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Land and Justice

September 16, 2009

Tea Topuria

A plot of land was seized from Goderdzi Goderziani.  He learned about it only when he received notification from the Public Registration Agency. Since then he has been trying to obtain the return of the seized property through the court. The seized plot was initially registered as a state property after it had been seized from Goderziani and then it was granted to the Bodbe Monastery. There are two truths about the plot: Gordezeiani thinks the plot was seized from him illegally and then illegally granted to the monastery which received the plot from the state.

Governmental Officials Cannot Write Decrees

The law was breached by the governmental institutions. Goderdzi Gordeziani purchased the 5 hectare plot of land in 2007. The plot is close to the Monastery in Bodbe, Sighnaghi. He paid 75 GEL to the budget for it (that means the price of the entire land was 140 GEL because the money paid to the budget shall be 50 % of the total cost). Gordeziani clarified that he had purchased the land for a small price because he had leased the plot before purchasing it. So he had an advantage over other purchasers.

Structures of the executive branch of government created one more ground for the misunderstanding. Gordeziani purchased the plot as a pasture. Later, the governmental institutions gave oral explanations to Gordeziani concerning why the plot was seized from him (that reason was not mentioned in the official document) and they stated the land was forest and not the pasture for which Gordeziani had purchased it. It is necessary to find out who and why granted the land with an incorrect category and why it was granted in that way because the area is covered with trees; it is located next to the St. Nino Monastery and many people have seen it when visiting the monastery.

Anyway, the officials had registered the land plot of 5 hectares to Gordeziani and it became his property based on the protocol N 557 on the purchase of the land and other property drawn up by the Regional Department on April 12, 2007. On the same day the purchase was registered by the Public Registration Agency.

On April 30, 2007 Zurab Butskhrikidze, head of the Kakheti Regional Department of the Ministry of Economics, issued decree N 720 annulling the previous decree on assigning the land to Gordeziani. If the decree had been drawn up in compliance with the law, if the reason for seizing the land had been clarified correctly in the document (the land was forest and not pasture), the Regional Department of the Ministry could have been praised for the decision. However, officials wrote the decree incorrectly and Gordeziani has all legal grounds to consider his rights breached and the land illegally seized from him. The reason for the deprivation of the land in the decree was article 60, part I of the General Administrative Code of Georgia.

It is unclear why this article was mentioned in the decree when it envisages nullification of the document.

An administrative decree shall be nullified, if:
(a) it was issued by an incompetent institution or official, (b) its implementation would result in an offense, (c) its implementation is impossible due to factual reasons, or (d) it contravenes law, or if the statutory procedures of its preparation or promulgation were substantially violated.

The decree can be nullified if it contradicts the law or it is drawn up through violation of the norms contained in the law. Even in such a case the decree must provide the reason for the nullification; but nothing similar was mentioned in the decree regarding Gordeziani.

If the authors of the decree N 720 had had the same reason for seizing the land as they said during the conversation (incorrect status of the land), it could have been accomplished by a corresponding article of the law. However, the officials of the local governmental institution failed to do so (because of lack of competence) and did not bother themselves with extra efforts.

Theformal requirement of drawing up the decree was breached. According to the General Administrative Code of Georgia, an individual legal decree shall indicate the administrative institution (address and date by which the suit shall be filed) where the decree can be appealed. The decree N 720 does not contain this information.

The regional department neglected one more requirement of the law (Article 95, Part II of the Administrative Code) which states that the administrative agency shall inform an interested party about the commencement of an administrative proceeding, if the administrative act may deteriorate the legal status of the party, and shall ensure his participation in the proceeding. The agency did not do that. Gordeziani learned about the changes only after the land had been seized from him on May 10, 2007.

Assumptions of Gordeziani

Gordeziani says that Bodbe Monastery was interested in the land and that the local authority was oppressing him because of this reason. On the other hand the Monastery does not deny that since the land was located next to their territory and because the forest is being destroyed and the destruction of the forest threatens the monastery with an eventual landslide, they are interested to protect the land. However, they do not want to break the law and seize the property from the owner. That would be unacceptable to the church. It is evident that the state agencies did not do much of a favor for the monastery because they chose an illegal way to return historical and necessary land to the monastery. They issued the decree but created an awkward situation for the monastery and compelled Gordeziani to start an endless struggle for the property. It would not have happened if officials had known how to write decrees.

