Composition of the Board:

Besik Loladze – President of the hearing;

Otar Sichinava – Member;

Lali Papiashvili – Member, Judge Rapporteur;

John Khetsuriani – Member.

Secretary to the session: Darejan Chaligava.

Title of the case: Citizen of Georgia Akaki Mikadze v. Tbilisi Sakrebulo.

Subject of the dispute: Constitutionality of #16-2 Decision of Tbilisi Sakrebulo of 22 July 2005 “On Approving Separate Mandatory Map of Legal Zoning (Central Part of Tbilisi – Historical Zone, Zone of Landscape Regulation, Vake)” and the part of the Separate Mandatory Map of Legal Zoning (Central Part of Tbilisi – Historical Zone, Zone of Landscape Regulation, Vake) approved by the afore­men­tioned decision under which the plot of land owned by the claimant was assigned to the landscape protection zone of Tbilisi – in terms of Article 21(1-2) of the Constitution of Georgia.

Participants to the proceedings: Claimant, citizen of Georgia Akaki Mikadze Respondent’s representatives Manana Kobakhidze and Anna Tvaradze.

I

1. Citizen of Georgia Akaki Mikadze lodged a constitutional claim with the Constitutional Court of Georgia on 14 April 2008 (registration number 450). With the view of deciding about the admissibility for the consideration of the merits, constitutional claim #450 was referred to the Second Board of the Constitutional Court of Georgia under the Resolution of the President of the Constitutional Court of Georgia of 21 April 2008.

2. Under resolution #15.114.902 of Tbilisi Municipality Cabinet adopted on 10 July 1997 “On Allocation of the Plot of Land to citizen A. Mikadze in the Vake Disrtict, at the end of Marabdelebi Street for Individual Accommodation Construction”, the claimant was given a plot of land. Based on the Law of Georgia of 28 October 1998 “On Recognition of Non-Agricultural Land Used by Individuals and Private Law Legal Entities as Private Property”, A. Mikadze got the aforementioned plot of land registered in the Public Register (application #1350/98 of 08.12.98). The records of the Public Register stipulates individual accommodation construction as the function of the plot of land.

3. On 4 September 1997 the Department of Architecture and Perspective Planning Affairs of Tbilisi issued a construction passport, which granted the claimant the right to elaborate a project of an individual flat. Despite the aforementioned, the City Office of Urban Planning of Tbilisi City Municipality refused to issue an architectural-planning order due to the reason the plot was within a zone of landscape protection.

4. A. Mikadze challenged the administrative acts of the City Office of Urban Planning of Tbilisi City Municipality before the Board of Administrative Cases of Tbilisi City Court on 27 December 2005. A judge of the Board of Administrative Cases of Tbilisi City Court adopted a judgment on 24 March 2006 and upheld the claim. The impugned acts were declared null and void without deciding about the subject of the dispute. The City Office of Urban Planning of Tbilisi City Municipality (respondent) was ordered to study and evaluate the merits of the subject and to issue a new administrative act within a month after the judgment’s entry into force.

5. The Court observed in the reasoning part of the judgment that the respondent would have to take into account the following circumstances when issuing a new administrative act: 1. whether there is a normative act, which bans construction on the plot of land owned by the claimant? When applying #76 Resolution of the Central Committee of Communist Party and the Council of Ministers of the Soviet Socialist Republic of Georgia adopted on 29 January 1985, it should be ascertained whether the aforementioned act is registered in the State Register of Normative Acts and considered a normative act within the meaning of Article 56 of the Law of Georgia “On Normative Acts”; 2. whether an act of legal implication can be impugned to the claimant in the application of Resolution #15.114.902 of the Cabinet of Tbilisi City Municipality adopted on 10 July 1997, under which the plot of land has been allocated and accordingly if there is any ground giving rise to a legal credibility of the claimant. Since there was already Resolution #76 of the Central Committee of Communist Party and the Council of Ministers of the Soviet Socialist Republic of Georgia adopted on 29 January 1985, whether the administrative promise was illegal; 3. whether the construction is in compliance with the requirements of Article 3 of the Law of Georgia “On Architectural Activity”, with other legislative acts, normative acts and guidelines.

