Communicated on 24 February 2016

FOURTH SECTION

Application no. 19372/12 Nukri JINTCHARADZE against Georgia lodged on 13 March 2012

STATEMENT OF FACTS

1. The applicant, Mr Nukri Jintcharadze , is a Georgian national, who was born in 1981 and lives in the Village of Mtsvane Kontskhi ( Khelvachauri district). He is represented before the Court by Mr Sh. Ochkhikidze , a lawyer practising in Tbilisi.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background information

3. In 2007 a major reform began concerning land privatisation in Georgia. On 11 July 2007 the Parliament of Georgia adopted a Law on Recognition of Property Rights to Plots of Land Possessed (Used) by Physical and Legal Persons (“the Recognition Act of 2007”). The purpose of the Recognition Act was to establish a procedure for formal recognition of ownership rights in respect of land. It envisaged three possibilities for legalising ownership rights over land: lawful land ownership, lawful land use, and arbitrary occupation of the land. Practical implementation of this Act was facilitated by the Order of the President No. 525 “On the Rule of Recognition of Property Rights over Land in Possession (Use) by physical and legal persons and Approval of the Form of Certificate on Ownership Rights” issued on 15 September 2007. According to the Presidential Order Property Recognition Commissions were established at local self ‑ government bodies and were tasked with the examination of ownership recognition applications from physical and legal persons.

2. The revocation proceedings concerning the applicant

4. On 19 December 2007 the Property Recognition Commission at the Municipality of Khelvachauri , acting at the request of the applicant, recognised his ownership right to the plot measuring 3620 sq. m. in the village of Mtsvane Kotskhi . The applicant was accordingly provided with an ownership certificate on the basis of which he registered with the Public Registry the plot concerned in his name.

5. On 27 June 2008 the same Property Recognition Commission overturned its previous decision revoking the title of the applicant. After one remittal, on 17 December 2010 the Khelvachauri District Court confirmed the revocation of the applicant ’ s property title. It concluded that the applicant had failed to show that he had indeed been in possession of the plot in question or unlawfully occupied it. The court also observed that the plot concerned was part of a resort zone.

6. That decision was upheld on appeal by the Kutaisi Court of Appeal on 2 March 2011. On 14 September 2011 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible.

B. Relevant domestic law

1. The Constitution of Georgia

7. Article 21 of the Constitution of Georgia recognised the inviolability of the right to own and inherit property. Paragraph 2 of the Article states that the right to property may be restricted for pressing social needs in cases determined and in accordance with the procedure prescribed by law. Paragraph 3 further provides that:

“Deprivation of property for pressing social needs shall be permissible in circumstances expressly determined by law, on the basis of a court decision or in urgent cases provided for by an organic law, provided that prior, full and fair compensation is made. The compensation shall be exempted from any taxes and fees.”

2. The Law on Recognition of Property Rights to Plots of Land in Possession (Use) by Physical and Legal Persons (Recognition Act of 2007)

8. According to Article 1 of the Recognition Act the purpose of the law is to recognise property rights to State-owned plots of land in lawful possession (use) or arbitrarily occupied by physical or legal persons. The most relevant provisions of the Recognition Act, as in force at the material time, read as follows:

Article 2 - Definition of terms

“ The terms used in this Law shall have the following meaning:

a) lawfully possessed land - a S tate-owned agricultural or non-agricultural plot of land with or without buildings (built, under construction, or destroyed) for which a physical person has acquired the right of lawful possession before the entry into force of this Law;

b) used land – a State-owned non-agricultural plot of land with or without buildings (built, under construction, or destroyed), with respect to which a physical or legal person, or any other organisational structure provided for by law has acquired the right of use before 12 November 1998 ...

c) arbitrarily occupied land – a State-owned agricultural or non-agricultural plot of land with or without buildings (built, under construction or destroyed), which was arbitrarily occupied by a physical or legal person ... before the entry into force of this Law, and which at the time a request was made for the recognition of ownership rights has not been disposed of by the State ...”

