Last Updated on May 19, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 30635/09
Badri MELADZE
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 2 October 2018 as a Committee composed of:
Síofra O’Leary, President,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 8 May 2009,
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
1. The applicant, Mr Badri Meladze, is a Georgian national, who was born in 1970 and lives in Tbilisi. He was represented before the Court by Mr I. Khatiashvili, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Demolition of a house
4. The applicant’s parents started using a State-owned plot of land, which measured 961square metres and was situated in an uninhabited area on the left bank of the Vere river valley in the centre of Tbilisi (hereafter referred to as “the smaller Vere land”), in an arbitrary manner, without soliciting permission from public authorities, in 1976. Thus, without paying any taxes or other fees for or otherwise declaring the use of the land in question, they installed and planted various fixtures, fruit trees and vines there.
5. The smaller Vere land uninterruptedly remained State property until its cessation to a third party in 2008 (see paragraphs 9 and 11 below).
6. In the late 1980s, the applicant built a two-storey house on the smaller Vere land, without registering his title to that newly registered house. Similarly to his parents, he never paid any taxes or fees either in connection with the squatted land or the newly constructed house nor made any other attempts to legalise or, at least, declare officially the de facto use of the land and building.
7. On 10 December 2006 the Tbilisi municipality, after having conducted negotiations lasting several months with the applicant aimed at claiming the smaller Vere land back from the latter’s unlawful occupation, demolished the applicant’s house and its contents.
8. According to the case file, the applicant ceased occupation and use of the smaller Vere land after the demolition of his house. He never attempted either to sue the Tbilisi municipality for the destruction of the house and its content or to file a criminal complaint in that respect, or to otherwise challenge the incident before any of the authorities.
2. Change of ownership over the smaller Vere land
9. By an agreement of 29 January 2008, the Tbilisi municipality sold a plot of public land measuring 2,672 square metres, situated on the left bank of the river Vere (hereafter referred to as “the larger Vere land”), to a private company (“the private company”). The smaller Vere land, which the applicant had been occupying until the demolition of his house on 10 December 2006 (see paragraph 7 above), formed an integral part of that newly privatised larger plot.
10. As confirmed by the relevant cadastral maps of Tbilisi, the larger Vere land formed part of a protected area of the left bank of the Vere river valley, the so-called “recreation zone” of the capital city. That special status had been granted to the area in July 2005.
11. The privatisation agreement of 29 January 2008 was based on a resolution of the Tbilisi municipality dated 19 November 2007 as well as ordinances of the Government of Georgia and of the President of Georgia dated, respectively, 28 and 31 December 2007 (“the underlying pieces of delegated legislation”) and reflected all the conditions set out by those by‑laws. One of those conditions, which related to the special status of the larger Vere land in question, was that, in exchange for the privatisation of the above-mentioned area, the private company, in addition to paying a price for the acquired land, also undertook to build an aquatic park for sport and recreation purposes and to plant greenery there.
3. Administrative proceedings initiated by the applicant in relation to the smaller Vere land
12. On 11 July 2007 an Act on Legalisation of Property Titles of Occupants of Public Land entered into force (hereinafter referred to as “the Squatters’ Rights Act”). That Act entitled, subject to a number of qualifying conditions, individuals who had been occupying State-owned plots of land either in good faith or arbitrarily to have those plots, including any improvements thereon, formally registered as their property (for more details, see paragraphs 24-29 below). To do so, individuals had to submit applications to a State Commission established for that purpose by the Squatters’ Rights Act (“the Commission”).
13. As acknowledged by the applicant himself, the Commission became fully operational and started examining individual applications in September 2007.
14. On 17 March 2008 the applicant lodged his application with the Commission, requesting a property title over the smaller Vere land, pursuant to the Squatters’ Rights Act. On an unspecified date the Commission rejected his application. The case file does not contain a copy of that decision, and the reasons for the Commission’s refusal thus remain unknown. It is, however, confirmed by the materials available in the case file that the applicant did not challenge the Commission’s decision before a court (see paragraph 29 below).