6. The City Office of Urban Planning of Tbilisi City Municipality issued #233 Order on 4 October 2006 refusing to issue A. Mikadze with construction permission. The refusal of the City Office of Urban Planning of Tbilisi City Municipality is based on #8-13 Decision of Tbilisi Sakrebulo adopted on 1 August 2001 “On the Use of the Territories of Tbilisi and the Rules for Landscaping Regulation” and #16-2 Decision of Tbilisi Sakrebulo adopted on 22 July 2005 “On Approving Separate Mandatory Map of Legal Zoning (Central Part of Tbilisi – Historical Zone, Zone of Landscape Regulation, Vake)”. The Order of the City Office of Urban Planning of Tbilisi City Municipality states that the plot of land owned by A. Mikadze - in accordance with #16-2 Decision of Tbilisi Sakrebulo “On Approving Separate Mandatory Map of Legal Zoning” - falls within the landscape protection zone, within which any kind of construction is banned.

7. The claimant believes that #16-2 Decision of Tbilisi Sakrebulo of 22 July 2005 and the part of the Separate Mandatory Map of Legal Zoning approved by this decision, which assigns the plot of land owned by him to landscape protection zone of Tbilisi, fails to comply with Article 21(1-2) of the Constitution of Georgia. The impugned provision interferes with the constitutional right to property in contravention of the conditions set for the limitation of the right to property by Article 21(2) of the Constitution of Georgia. In A. Mikadze’s opinion, he, as an owner, is deprived of the possibility to construct an individual house on his own plot of land, which amounts to the violation of the right to dispose of his property – the owner is unable to use his own property.

8. Under Article 21(2) of the Constitution of Georgia The restriction of the rights to property is only permissible in the cases determined by law and in accordance with a procedure established by law. In the claimant’s opinion this formal request is not met either, as his right to property was interfered with not on the basis of a legislative act but of a decision of a local self-government body – Sakrebulo.

9. Invoking Article 89(1)(f) of the Constitution of Georgia; Article 19(1)(e), Article 31, Article 39(1)(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 1(2), Article 10(1), Article 16 of the Law of Georgia “On Constitutional Legal Proceedings” the claimant requests the Constitutional Court 1. to admit and consider the merits of the constitutional claim; 2. to declare unconstitutional #16-2 Decision of Tbilisi Sakrebulo of 22 July 2005 “On Approving Separate Mandatory Map of Legal Zoning (Central Part of Tbilisi – Historical Zone, Zone of Landscape Regulation, Vake)” and the part of the Separate Mandatory Map of Legal Zoning (Central Part of Tbilisi – Historical Zone, Zone of Landscape Regulation, Vake) approved by the aforementioned decision under which the plot of land owned by the claimant was assigned to the landscape protection zone of Tbilisi – in terms of Article 21(1-2) of the Constitution of Georgia.

10. On 22 September 2008 the Second Board of the Constitutional Court of Georgia decided to hold an oral administrative hearing under #2/3/450 Recording Notice. The oral administrative hearing was held on 29 October 2008.

11. The claimant’s representatives maintained at the administrative hearing that the constitutional claim both in terms of form and substance met the requirements of the Law of Georgia “On Constitutional Legal Proceedings” and there was no ground for the refusal to admit it for the considerations of the merits.

12. The claimant’s representative M. Kobakhidze observed while the text of the impugned decision is not unconstitutional the impugned act approves Separate Mandatory Map of Legal Zoning, which assigns the plot of land, owned by the claimant to landscape protection zone. Stemming from this, the claimant ascertained the claim and confined it to the constitutionality of paragraph 1 of #16-2 Decision of Tbilisi Sakrebulo of 22 July 2005 “On Approving Separate Mandatory Map of Legal Zoning (Central Part of Tbilisi – Historical Zone, Zone of Landscape Regulation, Vake)” and the part of the Separate Mandatory Map of Legal Zoning (Central Part of Tbilisi – Historical Zone, Zone of Landscape Regulation, Vake) in terms of Article 21(1-2) of the Constitution of Georgia.

13. The impugned provision reads as follows: “Tbilisi Sakrebulo resolved to decide 1. Separate Mandatory Map of Legal Zoning (Central Part of Tbilisi – Historical Zone, Zone of Landscape Regulation, Vake), annexes 1,2”. The map at stake marks various zones, Tbilisi landscape protection zone among them too. In the opinion of the claimant’s representative, before the approval of the map the relevant circumstances should have been studied. Tbilisi Sakrebulo should have taken into consideration that the act under which the claimant was assigned the plot of land for certain purpose was valid. The plot of land and the purpose attached to it were registered in Public Register. In such case the claimant’s plot of land would have been assigned to the landscaping zone and not to landscape protection zone.

