PROTECTION OF PROPERTY UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE GEORGIAN CONSTITUTION: ANALYSIS OF THE JUDICIAL PRACTICE OF BALANCING PROPORTIONALITY OF INTERFERENCE WITH THE INDIVIDUAL PROPERTY RIGHTS

Abstract

Protection of private property is one of key cornerstone issues in development of liberal economy and building stable democratic political and legal system, which would be serving interests of modern civil society and interests of individual members of that society. In such a system state would be acting as a guarantor of effective enjoyment of property rights and would not be interfering in free circulation of property between private individuals. In other words the modern state’s function is to safeguard property. Such a modern state should not impose unnecessary restrictions on the right to peacefully enjoy property, unless they are absolutely necessary, proportionate and based on the principles of rule of law, which are the crucial foundations for ensuring effective exercise of the right to peaceful enjoyment of possessions.'

The notion of private property was never recognised in the Soviet legal system, which for political reasons focused on protection of State property and socialist property. Private land ownership and ownership of real estate property, contrary to a possibility to have transactions in land and immovable property in liberal economy societies, was not recognised and was not allowed. It was limited to the right to use, to own and to dispose of property. But these rights, especially the rights to own and dispose of property were limited in law and in practice, circumventing the very essence of the right to peaceful enjoyment of possessions.

Thus, for instance, the Foundations of the USSR civil legislation declared that an individual owner had a right to own, use and dispose of property, however, they further established a discriminatory subdivision of property into its several types – the socialist property, which comprised of State property (so-called “peoples’ property”) and property of collective farms, professional trade unions and other collective organisations that were managing state-owned property. The Foundations of civil legislation that were used as sources of legislative drafting for Civil Codes of the Soviet Socialist Republics, also established a right to have individual or personal property, which was limited in scope of ownership. For instance, every citizen had a right to have personal property based on his/her “labour-related incomes”, which could only be used for aims that were not contrary to “the interest of society”. A person had a right to own only one house (or a part of it) of a particular size determined by law. Villagers, who were all members of the collective farms, could only own a limited number of domestic animals.3 Personal property could be “requisitioned” or “confiscated”, in the interests of the State or society, with payment of compensation and without it, respectively. Regime of protection of personal property was also much weaker than the State property that was better protected by criminal and administrative legislation and relevant law enforcement machinery. This was also underlined in the provisions of 1977 Brezhnev’s era Constitution of the USSR, whereas Article 61 of that Constitution established a duty on the citizen to protect socialist property as a highest valued property in existence. Such a legal approach fully reflected the Marxist approach to socialist property as a mean of production in socialist society, which in turn reflected the approach to the law of property as a group of legal norms regulating the conditions of attribution of means of economic pro-duction and results of labour by the state (representing the interests of working class) who owned, used and disposed of the aforementioned items. This political economy approach made an emphasis on prevalence of collective and state property over private property of an individual, which meant that the property rights of every private person were generally diminished notwithstanding declaration of joint people’s ownership of land, natural and other resources that were declared state-owned, i.e. owned by all people.

Both the provisions of the USSR Constitution and the Foundations of Civil Legislature did not really reflect the provisions of international law, related to protection of property rights, which were adopted much earlier, as they greatly emphasised on dominance of socialist property over personal property. In particular, in comparison with the mentioned legal acts, Article 17 of the Universal Declaration of Human Rights, adopted and proclaimed by the General Assembly of the UN on 10 December 1948, with participation of the three original Soviet members of the UN, established that “everyone has the right to own property alone as well as in association with others” and that “no one shall be arbitrarily deprived of his property”. The approach taken in Soviet jurisprudence and reflected in Constitution and Foundations was also quite different from the spirit, formulations and notions used in the text of Article 1 of Protocol No. 1 to the Convention, adopted in 1952, which established that “every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” It also established that the establishment of the right to property “shall not in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The changes brought to the Constitutions of the former Soviet States, after dissolution of the Soviet Union and relevant declarations of independence of these states, reflected on the approaches taken to protection of property, declaring that a right to peaceful enjoyment of possessions is a fundamental right, protected by law and its enforcement machinery, contrary to the Soviet times when this right was neglected. These constitutional novelties also prohibited any arbitrary interference into the right to peaceful enjoyment of possessions or any interference not based on law. For instance, Article 21 of the Constitution of Georgia, with changes and amendments effectuated in 2006, developed the principles established by Article 1 of Protocol No. 1, and specified that: “1. The property and the right to inherit shall be recognised and guaranteed. The abrogation of the universal right to property, of the right to acquire, alienate and inherit property shall be impermissible. 2. The restriction of the rights referred to in the first paragraph shall be permissible for the purpose of the pressing social need in the cases determined by law and in accordance with a procedure established by la. Deprivation of property for the purpose of the pressing social need shall be permissible in the circumstances as expressly determined by law, under a court decision or in the case of the urgent necessity determined by the Organic Law and only with appropriate compensation.”

Thus, the new Constitution of Georgia incorporated the approaches taken in the caselaw of the European Court of Human Rights to protection of property and established a higher degree of protection to property rights than it was initially provided by Article 1 of Protocol No. 1 to the Convention.In particular, Article 21 of the Constitution established that interference with property rights to acquire, alienate and inherit shall be effectuated only in the event of existing “pressing social need” and “in accordance with the procedure established by law”. It also prohibited any deprivation of property without a judicial decision and without compensation, which is not exactly always similar in the practice of the European Court of Human Rights.The domestic legislation seems to firmly prohibit any deprivation of property without compliance with the substantive and procedural requirements of law and relevant compensation to be paId. 12 A similar approach was adopted to certain sensitive areas of property protection in Georgia, such as for instance restitution

of housing and property to the victims of Georgian-Ossetian Conflict, in a way it has been analysed by the opinion of the experts of the Venice Commission, one of whom was the member of the European Commission of Human Rights, which have stated that:

“...with regard to property, and in any particular case, the requisite fair balance had to be struck. ... The striking of a fair balance depends on many factors, and it is of vital importance that the applicable procedures are such to enable that all relevant factors are taken into due consideration... Although Article 1 of Protocol No. 1 does not expressly require the payment of compensation for a taking of, or other interference with property, in the case of a taking (or deprivation) of property, compensation is generally implicitly required. ... taking of property without an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1. Article 1 does not, however, guarantee a right to full compensation in all circumstances, since legitimate objectives of “public interest”, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value. ... Finally, an interference with the right to property must also satisfy the requirement of legal certainty, or legality ... a deprivation of property a taking must be ''subject to the conditions provided for by law” ... the State (or public authority) must comply with adequately accessible and sufficiently precise domestic legal provisions, which satisfy the essential requirements of the concept of “law”. This means not only that the interference in question must be based on some provision of domestic law, but that there must be a fair and proper procedure, and that the relevant measure must issue from and be executed by an appropriate authority, and should not be arbitrary.”

The aforementioned approach is clear and logical, is following the general approach taken in public and private international law to such matters as property taking, it is an easy to follow approach to be taken by the state and judicial authorities in practice in cases relating to interferences with property rights. However, plainly speaking, it does not take into account particular circumstances of interference with property rights. Let’s assess how it is being applied in the practice by the European Court of Human Rights in cases concerning Georgia and by the Georgian Constitutional Court16 and which criteria are being applied to decide on whether property rights were unlawfully interfered with.