 | Jintcharadze v. Georgia | 13/03/2012 | Nukri JINTCHARADZE
15/06/1981 Mtsvane Kontskhi Georgian |
Davit JAPARIDZE |
| 3. | 29533/13 | Tavdgiridze v. Georgia | 19/04/2013 | Tamazi TAVDGIRIDZE
05/01/1970 Kobuleti Georgian |
Teimuraz KATAMADZE |
| 4. | 73699/13 | Ananidze v. Georgia | 25/09/2013 | Shalva ANANIDZE
01/01/1953 Batumi Georgian |
Said SHANTADZE |
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