14. The claimant’s representative M. Kobakhidze maintained that #16-2 Decision of Tbilisi Sakrebulo adopted on 22 July 2005 does not determine any legal regime of landscape protection zone. The claimant does not have any claims regarding the legal regime of landscape protection zone; instead the claimant challenges the assignment of his plot of land to the aforementioned zone. An administrative act - #15.114.902 resolution of Tbilisi Municipality Cabinet adopted on 10 July 1997 granting the claimant leave to individual accommodation construction on the plot of land is still valid but its enforcement is impossible.

15. While adopting #16-2 Decision of Tbilisi City Sakrebulo of 22 July 2005 the Law of Georgia “On Preservation of Cultural Heritage” was in force, in M. Kobakhidze’s opinion, the claimant’s rights have not been infringed by the aforementioned law. The administrative body has never invoked the said law when refusing to grant leave to individual accommodation construction.

16. The claimant’s representative believes that if the constitutional claim is upheld, the map approved by the impugned provision will be held unconstitutional, Sakrebulo will be obliged to approve a new map under which the plot of land owned by the claimant will be moved from the landscape protection zone to a landscaping zone. A. Mikadze will therefore be authorised to erect constructions on the plot of land owned by him.

II

1. The claimant failed to adduce a single piece of evidence either in the constitutional claim or at the administrative hearing to consolidate the claim concerning the unconstitutionality of a provision or provisions regulating the legal regime of landscape protection zone in terms of Article 21(1-2) of the Constitution of Georgia. Moreover, the claimant maintains that he does not have any claims with regard to the legal regime of landscape protection zone, which in its turn provides for limitations for the construction concerned.

2. The claimant believes that his plot of land was assigned to Tbilisi landscape protection zone under the impugned provision, which resulted into the infringement of his rights. The Board believes it should scrutinise how accurately the claimant understands the contents of the impugned provision and whether his argumentation is based on misunderstanding. The claimant himself acknowledges that #16-2 Decision of Tbilisi Sakrebulo adopted on 22 July 2005 does not determine any legal regime of landscape protection zone. The claimant instead challenges the map being approved by the aforementioned decision of Sakrebulo, which marks the landscape protection zone of Tbilisi and the paragraph of the decision approving the map.

3. The establishment of landscape protection zone aims at preserving historical and cultural monuments. Originally, the term “natural landscape protection zone” was coined by the Law of Soviet Socialist Republic of Georgia of 29 December 1977 “On Preservation and Use of Historical and Cultural Monuments”. Under the said law the natural landscape protection zone and its maintenance regime were regulated in accordance with the procedure determined by the Council of Ministers of the Soviet Socialist Republic of Georgia. Any works on the land, construction, agricultural and other similar activities were prohibited in such a zone without a permission issued by the competent monuments preservation State agencies.

4. Landscape protection zone of Tbilisi was created under #76 Resolution of the Central Committee of Communist Party and the Council of Ministers of the Soviet Socialist Republic of Georgia adopted on 29 January 1985 “On the Measures for Further Improvement of the State Preservation of Historical Part of Tbilisi”. The second paragraph of the resolution determined the boundaries of Tbilisi landscape protection zone; and Annex 3 of the resolution defined the specifications of these boundaries. According to the specifications the following fall within the boundaries of Tbilisi landscape protection zone: the adjacent territories of Tabori Mountain, Tsavkisi Glen, Mtatsminda and Ku Lake. Annex 6 of the resolution approved Regulation “On Tbilisi Landscape Protection Zone”. The regulation banned any construction of durable buildings without a permission of monuments preservation State agencies.

