Communicated on 11 January 2016

FOURTH SECTION

Application no. 7220/11 Zurab AVALIANI against Georgia and 5 other applications (see list appended)

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix.

A. The circumstances of the case

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

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

1. Avaliani v. Georgia, application no. 7220/11

4. According to the applicant his grandfather occupied a plot of land measuring 2448 sq. m in the village of Mejinisckali (Khelvachauri district) some sixty years ago. Subsequently, his father built a house there and started cultivating the land. The applicant lived in this house with his parents.

5. On 16 January 2008 the applicant applied to the Property Recognition Commission for recognition of his ownership right to the plot. On 27 February 2008 the head of the Property Recognition Commission informed the applicant that, after studying his request and the supporting documents, the Commission confirmed his ownership right. On 31 March 2008 the applicant was provided with a property certificate, on the basis of which the Public Registry registered the plot concerned in the applicant ’ s name on 21 April 2008.

6. In the meantime the Municipality of Khelvachauri designated certain areas within its sphere of responsibility as forming part of an industrial zone.

7. On 24 October 2008 the Property Recognition Commission decided to review the lawfulness of its own decisions taken on the basis of the Recognition Act. The parties concerned were notified about the initiation of the review proceedings via a newspaper publication of 21 November 2008.

8. On 23 January 2009 the Property Recognition Commission overturned its own decision recognising the applicant ’ s property title. The Commission concluded that the applicant had failed to show that the plot in question had indeed been in his lawful possession or unlawfully occupied by him. The Commission also observed that the plot concerned was part of the designated zone of potential urban development.

9. The applicant appealed against the Commission ’ s decision. On 11 September 2009 the Khelvachauri District Court dismissed the applicant ’ s appeal. The court concluded that the applicant had failed to show that he had indeed unlawfully occupied the relevant plot of land. It also observed that the territory of that village, according to the decision of the Khelvachauri municipality, formed part of a zone of potential urban development. The decision was upheld on appeal by the Tbilisi Court of Appeal, albeit on a different ground. Notably, the latter concluded that the applicant had failed to submit in support of his request for ownership recognition a document showing lawful possession of the plot concerned.

10. The applicant appealed on points of law. He also requested a deferral of the payment of court fees for one year, owing to his lack of financial means. On 10 May 2010 the Supreme Court of Georgia, while ignoring the applicant ’ s request for the deferral, ruled that the applicant should not be exempted from paying the court fees. The cassation court granted the applicant five additional days for the payment of the fees, which the applicant failed to do.

11. On 5 July 2010 the Supreme Court of Georgia decided to leave the applicant ’ s appeal unexamined.

2. Khundadze v. Georgia, application no. 12549/11

12. The applicants in the current case are two brothers.

(a) The revocation proceedings concerning Gocha Khundadze

13. The applicant, Gocha Khundadze, had been occupying a State ‑ owned plot of land measuring 2 868 sq. m in the village of Gantiadi (Khelvachauri District) under a lease agreement since 2001. Following the termination of the lease agreement in 2004 he continued to possess and cultivate the plot and was paying all related taxes. It appears from the case file that he also built a house there, in which he lived with his family.

14. On 2 April 2008 the Property Recognition Commission, acting at the request of the applicant, recognised his ownership rights to the plot concerned. On 8 April 2008 the applicant was provided with an ownership certificate on the basis of which he registered with the Public Registry the plot concerned in his name.

15. On 12 December 2008 the Property Recognition Commission began a review on its own initiative of the lawfulness of its previous decision concerning recognition of the property rights of the applicant. The latter was not informed about the initiation of the relevant administrative proceedings.

16. On 15 May 2009 the Commission overturned its previous decision revoking the title of the applicant. That decision was confirmed by the Khelvachauri District Court on 26 October 2009. The latter concluded that the Commission ’ s initial examination of the applicant ’ s request was superficial and that the applicant had failed to show that he had indeed been unlawfully occupying the plot in question.

17. The applicant appealed. He claimed that on the basis of the 2 April 2008 decision of the Property Recognition Commission he had been registered as the owner of the plot by the Public Registry, and accordingly the Commission was not entitled to revoke his recognised property title. He also maintained that if he had failed to submit all the required documents in support of his request, the Commission should have refused his request in the first place.

18. On 30 March 2010 the Kutaisi Court of Appeal rejected the applicant ’ s appeal. By a decision of 13 September 2010 the Supreme Court of Georgia dismissed an appeal by the applicant on points of law as inadmissible.