Article 3 – Scope of the Law

“... 2. No property rights shall be recognised with respect to the following State-owned agricultural or non-agricultural plots of land:

a) cattle/animal transportation routes ...

c) protected territory

d) recreation parks, forest-parks, public squares and other

e) historical, cultural, natural or worship-religious monuments

f) plots of land for public use (square, street, passage, road, pavement, embankment) and recreational places (park, woodland park, public garden, alley, protected territory) ...”

Article 4 – The body competent to recognise property rights

“1. The authority to recognise property rights with respect to lawfully possessed or used as well as arbitrarily occupied plots of land falls within the competence of the relevant representative body of local self-government; the competence is exercised via a commission. The commission exercises its functions in line with the formal administrative procedure provided for in Chapter VII of the General Administrative Code and in accordance with the current Law ...”

Article 5 – The Rule on recognition of ownership rights with respect to lawfully possessed or used as well as arbitrarily occupied land

“1. A written application must be submitted to the commission by an interested party as a basis for examination of a request for the recognition of property rights with respect to lawfully possessed or used as well as arbitrarily occupied land.

2. While examining a request for the recognition of property rights with respect to the arbitrarily occupied land, its conformity with the conditions of area-territorial planning and strategic plan for land distribution shall be assessed.

3. The interested party shall submit in support of his or her request for the recognition of property rights with respect to lawfully possessed or used as well as arbitrarily occupied plot of land the following:

a) a document proving the lawful possession, usage or arbitrary occupation of the land or a witness statement thereto;

b) a cadastral plan of the plot of land;

c) information relevant to the establishment of the cost of the recognition of property rights;

e) copies of the identification documents of the interested party ...

5. If a request by an interested party for the recognition of property rights with respect to lawfully possessed land meets in its entirety or partially the conditions of the present law, the commission ... will take a decision on the recognition of property rights in respect of the lawfully possessed land in full or in part, and will issue a property rights certificate and a certified cadastral plan ...

6. If a request by an interested party for the recognition of property rights to a plot of land in use or arbitrarily occupied meets in full or in part the conditions of the present law, the commission shall send to the interested party written notification concerning the cost of the recognition ... If the interested party pays the cost of the recognition of property rights ... the commission will take a decision recognising the property right in full or in part and will issue a property rights certificate and a certified cadastral plan ...

7. If the request of an interested party for the recognition of the right to property does not meet the conditions provided for by this law, or if the documents in support of the application fail to prove the fact of lawful possession, use or arbitrary occupation ... the commission will take a written decision rejecting the recognition of property rights.

3. Order of the President No. 525 “On the Rule of Recognition of Property Rights over Land in Possession (Use) by physical and legal persons and Approval of the Form of Certificate on Ownership Rights”.

9. The Presidential Order which was adopted on 15 September 2007 details the procedure and conditions for the recognition of ownership rights in respect of State-owned agricultural and non-agricultural land. It provides for the composition and authority of property recognition commissions, lists the documents which should be submitted in support of the recognition requests, provides for the relevant deadlines, and so on.

4. Annual Report by the Public Defender of Georgia

10. The relevant parts of the 2011 Annual Report by the Public Defender of Georgia state the following:

“ Recognition of Property Rights

... Throughout the 2011 reporting period, the Public Defender of Georgia has observed a number of cases where bodies authorised to recognise property rights overturned the decisions taken in respect of the recognition of the right of ownership of a State-owned arbitrarily occupied plot of land, neglecting the requirements established by law, and unjustifiably refusing to recognise the right to property ...

The unlawful revocation of decisions regarding the recognition of property rights

During the 2011 reporting period, the Public Defender of Georgia has established cases of violation of property rights of 271 citizens by the Commission for the Recognition of Property Rights at the Khelvachauri Municipal Assembly ( Sakrebulo ).”

COMPLAINT

11. The applicant claims in substance that the r evocation of his property rights was in breach of Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. H as there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the m eaning of Article 1 of Protocol No. 1? In particular, has the applicant been deprived of his plot of land in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?

2. Was the deprivation necessary in a democratic society? In particular, given that the applicant had no compensation for the land at issue, did the deprivation impose on him an excessive individual burden (see, for example, Rysovskyy v. Ukraine , no. 29979/04 , §§ 69-71, 20 October 2011) ?