5. On 25 June 1999 the Parliament of Georgia adopted the Law of Georgia “On Preservation of Cultural Heritage”. During the operation of this very law #16-2 Decision of Tbilisi Sakrebulo was adopted. From the moment the law came into force, the Law of Soviet Socialist Republic of Georgia of 29 December 1977 “On Preservation and Use of Historical and Cultural Monuments” became null and void. With the view of preserving numerous monuments, their complexes, ensembles, natural and artificial areas Article 32(1)(d) of the Law of Georgia “On Preservation of Cultural Heritage” provided for the only protection zone which was natural landscape protection zone. Under Article 31(2) of the Law the Ministry of Culture, Monuments Preservation and Sport of Georgia jointly with the Ministry of Economic Development of Georgia determined the protection zones. Under Article 77(2) of the Law of Georgia “On Preservation of Cultural Heritage” prior to the determination of protection zones in accordance with a joint order of the Ministry of Culture, Monuments Preservation and Sport of Georgia of the Ministry of Economic Development of Georgia, the relevant provisions of #68 Resolution of the Government of Georgia “On the Enforcement of the Temporary Regime Regulating the Landscaping of Tbilisi Historical Part” adopted on 11 August 2004 and other provisions of the legislation of Georgia - determining the protection zones of certain towns, immovable monuments and archaeological landmarks - were applicable.

6. #68 Resolution of the Government of Georgia adopted on 11 August 2004 established, in its turn, a temporary regime of regulating the landscaping. The temporary regime also applied to the natural landscape protection zones determined in accordance with #76 Resolution of the Council of Ministers of the Soviet Socialist Republic of Georgia adopted on 29 January 1985 and #3/97 Order of the Ministry of Culture of Georgia and #13 Order of the Ministry of Urbanisation and Con­struction of Georgia jointly adopted on 5 may 2003. These acts only permitted new constructions with the view of replacing strategic, severely damaged buildings and improving deteriorated urban layer.

7. Prior to the adoption of the above-mentioned resolution, #22 Resolution of the Government of Georgia adopted on 13 April 2004 “On Introduction of Special Regime concerning New Constructions in the Protection Zones of Tbilisi Historical Part” suspended the procedure of agreeing documentation on new construction projects and issuing construction permissions in natural landscape protection zones of Tbilisi, determined by #76 Resolution of the Council of Ministers of the Soviet Socialist Republic of Georgia adopted on 29 January 1985, #3/97 Order of the Ministry of Culture of Georgia and #13 Order of the Ministry of Urbanisation and Construction of Georgia jointly adopted on 5 may 2003.

8. On 8 May 2007 the Parliament of Georgia adopted the Law of Georgia “On Cultural Heritage”. Upon the adoption of the aforementioned law the Law of Georgia “On Preservation of Cultural Heritage” was invalidated. The Law of Georgia “On Cultural Heritage” assigned historical landscape protection zones to the general protection zones of cultural heritage. Under Article 34(5) of the Law, general protection zones are established by resolutions of the Government of Georgia, in agreement with local self-government bodies, based on the submission of the Ministry of Culture, Monuments Preservation and Sport of Georgia. Article 39 of the Law of Georgia “Cultural Heritage” aims at determining historical landscape protection zones and legal regime. The Article provides for the specifications of historical landscape protection zone, the purpose of its determination, the maintenance rules, the forms of construction and agricultural activity allowed therein. Individual accommodation construction is not on the list of those activities, which can be conducted in a historical landscape protection zone. Under Article 59(3), the legal acts determining the protection zones of cultural heritage being adopted prior to the enforcement of the Law of Georgia “On Cultural Heritage” and prior to their registration in accordance with the procedure established by the aforementioned law, were deemed to be in compliance with law.

9. It appears from the survey above that the landscape protection zones are not a novelty in the legal system of Georgia. It was adopted decades ago and remains to be valid with minor terminological modifications. It is especially noteworthy that all three legislative acts applicable in the field of historical and cultural heritage at different times vested the central and not local State bodies with the authority of determining landscape protection zones. It is also evident that the competent bodies, when discharging the authority vested by legislation, established and amended the landscape protection zone of Tbilisi. Stemming from the above-mentioned the claimant is wrong in understanding the impugned provision as the one determined the scopes of the historical landscape protection zone of Tbilisi.

10. There are cases in the jurisprudence of the Constitutional Court, where a claimant appears to have a wrong understanding of an impugned provision. In such a case the argumentation, which a claimant presents based on a wrong perception of the impugned provision is not deemed by the Constitutional Court to be evidence provided for by Article 16(1)(a) of the Law of Georgia “On Constitutional Legal Proceedings” (#2/3/412 Ruling, II-9; #2/4/420 Ruling, II-7). The Board is satisfied that the aforementioned approach is entirely appropriate and corresponds with the case raised by #450 constitutional claim.