4. Judicial proceedings initiated by the applicant in relation to the smaller Vere land
15. On 10 April 2008 the applicant brought court proceedings, requesting, under Article 60 of the General Administrative Code (“the GAC”) and Article 25 of the Code of Administrative Procedure (“the CAP”), that the privatisation agreement of 29 January 2008 and, most importantly, the underlying pieces of delegated legislation be declared void ab initio, or unenforceable, in so far as the smaller Vere land was concerned (see paragraph 9 above). He complained that the contested pieces of delegated legislation had been issued in breach of a number of provisions of the GAC. In particular, he claimed that the privatisation proceedings had not been sufficiently public and he had not been invited to take part in them as a concerned party. The applicant also complained that, by selling the smaller Vere land to the private company, the State had undermined his legitimate expectation to become the owner of that land under the Squatters’ Rights Act.
16. On 17 July 2008 the Tbilisi City Court, without entering into the merits of the dispute, ruled to discontinue examination of the applicant’s action for its incompatibility with the procedural requirements. Notably, the court stated that he did not have standing to request declaration of the underlying pieces of delegated legislation as void ab initio, or unenforceable, under Article 25 of the CAP, since the very subject matter of the case clearly suggested that the question of nullity of the impugned by-laws was an arguable issue. Consequently, the applicant should rather have lodged a request for quashing the disputed pieces of the delegated legislation as invalid under Article 22 of the CAP (see paragraphs 18 and 19 below). The City Court further stated that, as the State had already sold the land in question to the private company by the time the applicant lodged his action, he could no longer be considered to be “a concerned party” under the Squatters’ Rights Act. The Squatters’ Rights Act clearly not applying to his individual situation, the applicant could not claim any legitimate interest in challenging the disputed pieces of the delegated legislation as void ab initio, within the meaning of Article 25 of the CAP.
17. On 21 July 2008 the applicant lodged an interlocutory complaint against the ruling of 17 July 2008. On 10 November 2008 the Tbilisi Court of Appeal rejected it, confirming the validity of the reasons for which the lower instance had left the applicant’s action without examination.
B. Relevant domestic law
1. The Code of Administrative Procedure (“the CAP”)
18. Under Article 22 §§ 1-3 of the CAP, an individual was entitled to challenge the validity of a piece of delegated legislation (by-law) in a court, if that legal act caused direct prejudice to the individual’s rights or legitimate interests. The statutory time-limit for bringing such a court action was one month, and that period was to be calculated from the moment the claimant had first learnt of the existence of the by-law in question.
19. Pursuant to Article 25 § 1 of the CAP, an action could be filed with a court for the declaration of a piece of delegated legislation as void ab initio (or unenforceable), providing that the claimant can prove “the existence of a legitimate interest” for pursuing such an action. Paragraph 2 of Article 25specified that it was forbidden to resort to the procedural remedy mentioned in the first paragraph of the provision if the disputed matter fell more to be examined under Article 22 of the CAP.
20. As to what constituted the grounds for validly challenging a piece of delegated legislation as void ab initio under Article 25 § 1 of the CAP, Article 60 of the GAC provided for the exhaustive list of such grounds (see the subsequent paragraph).
2. The General Administrative Code (“the GAC”)
21. The relevant provisions of the GAC, as they stood at the material time, read as follows:
Article 60: Delegated legislation void ab initio
“1. A piece of delegated legislation act is considered to be void ab initio if:
(a) It is impossible to identify the issuing public authority;
(b) The act was issued by an unauthorised public agency or public official;
(c) It cannot be executed for factual reasons;
(d) Its execution will result in a criminal or administrative offence.
2. The statute of limitations prescribed by the Code does not apply to [such] by‑laws. It is obligatory for the issuing public authority to declare the legal act void ab initio either based on its own initiative or the request of a concerned party.”
