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The Appeal Court Did not Return Recreation Status to the Digomi Park

May 6, 2011

Salome Achba

The Tbilisi Appeal Court did not change the verdict of the Tbilisi City Court and did not satisfy the suit of Ana Gabriadze and Caucasian Environmental NGO Network (CENN); they protested the amended status of one part of the Digomi forest-park.

The appellants requested to annul the administrative act which was adopted by the Tbilisi City Council on September 11, 2009 and changed the recreation status of the Digomi Forest-Park into a public-business zone.

The appellants allege that if the recreation status did not allow people to start any construction activities in the territory of forest-park, with the new status of a public-business zone 1 hectare of the park became a high quotient zone of constructions.  As a result, appellants Anna Gabriadze and the CENN believe that the decision of the City Council is illegal and it shall be annulled. However, both Tbilisi City Court and Tbilisi Appeal Court did not satisfy their suit and did not return the recreation status to the park.

“In 1998, Ltd “Sani” became owner of the Digomi Forest-Park which contradicted the 1995 resolution of the municipal committee and the 1997 general plan for arrangement of the Digomi Forest-Park. Beginning in 1999, “Sani Ltd” started to sell the territory in parts. In 2003, illegal construction started in the Forest-Park. Afterwards, the city authority realized that illegal construction in the recreation zone could cause serious problems and the city council found a simple solution to the problem – they changed the recreation status into a public-business zone,” said Lali Petriashvili, lawyer of Ana Gabriadze and CENN at the first court.

The appellants said, the Tbilisi City Council enacted the administrative act through procedural violations and it can become another evidence to abolish their document. There are only two conclusions of the City Council Commissions. As a rule, before the City Council passes final decision and remove the recreation status from the Digomi forest-park, at least 5 conclusions were necessary to be prepared before the status was amended.

“Nobody can claim that we would receive the same result with those 5 conclusions as we have today,” said lawyer Lali Petriashvili.

The defendant side – representatives of the City Council and City Hall – clarified that many people own private properties in the territory of the park. They tried to free the area from the private owners without breaching their rights and save the survived part of the park from destruction. With the amended status, they protected the rights of the private owners.

They added that the city authority tried to free the Digomi Park from private owners through negotiations and with many proposals but in vain; the owners did not wish to leave the territory.

“Since there were the buildings under the private ownership on the disputed territory, we had to change its status,” – stated the representative of City Council at the proceedings.

According to the defendant, there is no need of abolishment of the City Council decision as the applicants have not been directly damaged by it.

“If the applicants consider that the status change will damage the environment, we would like to remind them that since the adoption of the administrative act by City Council regarding the status change in 2009, no new construction has been started, no tree has been cut and no plant has been damaged,” – stated the lawyer of Tbilisi City Council at the administrative proceeding.

The applicant’s lawyer Lali Patriashvili stated that it is a constitutional right of every citizen to live in the healthy environment. Administrative complaint is admitted to the court if it violates the broad interests. Therefore, any resident of Tbilisi could have been an applicant in this case. The one who lives near the forest-park has superior interest. The applicant Ana Gabriadze is one of those. As for another applicant CENN (Caucasus Environmental NGO Network), it is clear from the title that it is environmental organization. According to the legislation, CENN can appeal against any normative act consequent from the objective of environmental protection and thus serve the purpose constituted in its charter.

Lali Pataraia responded to the issue with counter question: “It is interesting who could have been damaged directly by this administrative act?! The direct damage could have been inflicted only on trees and plants and it is obvious that they could not appeal against the City Council. The new status demonstrates the high coefficient of construction building. Therefore, according to the new status, the constructions might start there resulting in the environmental damage. The status should have been relevant for the buildings and not vice versa. The buildings here should have been destroyed as they were built on irrelevant place,” – stated Lali Petriashvili.

According to the representative of the City Council and City Hall, new status does not mean that the owners have right to build anything in this territory. New status envisages range of limitations that the owners need to abide to.

The applicants made several requests, including acceptance of the investigative movie by the studio Monitor on Dighomi forest-park as evidence. The judge did not render the request. Ultimately, the judge upheld the City Court decision and did not abolish the administrative act of the City Council according to which the status was changed for a part of Dighomi forest-park and turned into public-business zone. Ana Gabriadze and CENN are going to appeal against decision in the Supreme Court.

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