TEIMURAZ ANDRONIKASHVILI v. GEORGIA
Inadmissible
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
The applicant, Mr Teimuraz Andronikashvili, is a Georgian national who was born in 1928 and lives in Tbilisi. He was represented before the Court by Mr Alexander Baramidze, Mr Irakli Kandashvili and Mr Hans von Sachsen-Altenburg, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's father, a member of the Georgian aristocracy, was deprived of his land and other assets by the Soviet Government during the 1920s and 1930s. On 25 May 2005 the applicant brought an action against the relevant local authority, seeking restitution of his ancestral lands. In support of his claim, the applicant submitted archives confirming his father's title to the claimed land and, as a legal basis, referred to general rules on the protection of property and inheritance contained in the Civil Code, the Constitution and the international human-rights treaties ratified by Georgia. The action was registered by the Gurjaani District Court on the same day. According to the file as it stands at present, the restitution proceedings are still pending at first instance; no hearing has been held so far. Article 172 of the Civil Code bearing on the protection of ownership reads as follows: Article 172 §§ 1 and 2 “1. The owner can claim the asset back from the possessor unless the latter is entitled to possess it. 2. In the event of interference with the exercise of ownership other than the taking of the asset, the owner may request the trespasser to put an end to such an action. If the interference persists, the owner may bring a court action against the trespasser.” By passing the Act of 11 December 1997, the Georgian State recognised that Georgian nationals were subjected to political persecution by the Soviet State between February 1921 and 28 October 1991, entitling the victims to seek rehabilitation. The Act defined the notion of a victim of political persecution and created a procedure by which to obtain that status. In particular, section 6 of the Act provided that only a court could declare a person to be a victim. Section 3 specified that the next of kin of a direct victim was also entitled to seek rehabilitation. Section 8 (1) and (2) stated that, once recognised as a victim of political repression, the person in question would automatically have his or her political and civil rights reinstated. This excluded the reinstatement of any property rights, in so far as subsection 3 of the same section specified that “the means for the restitution of property of victims of political repression shall be governed by a separate Act”. No act concerning the restitution of property of victims of Soviet repression has yet been passed. In a decision of 31 July 1998, the Gori District Court reinstated the ownership rights of the claimant Mrs E. Cholokashvili over her late parents' land expropriated by the Soviet State in the 1930s. Mrs Cholokashvili had previously been recognised as a victim of Soviet repression within the meaning of the Act of 11 December 1997. Likewise, in a decision of the Krtsanisi-Mtatsminda District Court in Tbilisi of 24 October 2000, Mrs K. Chachua-Daghundaridze and Mrs T. Daghundaridze, the claimants, were declared the owners of assets once belonging to their ancestors who had been recognised as victims of Soviet repression. Another similar case was that of Mr N. Abkhazi, who, in a decision of 18 January 2005 of the Gurjaani Distrcit Court, was granted title to land expropriated from his grandfather by the Soviet State in 1923 and 1924. The only difference between this and the two above-mentioned cases was that, prior to the restitution of the property, neither Mr Abkhazi, the claimant, nor any of his ancestors had been recognised as victims of the Soviet State within the meaning of the Act of 11 December 1997. In all three above-mentioned cases, the claimants were excused from having missed the statutory time-limit for recovery of property, in view of the fact that the expropriation of their ancestors' property had been carried out by force and the respondents were either private persons or public agencies. The domestic courts' reasons underlying their decisions to allow restitution were based on the general principles of protection of property and the inheritance rules contained in the Civil Code, the Constitution and international human-rights treaties. Certain other general principles of law, such as equity, were also relied on. As acknowledged by the President of the Supreme Court in his foreword to its Recommendations, one of the problems of the Georgian judiciary was the lack of consistent case-law on similar disputes. Consequently, the Supreme Court deemed it necessary, for the purposes of harmonising judicial practice, to advise the lower courts on how certain types of dispute should be resolved. The President noted that the Recommendations were not of a mandatory nature but emphasised their significance. Chapter XIV of the Recommendations advised the courts that they should declare claims for restitution of property expropriated by the Soviet State in the 1920s and 1930s admissible but refuse them on the merits in view of the absence of a right to restitution under Georgian law.