22. Chapter XIV (“liability of a public authority”) of the GAC, in so far as relevant, provided as follows:
Article 207: Application of the Civil Code of Georgia to proceedings concerning damage inflicted by a public authority
“Unless otherwise specified by this Code, damage inflicted by a public authority shall be compensated in accordance with the rules prescribed by the Civil Code of Georgia.”
3. The Civil Code
23. Articles 992-1008 of the Civil Code contained the rules on liability for civil wrongs, so-called tort law. 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 by intentional or negligent actions on the part of their officials which amounted to an abuse of power.
4. The Squatters’ Rights Act
24. Section 1 of the Squatters’ Rights Act stated that the main objective pursued by the legislator when enacting that piece of legislation was to foster a better utilisation of the otherwise uninhabited State-owned land across the country (see also paragraph 12 above).
25. Sections 1, 2 and 4 of the Act specified that individuals who had been using plots of public (State-owned) land either in good faith or arbitrarily were entitled to seek, subject to a number of qualifying conditions, for ownership over such plots by submitting applications to the relevant Commission (see also paragraph 13 above).
26. Section 2 (c) specified two major qualifying conditions with respect to (adverse) possession: an individual was entitled to request ownership over a plot of land only if, firstly, it could be proven that his/her occupation of that land had lasted until 1 January 2007 and, secondly, the land in question still represented State property at the time of the submission of the relevant application to the Commission.
27. Section 3 (2) listed the categories of the State-owned land that could not be privatised under the Act. Amongst other exceptions, the provision stated that individuals were not entitled to request ownership over public land which formed part of the various protected areas, including recreation areas.
28. Section 5 (7) of the Act stated that if an individual’s application for obtaining property title over the State-owned land did not meet the various qualifying requirements under the Act, the Commission would reject such an application by a written and reasoned decision.
29. Pursuant to Section 10 of Decree no. 525 issued by the President of Georgia on 15 September 2007 for the purposes of implementation of the Squatters’ Rights Act, it was possible to appeal the Commission’s decision on rejection of an individual application for a property title.
COMPLAINTS
30. The applicant mainly complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the outcome of the judicial proceedings initiated on 10 April 2008 and the resulting inability to become the owner of the smaller Vere land under the Squatters’ Rights Act.
31. He also complained under Article 8 of the Convention and the above-mentioned provision of Protocol No. 1 about the demolition of his house on 10 December 2006, which had been conducted by the Tbilisi municipality in an abusive manner, without any court order, and the loss of his household belongings.
THE LAW
32. The applicant mostly complained about the domestic authorities’ refusal to grant him ownership over the smaller Vere land under the Squatters’ Rights Act and the outcome of the judicial proceedings initiated on 10 December 2008. He further challenged the demolition of his house and the loss of his belongings during the incident of 10 December 2006. Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 to the Convention were cited, and these provisions read, in their relevant parts, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
Article 8 § 1
“Everyone has the right to respect for his private and family life, his home and his correspondence.” (…)
Article 1 of Protocol No. 1
“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.” (…)
A. As regards the complaint under Article 1 of Protocol No. 1concerning the land ownership
1. The parties’ submissions
33. The Government submitted that the applicant’s complaint under Article 1 of Protocol No. 1 was incompatible ratione materiae because the smaller Vere land had never constituted his possession. On the contrary, at all relevant times the land in question had been owned exclusively by the State. Nor could the applicant validly claim to have a “legitimate expectation” to obtain property title over the land under the Squatters’ Rights Act because he had not satisfied any of the major qualifying conditions under the latter law. Notably, not only had the smaller Vere land formed part of the protected area but, what is more, at the time the applicant had filed an application for obtaining the title over the plot of land in question, it had ceased to represent State property. Those facts clearly disqualified the applicant from the scope of Squatters’ Rights Act (see paragraphs 26 and 27 above).
