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Widespread Confiscation of Property of Sighnaghi Inhabitants by Making Forced “Gifts”

September 9, 2008

Gela Mtivlishvili, Kakheti

With the rehabilitation of Sighnaghi, a number of criminal acts were carried out within the town. For instance, private and commercial property has been confiscated from their rightful owners. The cases are not isolated, as in the cases of Manana Macharashvili, Tamar Tarashvili, Gela Bezhashvili and Baadur Milashvili who have been outspoken about how their property rights have been violated. Baadur Milashvili was forced to hand over his private property to the state. Milashvili said that if he had not been in pressure and duress that he would have never have agreed.

Baadur Milashvili owned a house (535 sq. meters) located on Iv. Lolashvili Street # 1, Sighnaghi until December 14th, 2006. This allegation can be proven by an extract from National Civil Registry Agency database. On December 14th, 2006 citizen Baadur Milashvili and the state of Georgia (in particular, Sighnaghi State Property and Privatization Department) signed a contract for the passing of a gift.  As written in the document, Baadur Milashvili transferred his property to the state, and no payment was involved – it was done free-of-charge.

In the timeframe, several people were also so generous, demonstrating altruistic behavior that was the first, including Gela Bezhashvili. He was forced to sign the same kind of contracts with the state in order to present his property as a “gift.” Gela Bezhashvili’s case was introduced in several parliamentary reports of the Public Defender of Georgia (Bezhashvili gave the state his property- a 720 sq. meters on Erekle II Street # 1a of the City of Sighnaghi as a present – and this was totally free-of-charge).

“On the night of December 13th, 2006 several unidentified people took me from the village of Bodbiskhevi to the city of Tsnori and threatened that if I did not give my property to the state my family and I would have some real problems. They said if I did not follow their instructions I would be arrested and drugs would be planted on my family members,” stated Baadur Milashvili. He added that he was frightened and had no other option but to sign the document of transfer, and this was done without delay – the very next day (December 14th).

Baadur Milashvili revealed the fact of being forced to hand over his property to the state only recently. The Office of Public Defender has also studied the case of Baadur Milashvili. Sozar Subari, the Public Defender considers that the contract between Milashvili and the state is being invalid.

“It is officially proven with the extract from the National Civil Registry Agency database and the notary act dating December 14th, 2006 that Baadur Milashvili was the owner of the house on Iv. Lolashvili Street #1 in Sighnaghi. There can be no doubts in this matter. According to Part I, Article 312 of the Civil Code of Georgia “the presumption of authenticity and completeness shall operate with respect to the Public Register, i.e. an entry in the Public Register shall be deemed to be accurate until its inaccuracy is proven otherwise”. The fact that no one has presented the documents which would prove the falseness of the record from the National Civil Registry Agency (the same as Public Register) is confirmed by the abovementioned notary act verified by Notary Giorgi Lomashvili. Therefore, we have all grounds to conclude that on December 14, 2006 Baadur Milashvili was the owner of the house (535 sq.meters) on Iv. Lolashvili Street # 1, Sighnaghi.

According to Article 50 of the Civil Code of Georgia, “a transaction is unilateral, bilateral or multilateral declaration of intent which is aimed to create, change or terminate legal relations.” The comment on this article is based on the theory of expressed will and indicates that the transaction is the expression of private will. Expressed might not concur with the actual will of the party. This can be used as the motive for invalidating the expressed will. The connection between inner and expressed will raises interest when there is a conflict between the two of them. In this case, expressed and inner will of Baadur Milashvili contradicts each other as Milashvili alleged that he was forced to express the will and transact his property.

According to Article 54 of the same code, “a transaction, that violates rules and prohibitions determined by law, or one that contravenes the public order or principles of morality, is null and void.” In this case, the contract/transaction between Baadur Milashvili and the state (Sighnaghi State Property and Privatization Department) is voided as Milashvili was forced to sign the document and this violated the law. We have serious grounds to think that Baadur Milashvili signed the document by forced,” states the Public Defender.

The Public Defender of Georgia also states that according to Article 85 of the Civil Code of Georgia, “the use of duress (violence or threats) for the purpose of making a transaction shall entitle the person subjected to the duress to demand that transaction be voided, even when a third person has exercised the duress” and therefore, in case of a duress someone else has interfere with the exercise of another person’s will. This aims at making a transaction. In our particular case someone else interfered with the Baadur Milashvili’s and the purpose was transferring property to the state free of charge as a present. I would like to highlight once again that Baadur Milashvili did this against his own free will: he was abducted, threatened and forced to make a transfer of his property.

Civil Code of Georgia defines the forms and character of duress. Violence and threat are forms of duress. Violence is when a person is physically forced to sign the transaction document or when someone makes another person suffer pain in order to take the responsibility. In the case of duress a person is frightened and does what abuser tells him to do. This happened in Milashvili’s case: he was threatened that his family would have problems. According to Article 87 of the Civil Code of Georgia, “duress likewise constitutes grounds for voiding the transaction when it is directed against the spouse, other family members, or close relatives of one of the parties to the transaction.”

“Duress must be real. Abuser and victim are both important components of duress In this case, Baadur Milashvili is the citizen with a spouse and children- a victim and the state- an abuser with its strong and huge institutions. The state controls all law enforcing bodies and the development of independent private business depends on the state.  To cut the long story short, on one side there is a strong counteragent (the state) with absolute power which impacts another party in (Milashvili) a negative way.

 Baadur Milashvili elucidates that he had serious reasons to consider that the people who abducted him on the night of December 13th to City of Tsnori could fulfil their promise. The time, place and manners of carrying out the threat are also relevant. Milashvili was taken at night in order to frighten him even more. Taking into consideration this fact, it is not surprising that Baadur Milashvili took the situation seriously and signed a document on transaction against his will the next day.

Hence, I consider that a number of laws were infringed as well as the constitution which protects property rights. In Milashvili’s case we see that the freedom of will protected by the Civil Code of Georgia was violated. Therefore, I recommend that the transaction document between Baadur Milashvili and the state should be considered void and the confiscated property should be returned to Baarud Milashvili. The damage from losing the property should be paid to him completely, or at least in the case of friendly agreement Baadur Milashvili should be offered an adequate compensation for his former property,” states Sozar Sobari, Public Defender.

The Public Defender’s recommendation was published within the report to the parliament. He also sent the case documents to the Prosecutor’s Office. However, no positive changes are observed. The investigation is still under way.

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