Last Updated on December 14, 2023 by LawEuro
European Court of Human Rights (Application no. 12549/11)
In 2007 reforms were introduced concerning privatisation of land in Georgia. On 11 July of that same year, Parliament passed the Law on the recognition of property rights to plots of land possessed (used) by natural and legal persons (“the Recognition Act”). The Recognition Act 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 no. 525 of the President 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 were established within local self-government bodies, tasked with the examination of applications from natural and legal persons for recognition of ownership over land.
The Government submitted that, having been unsuccessful in the administrative proceedings, the applicants should have initiated compensation proceedings with a view to claiming compensation for damage inflicted by the administrative authorities. In their letter of 26 October 2021, they added that the applicants had at their disposal another effective remedy in the form of administrative proceedings, which they had not availed themselves of. The applicants argued that they had exhausted all remedies available to them and 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 European Court of Human Rights has examined and dismissed similar objections lodged by the Government in previous cases. Finding no reason to depart from that approach in the present case, the Court dismisses the Government’s plea of non-exhaustion. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
It is common ground between the parties that there has been an interference with the applicants’ possessions within the meaning of Article 1 of Protocol No. 1 on account of the property commission’s decisions revoking their property rights. The applicable general principles have been summarised in Vistiņš and Perepjolkins v. Latvia; Hutten-Czapska v. Poland; Rysovskyy v. Ukraine; and Beyeler v. Italy.
It is not in dispute that the decisions revoking the applicants’ property rights were based on Article 60(1) §§ 1 and 3 of the General Administrative Code, which permitted a proprio motu review of a final decision in administrative proceedings. The Court accepts that the proceedings in the applicants’ cases were reopened as a consequence of the alleged discovery of mistakes made by the property commission in its original assessment of the applicants’ eligibility for recognition of property rights. It further accepts 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.
The applicants argued that the interference had not been proportionate to the public interest pursued and that the manner in which their property rights had been revoked had put an excessive individual burden on them.
The Court notes that the manner in which the public authorities treated the applicants’ cases was inconsistent and incoherent. In particular, while the property commission revoked the first applicant’s property rights on the basis that the plot concerned was not agricultural per se and that he could not have used it for agricultural purposes, the domestic courts, when approving the revocation decision, simply concluded, without determining the nature of the plot in question, that the first applicant had failed to substantiate his initial request for the recognition of his property rights. The revocation of the decision to grant the ownership rights to the first applicant was not based upon any new evidence but upon a reassessment of the same evidence which was the basis for the initial decision recognising his rights. As far as the second applicant is concerned, while the property commission revoked his title because one part of the plot concerned overlapped with a plot of land owned by a third party, the domestic courts primarily based their decisions on the contention that the second applicant had submitted a flawed cadastral plan. Moreover, his title over the other part of the plot, which was not disputed by a third party, was also revoked for no good reason and the domestic courts did not examine the second applicant’s submission to that effect on the merits. The Court finds that the reasoning of the domestic courts was clearly at variance with the relevant conclusions of the property commission 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, in addition to the defects attributable to the relevant authorities, the applicants had themselves failed to act with sufficient diligence in their initial requests for the recognition of their property rights.
The Court further notes that the applicants’ ownership rights were recognised by the property commission created within the local self‑government body specifically for the purpose of examining applications for recognition of ownership over land. The applicants’ ownership rights were further registered at the Public Registry. Thus, the procedures for recognition of the applicants’ ownership rights were conducted by official bodies exercising State authority and the applicants had very limited opportunity, if any, to influence the terms of the recognition, as this was within the State’s exclusive competence. 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, 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.
In this connection, the Court refers to Article 60(1) § 4 of the General Administrative Code, which explicitly provided that “rights-granting” delegated legislation could not be declared null and void if an interested party had 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 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.
The applicants in the present case 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 the possibility of granting compensation or other types of reparation for any damage suffered. In neither of the cases 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 reparation on that account. 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 the two 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.
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 in the general interest, imposed an excessive individual burden on the applicants. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
CASE OF KHUNDADZEEBI v. GEORGIA (European Court of Human Rights) 12549/11. Full text of the document.
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