34. In reply, the applicant maintained his complaint, arguing that, by not granting him property title over the smaller Vere land, the State had undermined his property rights, in breach of Article 1 of Protocol No. 1.
2. The Court’s assessment
35. The Court observes that the crux of the applicant’s complaint under Article 1 of Protocol No. 1 is the relevant domestic authority’s refusal to grant him ownership over the smaller Vere land in accordance with the Squatters’ Rights Act. However, whilst the domestic authority in question, which rejected the applicant’s real property claim, was the Commission, the applicant did not, according to the available case materials, resort to the clearly available remedy of challenging the Commission’s decision before a domestic court. He did not even submit a copy of that decision for the consideration of the Court (see paragraphs 14 and 29 above). Rather than appealing against the Commission’s decision to a court, the applicant chose to prove, by initiating the judicial proceedings on 10 December 2008 under Article 25 of the CAP, that the relevant pieces of delegated legislation, whereby the State had ceded the land in question to the third party, were void ab initio, within the meaning of Article 60 of the GAC. The Court has doubts about the appropriateness of that alternative course of judicial action, which goes against the domestic lex specialis on the appellate procedure (see Section 10 of the Presidential Decree, cited in paragraph 29 above), for the purposes of the applicant’s above-mentioned complaint under Article 1of Protocol No. 1.
36. What is more, even that alternative course of judicial action did not result in an examination of the applicant’s claim on the merits, given that the judicial path he had chosen proved to be procedurally defective from the very outset. Thus, the domestic courts clearly advised him that, since the contested legal acts did not fall within the scope of Article 60 of the GAC, the provision which provided for the exhaustive list of ab initio void or unenforceable by-laws, he should have requested the invalidation of the arguably unlawful pieces of delegated legislation under Article 22 of the CAP (see paragraph 16 above). It is unclear why the applicant did not follow the domestic courts’ advice. In that respect, it should be noted that, in general, the absence of examination of a property dispute on the merits at the domestic level, caused by the applicant’s omission to comply with the relevant procedural rules, normally renders a subsequent complaint about the same dispute made before the Court under Article 1 of Protocol No. 1 inadmissible for non-exhaustion of domestic remedies, within the meaning of Article 35 § 1 of the Convention (compare, for instance and as a recent authority, with Krpić v. Croatia (dec.), no. 75012/12, §§ 57-60, 31 May 2016).
37. Even assuming, especially since the Government themselves have not raised an objection in that regard, that the applicant has exhausted the relevant domestic remedies by initiating the judicial proceedings on 10 December 2008, his complaint under Article 1 of Protocol No. 1 is in any event inadmissible for the following reasons.
38. The Court reiterates that Article 1 of Protocol No. 1 protects “possessions”, which can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007‑III, and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX). Where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007‑I). No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký, cited above, § 50).Where there is a dispute as to whether an applicant has a property interest which is eligible for protection under Article 1 of Protocol No. 1, the Court is required to determine the legal position of the applicant (see Beyeler v. Italy [GC], no. 3202/96, § 99, ECHR 2000‑I).
39. The Court observes that the applicant did not have any title over the smaller Vere land which had, on the contrary, always been, until sold to a third party on 29 January 2008, owned by the State. In these circumstances, it is obvious that the present case does not concern an “existing possession” of the applicant. The latter was not a possessor but a claimant pleading a proprietary interest (see, for instance, Ipseftel v. Turkey (dec.) [Committee], nos. 20462/04 and 21405/04, § 30, 25 April 2017).
