CEDH · CASELAW;CLIN;ENG — 27 mai 2010

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Georgia - 18768/05 Judgment 27.5.2010 [Section II] Article 1 of Protocol No. 1 Article 1 para. 1 of Protocol No. 1 Peaceful enjoyment of possessions Possessions Eviction of an internally displaced person from State-owned accommodation after ten years’ uninterrupted good-faith occupation: violation   Facts – The applicants were internally displaced persons (IDPs) who had fled Abkhazia (Georgia) in 1993, abandoning their homes and property there following the armed conflict of 1992-93. In 1994 the first applicant, a high-ranking official in the Abkhazian Ministry of the Interior, was offered the post of Head of the Investigative Department within the Georgian Ministry of the Interior. He and his family were subsequently settled in a cottage belonging to the Ministry that was intended to provide accommodation to exiled staff members. The first applicant and his family, along with eight other homeless relatives, started living in the cottage and using the adjacent plot of land where they grew vegetables and fruit, and kept poultry and small livestock. In 1998 the first applicant retired from the Ministry, which, in a letter to him and to the relevant local-government authorities, confirmed that he held legitimate possession of the cottage and adjacent premises, but that his possession was of a temporary nature and for an unspecified period of time. After the Rose Revolution in 2003, the first applicant was called out of retirement by the newly appointed Minister of the Interior and agreed to lead the investigation into a high-profile criminal case. According to him, the findings of the investigation proved inconvenient for certain high-ranking officials and the then Prosecutor General personally asked him not to pursue his inquiries. In 2004 that Prosecutor General was appointed Minister of the Interior and allegedly ousted the first applicant from office. In November 2004, in the first applicant’s absence, a group of about sixty armed special-force agents wearing black balaclava-like masks broke into the cottage and, without any legal document authorising their actions, forcibly ousted the family members and relatives present. Police officers remained stationed in the cottage and on the adjoining plot of land after the eviction. The courts dismissed the first applicant’s civil claims and criminal complaints. Subsequently the first applicant was convicted of various offences and sentenced to seven years in prison. Law Admissibility: Only the first applicant had pursued his complaints before the national judicial authorities. Consequently, the Court rejected the complaints of the rest of the applicants for failure to exhaust the domestic remedies available in Georgia. Article 3: As regards the allegedly degrading manner in which the eviction had taken place, the first applicant had not been at home during the eviction and so could not claim personally to have been a victim of it. Conclusion : inadmissible (incompatible ratione personae ). Article 1 of Protocol No. 1: (a)   Existence of a “possession” – The first applicant had not been squatting the cottage as it had been offered to him by his employer, the Ministry of the Interior, which, in accordance with a ministerial order, had been authorised to use the cottage for the purpose of housing staff members displaced from Abkhazia. Even assuming that there had existed a more appropriate formal procedure for the transfer of the cottage to the first applicant, the authorities could not reasonably have been expected to follow up in detail every housing situation given there had been about 300,000   IDPs to care for at the time. More importantly, having regard to the authorities’ manifest tolerance of the first applicant’s exclusive, uninterrupted and open use of the cottage and the adjacent premises for more than ten years, such possession maintained its good-faith character, even in the absence of a registered property title. Moreover, by adopting various legal acts, the State had confirmed the IDPs’ rights in the housing sector and established solid guarantees for their protection. The most conspicuous and authoritative amongst these was the Internally Displaced Persons and Refugees Act of 28   June 1996, which recognised that an IDP’s possession of a dwelling in good faith constituted a right of a pecuniary nature. Thus, it wasnot possible to evict an IDP against his or her will from an occupied dwelling without offering in exchange either similar accommodation or appropriate monetary compensation. In sum, the first applicant had had a right to use the cottage as his accommodation and this right had a clear pecuniary dimension. It should therefore be regarded as a “possession” for the purposes of Article   1 of Protocol No.   1. (b)     Existence of an interference and its justification – It was not in dispute between the parties that there had been interference with the first applicant’s right to the peaceful enjoyment of his possessions. The only lawful way for the Ministry of the Interior to have reclaimed the cottage from the first applicant would have been to bring adversarial proceedings in court. However, the eviction and dispossession had occurred in the absence of any court decision, pursuant to an oral order by the Minister of the Interior. In the subsequent court proceedings brought by the first applicant, the courts had failed to acknowledge that he had been in continuous good-faith possession of the cottage for over ten years and that his eviction and dispossession had been carried out unlawfully. They had likewise not afforded him the protection provided for in the relevant domestic laws concerning IDPs. The Supreme Court in particular had contradicted its own earlier case-law in which it had prevented a State agency from retrieving a State-owned dwelling from IDPs. In sum, the interference with the first applicant’s peaceful enjoyment of his possessions had not been lawful, whilst the subsequent judicial review had been arbitrary and amounted to a denial of justice. Conclusion : violation (six votes to one). Article 8: The taking of the cottage, which had been the first applicant’s home for more than ten years, had also constituted an unlawful interference with his right to respect for his home. Conclusion : violation (unanimously). Article 41: The most appropriate form of redress would be to have the cottage restored to the first applicant’s possession pending the establishment of conditions which would allow his return, in safety and with dignity, to his place of habitual residence in Abkhazia, Georgia. Alternatively, should the return of the cottage prove impossible, the first applicant’s claim could also be satisfied by providing him, as an internally displaced person, with other proper accommodation or reasonable compensation, the amount of which should be agreed on by the parties within six months from the date on which the judgment became final. Should the parties fail to reach agreement within that period, the Court reserved the right to fix the further procedure under Article   41 of the Convention, in order to determine itself the amount of such compensation. The Court also awarded the first applicant EUR   15,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes