CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 27 mai 2010

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Georgia (application no. 18768/05)   UNLAWFUL EVICTION OF AN INTERNALLY DISPLACED PERSON   Unanimously, as regards: Violation of Article 5 §§ 3 and 4 (right to liberty and security) Violation of Article 8 (right to respect for home)   By six votes to one, as regards: Violation of Article 1 of Protocol No 1 (right to property)   of the European Convention on Human Rights     Principal facts   The applicants are six Georgian nationals who are relatives: a husband and wife and their three children - two daughters and a son, and the son’s wife. The applicants, with the exception of the fourth one (the son’s wife) are internally displaced persons (IDPs) who fled Abkhazia, Georgia in 1993 abandoning their homes and property there following the armed conflict of 1992-93.   In January 1994, the Georgian Minister of the Interior offered the first applicant, a high-ranking official in the Abkhazian Ministry of the Interior, the post of Head of the Investigative Department within his Ministry. After the first applicant accepted the offer, he and his family were settled in a cottage belonging to the Ministry and situated in the outskirts of Tbilisi (“the cottage”). According to the case file, the cottage became the Ministry’s property on 29 October 1993 on the basis of a ministerial order stating that the cottage was to be used for the purposes of accommodating exiled staff members of the Ministry.   The first applicant and his family, along with eight other homeless relatives who had moved in with them in the meantime, 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 issued a letter in April 2000, given to him and to the relevant local government authorities, in which it confirmed that he held legitimate possession of the cottage and the adjacent premises, of a temporary nature and for an unspecified period of time.   Almost immediately after the Rose Revolution in November 2003, the first applicant was recalled from retirement by the newly appointed Minister of the Interior and accepted to lead the investigation into an unsolved high-profile criminal case, the Kaladze case, which concerned the abduction and disappearance of the brother of a well-known Georgian footballer playing for the Italian football club AC Milan. According to the first applicant, as the findings of the investigation he led were inconvenient for certain high-ranking officials who had been covering up criminal machinations in the Georgian football, in March 2004 the then Prosecutor General personally asked him to drop the investigation. In June 2004 that Prosecutor General was appointed Minister of the Interior and, allegedly, during the same month he ousted the first applicant from the office in a demeaning manner.   On 13 October 2004 the first applicant submitted a confidential file to the National Security Council, a consultative body of the President of Georgia. Allegedly, that file contained information revealing abuses of power by the Minister of the Interior and other high-ranking officials.   Starting from 25 October 2004, acting upon an oral instruction of the Minister of the Interior, the police visited the Saghinadze family several times asking them to vacate the cottage. The first applicant systematically refused, at times during heated exchanges with the police, asking to see a court order to that effect. On 1 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 Saghinadze’s family members and relatives who were present in the cottage at the time. Police officers remained stationed in the cottage and at the adjacent plot of land after the eviction.   The first applicant brought civil proceedings and filed criminal complaints claiming that he was arbitrarily deprived of the cottage and his professional activities were obstructed by the high-ranking officials in the Ministry of the Interior. In all those proceedings, he acted throughout on his own behalf as the sole claimant/complainant. The courts dismissed both his civil claims and criminal complaints.   On 20 February 2006, the police searched the cottage, as an urgent investigative measure and in the absence of the first applicant or his lawyers. They recorded finding firearms and copies of documents concerning various criminal cases, including the Kaladze case. On the next day, the competent district court authorised the search, thus legalising its results. On 2 June 2006 the first applicant was charged with unlawful possession of a gun, misappropriation of confidential official documents, ill ‑ treatment of a person, fabrication of evidence and other abuses of power committed in public office.   He was arrested on 4 June 2006 and, two days later, the court ordered his detention for two months reasoning that he might abscond and impede the investigation using his authority as a former high-ranking law-enforcement officer to influence the parties to the proceedings. Mr Saghinadze’s appeal against his detention was dismissed on 14 June 2006 after the court examined his arguments, without an oral hearing and without seeking any comments from the prosecutor. On 29 June 2006, when the investigation was completed, the applicant’s continued detention was reviewed by the court and authorised once again with a page-long template with pre-printed reasoning.   Mr Saghinadze was sentenced to seven years in prison in 2007 and is currently serving his sentence.   Complaints, procedure and composition of the Court   Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), Article   8 (right to respect for home) and Article   1 of Protocol No.   1 (protection of property), the applicants complain about their eviction from the cottage and the resulting loss of the home in which they had been living for ten years. Further relying on Article   5   §§ 3 and   4 (right to liberty and security), the first applicant makes various complaints about his pre-trial detention in the context of the criminal proceedings brought against him.   The application was lodged with the European Court of Human Rights on 27 April 2005; on 13 December 2006, the first applicant introduced new complaints related to his pre-trial detention.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President, Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Nona Tsotsoria (Georgia), Kristina Pardalos (San Marino), judges,   and Sally Dollé, Section Registrar.   Decision of the Court   Admissibility   The Court noted that 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.   Degrading treatment during eviction (Article 3)   As regards the degrading manner in which the eviction had taken place, the Court held that as Mr Saghinadze had not been there, he could not claim personally to have been a victim of it, and rejected his complaint under Article 3.   Right to property (Article 1 of Protocol No 1)   Concerning Mr Saghinadze’s claims in respect of the cottage, the Court noted that the Ministerial order of 29 October 1993 had explicitly stated that the cottage had to be used for the purposes of accommodating staff members displaced from Abkhazia. While there could have been better ways of formalising this particular housing transaction in respect of the first applicant, the Court found that the authorities could not have reasonably been expected to follow up in detail on every housing situation given there had been about 300,000 IDPs to care for at the time. In addition, the first applicant had continuously been in the exclusive, uninterrupted and open possession of the cottage and used it for over ten years, and that had been tolerated by the authorities. Further, after the cottage had been given to the first applicant, Georgia had adopted various legal acts confirming IDPs’ rights in the housing sector and establishing solid guarantees for their protection, including that IDPs could not be evicted against their will unless similar accommodation or adequate monetary compensation had been provided to them.   The only lawful way for the Ministry of Interior to have reclaimed possession of the cottage could have been by bringing court proceedings. However, the eviction and dispossession had occurred in the absence of any court decision, solely as a consequence of 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 possession of the cottage for over ten years. 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 the Khinitibidze and Others case of 28 November 2001) in which it had prevented a State agency from depriving an IDP from a State-owned dwelling which had been occupied without any State agency’s permission. Consequently, the Court concluded that Mr Saghinadze had been deprived unlawfully of of the right to use the cottage and the subsequent judicial review of this deprivation had been arbitrary and had amounted to a denial of justice, in violation of Article 1 of Protocol 1.   Right to respect for home (Article 8)   The Court held that the taking of the cottage, which had been the first applicant’s home for over ten years, was unlawful and in violation of Article 8.   Pre-trial detention violations (Article 5 §§ 1, 3 and 4)   The Court rejected Mr Saghinadze’s complaint that he had been detained unlawfully, as it found that his arrest and custody pending trial had been based mostly on information capable of satisfying an independent observer that the offences he had been accused of had been committed at the time of his arrest.   As regards Mr Saghinadze’s complaints about the absence of good reasons for his prolonged detention pending trial, the Court held that the first two court decisions concerning his detention, of 6 and 14 June 2006 had been well-reasoned, while the decision of 29 June 2006 had been formalistic in nature and not sufficient to justify detaining him for further six months and twenty-four days. There had therefore been a violation of Article 5 § 3.   Concerning Mr Saghinadze’s complaints that the courts had decided to prolong his detention without holding an oral hearing, the Court found that not to have been to his detriment as the proceedings had nonetheless been adversarial and had respected the equality of arms. Therefore there had been no violation of Article 5 § 4.     However, there had been a violation of Article 5 § 4 as regards the court decision of 29 June 2006, when the court had heard the prosecutor but not Mr Saghinadze and when the decision had been on a template with pre-written findings.   The Court rejected Mr Saghinadze’s other complaints under different Articles.   Under Article 41 (just satisfaction) of the Convention, the Court held that Georgia had to return the right to use the cottage to the first applicant, or, failing this, to give him another appropriate lodging, or to pay him a reasonable monetary compensation the amount of which had to be agreed between him and the Government within six months from the date when this judgment becomes final. In addition, Georgia was to pay to Mr Saghinadze 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 752 for costs and expenses.   Judge Jočienė expressed a partly concurring opinion and judge Cabral Barreto expressed a partly dissenting opinion, both of which are annexed to the judgment.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79) or The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.