Time Passes Slowly in the Ministry

Goderdzi Gordeziani decided to fight for his rights and to appeal the decree at the National Agency of the Public Registration which had informed him about the decision. It was here that there started the chain of the violation of Gordeziani’s rights. On May 11 He applied to the Registration Agency and requested to annul the decree N 720. On May 24 he received the reply which stated it was beyond the competence of the Agency to annul the decree and they had sent his appeal to the Ministry of Economic Development.

On August 16, 2007 Gordeziani brought suit in the Telavi District Court. On September 4, 2007 the court, with Natela Jashiashvili as judge, did not accept the suit and ceased proceeding on the case. The reason for the decision was Article 100 part I of the Administrative Code: the one-month time within which the suit must be filed had expired.

The court decision was not legal as is clarified by Nestan Londaridze, lawyer for the Human Rights Center. She said “The court counted the one-month term incorrectly. It started counting from May 24 when Gordeziani received a reply from the Public Registration Agency. In fact, the reply just stated that the issue had to be discussed by the Ministry. However, the Ministry sent its reply to Gordeziani several months later.’

The Ministry of Economic Development still continued to discuss the case. However, the process was very slow. Gordeziani received the final reply from the Ministry by the decree N 1-1/274 dated February 29, 2008. The Ministry refused to discuss the suit.

Activities and Intensions of the Ministry Were Different

The Ministry grounded its decision on the Article 182 – “c” of the Administrative Code which states: “An administrative agency may not review an administrative complaint if the same or a higher administrative agency has already rendered a decision regarding the same matter.”

To say the same thin in simple words, the Ministry concluded they had already made a decision on the issue and that was the basis of the denial to discuss the matter on the appeal. The Ministry gave a very strange explanation to the question why they had not informed Gordeziani about their decision on time: they explained that not informing the applicant means a refusal and since they did not reply to Gordeziani’s appeal he had to guess their response correctly and appeal to the court on time. (According to the Article 177.2 of the Administrative Code “The failure of an administrative agency to issue an administrative act within the term fixed shall be considered a refusal to issue the act and will constitute the ground for filing a complaint).

In addition to that, we shall also pay attention to the fact that the decree was drawn up by the regional department based on Article 60 of the Administrative Code and Gordeziani requested to annul it. This article does not recognize that there is a restriction of the tern within which a suit must be filed (Terms of appealing administrative-legal decrees estimated by the Code do not apply to nullified decrees.” Article 60.2) Thus, it made no difference when Gordeziani sued concerning the reply of the Ministry.

Why did the Ministry refuse to discuss he suit of Gordeziani? We asked this question to the Ministry but they sent the same reply to us – they had already refused Gordeziani to discuss his appeal. However, they did not explain what the reason of their initial refusal was.

After the Telavi Court did not accept the suit of Gordeziani and the Ministry gave a strange reply to him, Gordeziani appealed to the City Court. He requested the court to require the Ministry of Economic Development to discuss his suit and to give him a concrete reply. Gordeziani did not request to annul the decree issued by Butskhrikidze, he requested to order the Ministry to discuss his suit.

The City Court did not grant the appeal of Gordeziani because it was groundless. The court concluded that the Ministry of Economic Development legally had refused to discuss the suit. That means, the City Court thinks Gordeziani should not have waited for an official reply from the Ministry and should have appealed on time to the Telavi district court.

Nino Andriashvili, a lawyer for the Human Rights Center, assessed the conclusion of the City Court: “The Court breached Article 42 of the Constitution of Georgia which guarantees the protection of human rights and basic freedoms. They also breached the requirement of Article 6 of the Convention on Human Rights and Basic Freedoms (Right to Fair Trial).

Finally, nobody managed to make the decision comply with the law and the decree which is still valid.

The court was one link in the chain in this case. It could not state that the decree issued by the Kakheti Regional Department of the Ministry of Economic Development was incompetent and breached the law.

The laws in the state work for everybody and everybody obeys them. The land could have been assigned to the Monastery without violating the rights of Gordeziani. We visited the Monastery and Mother Iona told us that the Monastery had not oppressed anybody to get hold of the land. They received the land from the state on June 12, 2009 based on the President’s decree and paid a symbolic price for it – 1 GEL.

All in all, if the court had determined on time whether the land was legally seized from Gordeziani by the Ministry and if at least one employee of the ministry knew how to write the decree, the court would not have been considered unfair and a gap between people and the church would not have appeared.

The investigation was carried out by the Human Rights Center and Magazine “Sitkva” with financial support of the Eurasian Partnership Fund
Head of the investigation team
Lia Toklikishvili

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