(b) The revocation proceedings concerning Jumber Khundadze

19. The applicant, Jumber Khundadze, had been o ccupying and cultivating 2712 sq. m of State-owned agricultural land in the village of Gantiadi (Khelvach auri District) since 2001. On 2 April 2008 the Commission recognised the applicant ’ s ownership rights and provided him with the relevant property certificate.

20. On 12 December 2008 the Property Recognition Commission overturned its previous decision revoking the applicant ’ s owner ship title. It concluded that 1 267 sq. m of the plot that had been allocated to the applicant overlapped with another plot of land owned by a third person. The Commission also noted that the applicant had failed during the examination of his initial recognition request to submit the required cadastral plan; hence his property certificate had to be revoked.

21. The applicant complained. On 8 September 2009 the Khelvachauri District Court upheld the revocation decision. It observed that at the time of making the recognition request the applicant had failed to submit a cadastral plan, and had thus violated the relevant provisions of the Recognition Act. The court further noted that in view of the ownership of a part of the plot by a third person, the applicant could not physically have occupied it. Hence, the initial decision to recognise his title was erroneous.

22. That decision was upheld on appeal by the Kutaisi Court of Appeal on 27 January 2010. In connection with the second part of the plot, which did not overlap with another property, the court simply concluded that no separate request had been lodged for the recognition of property rights with respect to that part of the plot; hence no separate decision was made by the Commission.

23. On 22 September 2010 the Supreme Court of Georgia dismissed an appeal by the applicant on points of law as inadmissible.

3. Mikeladze v. Georgia, application no. 29385/11

24. On 3 January 2008 the Property Recognition Commission, acting at the request of the applicant, recognised her property title to a plot of land measuring 2390 sq. m in the village of Mtsvane Kontskhi (Khelvachauri District). On 15 January 2009 the Public Registry registered the plot in the applicant ’ s name.

25. On 24 December 2009 the Commission overturned its decision of 3 January 2009. It concluded that one part of the plot allocated to the applicant served in fact as a road and also formed part of an adjacent park, while another part of the plot concerned overlapped with the property of another physical person.

26. On 9 March 2010 the Khelvachauri District Court confirmed the Commission ’ s decision. 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 further observed that the plot in question was part of a resort zone.

27. The decision of the first-instance court was upheld on appeal by the Kutaisi Court of Appeal on 6 July 2010. The latter concluded that the applicant had failed to support her property recognition request with documents showing that she had indeed been unlawfully occupying the contested plot. On 22 November 2010 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible.

4. Kravishvili v. Georgia, application no. 32970/12

28. By a decision of 22 July 2009 the Khelvachauri Registration Service alloc ated a plot of land measuring 2 502 sq. m to the applicant in the village of Mtsvane Kontskhi (Khelvachauri District). The decision stated that an appeal lay against it within thirty calendar days. The applicant was provided with a property certificate on the bases of which she registered the plot concerned in her name.

29. On 7 October 2010 the Batumi City Hall appealed against the above decision. They claimed that the plot of land allocated to the applicant formed part of the Batumi Botanical Park, and that the ownership title of the applicant was thus unlawful.

30. On 10 March 2011 the Batumi City Court overturned the decision of the Khelvachauri Registration Service dated 22 July 2009 and revoked the applicant ’ s property title. The court concluded that the initial decision recognising the applicant ’ s property right had been taken unlawfully since the applicant had failed to submit evidence in support of her claim that she had been lawfully using the plot in question.

31. That decision was upheld by the Kutaisi Court of Appeal on 29 June 2011. On 19 October 2011 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible.

5. Shavadze v. Georgia, application no. 31315/12

32. The applicant had been occupying a State-owned plot of land measuring 2680 sq. m in the village of Gonio under a lease agreement since 1999. He had been cultivating the land and trading agricultural products, supporting his family financially in this way.

33. On 20 May 2008 the Khelvachauri Property Recognition Commission, after examining the applicant ’ s request and supporting documents, recognised his ownership rights over the plot concerned. The plot was accordingly registered in the applicant ’ s name by the Public Registry and the applicant started paying the relevant property tax. In 2009 the applicant built a house there.

34. On 3 December 2010 the Khelvachauri Property Recognition Commission revoked the applicant ’ s title. The commission concluded that the applicant ’ s initial request for the recognition of his ownership had not been supported by the required documents. Furthermore, the village of Gonio formed part of a resort zone and the plot concerned was in addition part of an archaeologically protected zone. Disposal of it was hence wrongful.