11. The survey of the legislation in the field of history and culture also showed that the claimant’s argumentation is based on wrong expectations. In the opinion of the claimant’s representative, in case of upholding the constitutional claim Tbilisi Sakrebulo will be obliged to approve a new map and move the claimant’s plot of land in the landscaping zone. The upholding of the constitutional claim will not have such a consequence due to that objective reason that determination of landscape protection zone and its amendment is not within the competence of Tbilisi Sakrebulo and the acts which determine the zone will continue to apply.

12. The argumentation presented by the claimant, which are based on the wrong expectations, in the light of the established position of the Constitutional Court, does not meet the requirements of Article 31(2) of the Organic Law of Georgia “On the Constitutional Court of Georgia” and Article 16(1)(e) of the Law of Georgia “On the Constitutional Legal Proceedings” (#2/8/448, II-7,8,9). The Board remains on this position in terms of #450 constitutional as well.

13. There might be a question as to why Tbilisi landscape protection zone was marked on the Separate Mandatory Map of Legal Zoning under #16-2 Decision of Tbilisi Sakrebulo of 22 July 2005. The Board relates this issue to the question to what extent the formal requirements of Article 21(2) of the Constitution of Georgia were eventually violated. When adopting #16-2 Decision by Sakrebulo, the Law “On Preservation Cultural Heritage” was applicable. Under Article 232(3) of the law, “the system of protection zones of urban monuments and historical area presents an integral part of the general plan, the project of detailed planning and landscaping of the settlement”. Nowadays, no such provisions are contained in the legislation on urban construction. As it appears, local self-government body was not even obliged to provide for a landscape protection zone in the acts on urban construction.

14. Sakrebulo did not substitute the legislator when limiting the right to property. It did not establish either the legal regime for landscape protection zone of Tbilisi or its boundaries. Sakrebulo, stemming from the legal requirements, marked the landscape protection zone on the map approved by its decision in the way it had been established by competent State authorities. It is beyond the competence of the Constitutional Court of Georgia to study and pronounce itself on how accurately, technically speaking, landscape protection zone was marked on the map and whether there was any mistake made meanwhile.

15. The Constitutional Court of Georgia is not authorised to review whether Tbilisi Sakrebulo should have taken into account when adopting the impugned provision the fact that the claimant had been given a plot of land for a specific purpose, which later was registered in the State Register. These issues are governed by legislation of Georgia and not by the Constitution of Georgia. Stemming from this, the alleged failure of Tbilisi Sakrebulo to meet legal requirements when adopting the decision cannot be the subject of a dispute before the Constitutional Court of Georgia. To this effect, there are other potential legal remedies available to the claimant.

16. The claimant’s representatives claims that the claimant’s plot of land was marked in the landscape protection zone of Tbilisi, whereas the administrative act, which granted the claimant leave to individual accommodation construction is still in force but cannot be implemented. The Board already held that legislation did not entitle the local self-government bodies to determine landscape protection zone and mark specific plot of lands therein. The Constitutional Court is not competent to pronounce itself on the alleged failure of Tbilisi Sakrebulo to comply with legal requirements and on the implementation of an administrative act.

17. The Constitutional Court is not in the position to review to what extent the administrative body’s refusal to leave to construction was legal and founded. This would amount to the review of legality instead of constitutionality if the Constitutional Court embarked on examination whether legal provisions were invoked in the adoption of an administrative act or if the instructions of the Board of Administrative Case of Tbilisi City Court were followed in the administrative procedure at stake.

18. In the light of the considerations in the above paragraphs of the present ruling, it can be concluded that #450 constitutional claim should not be admitted for the consideration of the merits in accordance with Article 18(a,c) of the Law of Georgia “On Constitutional Legal Proceedings”.

III

Stemming from the above-mentioned, in the application of Article 21(2), Article 31(2), Article 43(5,8) of the Organic Law of Georgia “On the Constitutional Court of Georgia”; Article 16(1)(e), Article 18(a,c) of the Law of Georgia “On Constitutional Legal Proceedings”

The Constitutional Court of Georgia
resolves:

1. Not to admit #450 constitutional claim (citizen of Georgia Akaki Mikadze v. the Parliament of Georgia) for the consideration of the merits;

2. The ruling shall be final and not subject to appeal or review;

3. A copy of the ruling shall be dispatched to the parties.

Board Members:

Besik Loladze,

Otar Sichinava,

Lali Papiashvili,

John Khetsuriani.