40. It remains to be established whether the applicant had a legitimate expectation of obtaining effective enjoyment of a property title over the land in question. In this respect, the only question to be addressed in the circumstances of the present case is whether the applicant’s expectation was based on a reasonably justified reliance on the Squatters’ Rights Act (compare, for instance, with Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 51, Series A no. 222). The Court observes that the applicant’s situation did not appear to satisfy a number of major qualifying statutory requirements and, in any event, as indicated previously, he did not challenge the Commission’s decision in that regard (see paragraph 14 above). Thus, the Court notes that, amongst other statutory incompatibilities, Section 2(c) of the Squatters’ Rights Act emphasised that an individual was entitled to claim a plot of land only if the latter still represented State property at the time of the submission of the relevant application with the Commission. However, by the time the applicant officially expressed his claim over the smaller Vere land for the first time on 17 March 2008, the latter had already been ceded by the State to the third party on the basis of the privatisation agreement of 29 January 2008 (compare with the notion of “a conditional claim” elaborated by the Court in Kopecký, cited above, §§ 57 and 68). It is of further importance that the latter incompatibility of the applicant’s individual situation with the scope of the Squatters’ Rights Act was also confirmed, even if indirectly, by the domestic courts (see paragraph 16 above). The Court finds no appearance of arbitrariness or unreasonableness in the way in which the domestic courts reached the above conclusion (see Kopecký, cited above, § 56, see also Bici v. Albania, no. 5250/07, § 51, 3 December 2015).
41. In the light of the foregoing, the Court considers that the applicant cannot claim, on the basis of the Squatters’ Rights Act, to possess a sufficiently established proprietary interest to which a “legitimate expectation” could be attached (compare, amongst many others, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 72, ECHR 2002‑VII; Bergsson and Others v. Iceland (dec.), no. 46461/06, 23 September 2008, and also Usta v. Turkey (dec.), no. 32212/11, §§ 40 and 41, 27 November 2012). In other words, the applicant’s claim did not have sufficient basis in domestic law but rather reflected his hope to acquire ownership of the land in question by application of the Squatters’ Rights Act. However, a mere hope that the national authorities will decide in an applicant’s favour cannot be regarded as a form of legitimate expectation for the purposes of Article 1 of Protocol No. 1 (see Gratzinger and Gratzingerova, cited above, § 53; Kopecký, cited above, §§ 52 and 58, and Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfı v. Turkey (dec.), no. 22522/03, 9 December 2008).
42. In the light of the foregoing, the Court concludes that the applicant had neither an “existing possession” nor a “legitimate expectation” of obtaining effective enjoyment of a property right within the meaning of Article 1 of Protocol No. 1 to the Convention. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. As regards the remaining complaints
43. The applicant complained under Article 6 § 1 of the Convention about the outcome of the judicial proceedings initiated on 10 December 2008, challenging the domestic courts’ findings of fact and law. However, a complaint formulated in such a way under the above-mentioned provision is unmistakeably of a “fourth instance” nature (see, amongst many others, FC Mretebi v. Georgia, no. 38736/04, § 31, 31 July 2007). Furthermore, the relevant domestic decisions do not disclose any arbitrary reasoning (contrast with Donadze v. Georgia, no. 74644/01, § 32, 7 March 2006).
44. It follows that the applicant’s complaint under Article 6 § 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
45. The applicant further complained, under Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention, that the demolition of his house and its content by the municipal authority was an abuse of power which had caused him pecuniary damage.
46. The Court reiterates that, under Georgian law, whenever a wrong is inflicted by a public authority, the applicant is expected to file an action for damages. Since the applicant imputed the loss of his house and of the household belongings to the wrongful act of the Tbilisi municipality (see paragraph 31 above), he should have sued the municipal authority under the tort provisions of the Civil Code, in particular under Articles 992 and 1005, read in conjunction with Article 207 of the GAC (see paragraphs 22 and 23 above, and compare with Saghinadze and Others v. Georgia, no. 18768/05, § 95, 27 May 2010; Identoba and Others v. Georgia, no. 73235/12, § 104, 12 May 2015, and also, for instance, with Lazariu v. Romania, no. 31973/03, § 88, 13 November 2014).
47. Since such a clear and available remedy was never pursued at the domestic level (see paragraph 8 above), it follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 25 October 2018.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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