35. On 3 February 2011 the Khelvachauri District Court dismissed an appeal by the applicant against the revocation decision. The court concluded, in line with the reasoning of the Property Recognition Commission, that the recognition of the applicant ’ s property right over a plot of land which was in a resort area and formed part of an archaeologically protected zone was ab initio wrongful.

36. On 29 April 2011 the Kutaisi Court of Appeal upheld the first ‑ instance court decision. The court ruled that the property recognition decision had been made without comprehensive assessment of all the facts relevant to the case; that the supporting documents submitted by the applicant to the Property Recognition Commission had not met the requirements of the law; and that the plot concerned, while located in a resort area, also formed a part of the designated archaeological-architectural museum-reserve of Gonio Apsarus and hence constituted a protected zone for the purposes pf the Recognition Act.

37. On 10 November 2011 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible.

6. Zoidze v. Georgia, application no. 33204/12

38. The applicant and her family had been cultivatin g agricultural land measuring 2 560 sq. m in the village of Gonio (Khelvachauri District) under a lease agreement since 1999. On 15 January 2008 the Property Recognition Commission, after studying the applicant ’ s file, recognised her ownership right over the plot concerned. On 31 January 2008 her property title was registered with the Public Registry.

39. On 3 December 2010 the Property Recognition Commission revoked the applicant ’ s property right. It concluded that during the initial examination of her recognition request the applicant had failed to submit the required supporting documents. The Commission also observed that the plot concerned formed part of an archeological protection zone, which in itself was protected under the Recognition Act and other relevant legislation.

40. By a decision of 15 February 2011 the Khelvachauri District Court confirmed the revocation of the applicant ’ s property right. The court, while referring to the relevant provisions of the Law on Cultural Heritage and the Recognition Act, maintained that the initial recognition of the applicant ’ s property right had been wrongful. That decision was confirmed by the Kutaisi Court of appeal on 6 May 2011. In connection with the applicant ’ s allegation of unlawful deprivation of property the appeal court noted the following:

“It is obvious that the current legal dispute does not concern a deprivation on the part of a State of property right, but rather deals with the examination of the lawfulness of property rights granted on the basis of an individual administrative ‑ legal act ... ”

41. On 3 October 2011 the Supreme Court of Georgia dismissed an appeal by the applicant on points of law as inadmissible.

B. Relevant domestic law and practice

1. The Constitution of Georgia

42. 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)

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

Article 2 - Definition of terms

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

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

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

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

Article 3 – Scope of the Law

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

a) cattle/animal transportation routes ...

c) protected territory

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

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

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

Article 4 – The body competent to recognise property rights

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

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

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

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

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

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

b) a cadastral plan of the plot of land;

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

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

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

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

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

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

44. 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

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

“ Recognition of Property Rights

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

The unlawful revocation of decisions regarding the recognition of property rights

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

COMPLAINTS

46. The applicants claim that the revocation of their property rights was in breach of Article 1 of Protocol No. 1. The applicant in application no. 7220/11 also complains under Article 6 § 1 of the Convention about the refusal of the Supreme Court of Georgia to hear his appeal on points of law.

QUESTIONS TO THE PARTIES

COMMON QUESTIONS

1. Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? In particular, have the applicants been deprived of their plots of land in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?

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

CASE-SPECIFIC QUESTIONS

Avaliani v. Georgia, application no. 7220/11

Did the refusal of the Supreme Court of Georgia to examine the applicant ’ s case because of his failure to pay the court fees disclose a violation of his right of access to court as gua ranteed by Article 6 § 1 of the Convention?

APPENDIX

No

Application No.

Lodged on

Applicant

Date of birth

Place of residence

Represented by

7220/11

05/01/2011

Zurab AVALIANI

29/09/1985

Batumi

12549/11

14/02/2011

Gocha and Jumber KHUNDADZE

04/12/1977

Village Kapreshumi

29385/11

28/04/2011

Eka MIKELADZE

22/08/1979

Batumi

32970/12

17/05/2012

Marine KRAVISHVILI

02/06/1957

Batumi

Irakli SHAVADZE

31315/12

21/05/2012

Otar

SHAVADZE

28/08/1958

Batumi

Khatuna BAGRATIONI

33204/12

24/05/2012

Tsiala ZOIDZE

17/06/1962

Batumi

Khatuna BAGRATIONI