EHRM, 17-12-2019, nr. 25601/12

The first applicant was born in 1963. The second applicant was born in 1955 and lives in Tbilisi.

On 31 October 2003, together with four other individuals and a company, the applicants acquired ownership of commercial premises situated in Tbilisi near the entrance to Gotsiridze metro station (‘the building’) on a plot of land measuring 154 sq. m. The plot of land was registered in the Public Registry as being jointly owned by the above-mentioned individuals and the company. The building on the land, which was also registered as being jointly owned by those persons, had a total area of 494 sq. m: the first applicant's property measured 76.82 sq. m (45.8 sq. m on the basement level and 31.02 sq. m on the ground floor), and the second applicant's property measured 40.74 sq. m (25.67 sq. m on the basement level and 15.07 sq. m on the ground floor).

The case-file material indicates that the first applicant paid 12,500 Georgian laris (GEL — approximately 5,500 Euros (EUR)) and the second applicant paid GEL 12,000 (approximately EUR 5,300) for their respective shares in the building and their rights to the plot of land on which it was located. Various sources, including the financial stability reports issued by the National Bank of Georgia, indicate a significant increase in the value of real estate in Tbilisi between 2003 and 2007.

The building had been built on the basis of a permit obtained on 11 July 2002, and use of the building was approved by the relevant municipal authority on 28 May 2003.

On 29 January 2007 the applicants applied to the Tbilisi City Hall (‘the City Hall’) with a request for information about rumoured demolition plans relating to the building and any legal grounds for such demolition. On the same date the Public Defender applied to the mayor, noting that any demolition of the building, which constituted property duly owned by the applicants and other private parties, should be carried out in accordance with the law and be based on a written order. It does not appear that either the applicants or the Public Defender received a response.

On 30 January 2007 the Supervision Service of the City Hall (‘the Supervision Service’) demolished the building with a bulldozer. Media coverage of the events suggested that the demolition of the building formed part of a campaign initiated by the City Hall to demolish buildings which had been either unlawfully constructed or unsightly.

On 27 February 2007 the applicants instituted judicial proceedings, stating that the Supervision Service had demolished their property without any legal grounds, and claiming damages. They presented the findings of a private assessor in respect of the value of the property. According to that assessor's report, the overall market value of the basement floor and the ground floor of the commercial premises, measuring 229.73 sq. m, had been 760,000 United States dollars (USD — approximately EUR 585,300). Given that the building concerned no longer existed, the expert gave a tentative price based on the value of an ‘analogous hypothetical building’.

On 1 May 2008 the first-instance court commissioned an expert examination with respect to the value of the demolished property. Among other things, the court asked the experts to determine the market value of the demolished property as of 30 January 2007. The resulting report — no. 1765/15/19, dated 30 October 2008 — was written by two experts from the National Forensic Bureau (‘the first NFB report’). The report concluded that the total market price of the building at the time of its demolition would have been GEL 1,068,975 (approximately EUR 497,400). However, as the building had no longer existed at the time of the assessment, and certain documents concerning the materials used for its construction had not been available, it had been impossible to describe the real picture, and the experts had given guide prices (საორიენტაციო ფასი). The experts also noted that they had not had specific data (evidenced by documents) regarding information concerning the sale and purchase of similar buildings.

On 8 July 2009 the first-instance court ordered another expert examination in order to calculate the market price of the building excluding the value of the plot of land on which it had been located, as the applicants had retained ownership of the land. The resulting report — no. 1363/04/19 of 17 September 2009, issued by an expert from the National Forensic Bureau (‘the second NFB report’) — concluded that the value of the plot of land in question was GEL 50,820 (approximately EUR 23,648), taking GEL 330 (approximately EUR 153) as the market price of each square metre. Therefore, the total market value of the building at the time of its demolition, without taking into account the value of the plot of land, would have been GEL 1,018,155 (approximately EUR 473,790): the first applicant's share being GEL 187,501.74 (approximately EUR 87,252), and that of the second applicant being GEL 133,862.20 (approximately EUR 62,291).

On 9 November 2009 the City Court found that the demolition of the commercial premises had been unlawful. It noted the following:

In making an award, the first-instance court noted that the applicants had not been deprived of the plot of land, therefore they should only be compensated for damage relating to the market price of the building. Relying on the findings of the second NFB report (see paragraph 14 above), the court allowed the applicants' claims in part, and granted them damages as follows: the first applicant was granted GEL 187,501 (approximately EUR 87,252) and the second applicant was granted GEL 133,862 (approximately EUR 62,291). The second applicant was also granted the equivalent of USD 550 (approximately EUR 417) per month in the national currency in respect of the period from 1 February 2007 until the judgment was finally enforced, in relation to the rent he would have received under a rental agreement concluded on 1 August 2006 in respect of his part of the building. Similar requests by the first applicant and the second applicant in respect of a lease agreement concluded with another party were dismissed for lack of sufficient evidence.

On 1 February 2010 the applicants lodged an appeal with the appellate court. Among other things, they disagreed with the amount of the award made in respect of them, and with the lower court's assessment of the evidence in that connection.

On 19 October 2010 the City Hall asked the appellate court to allow it to commission an expert examination by a panel of experts, owing to the fact that the State expert who had issued the second NFB report which the lower court had relied on to award damages had used a different method of calculating damage in other proceedings concerning similar facts, namely calculating the value of a property by means of material obtained as a result of its demolition. On the same date the appellate court adjourned the proceedings and instructed the City Hall to produce the results of the expert examination.

On 19 October 2010 the City Hall addressed the following request to the National Forensic Bureau:

The resulting report of the panel of three experts (including the author of the second NFB report) — no. 15737/10/1, produced between 20 October 2010 and 10 December 2010 (‘the third NFB report’) — contained the following conclusions:

The descriptive part of the third NFB report noted that, in a different expert examination, the value of the building at no. 2 Tsotne Dadiani Street had been calculated on the basis of adding the value of the plot of land to the value of the material obtained as a result of the demolition of that property.

As concerns the applicants' property (the building near the Viktor Gotsiridze metro station in Tbilisi), the third NFB report noted the existence of the second NFB report, without elaborating on the latter's findings regarding the value of the property in question. The authors of the third NFB report took note of letters from the Architecture Service of the City Hall, according to which only the underground side of the plot of land measuring 154 sq. m could technically have been used, without elaborating further. The experts then addressed the technical aspects of the building itself, as described in the second NFB report, and, on the basis of that information, concluded ‘the value of the [construction] material obtained as a result of the demolition … is USD 20 [approximately EUR 15] per square metre, hence the value of 494 sq. m is equivalent to USD 9,880 [approximately EUR 7,490] …’ The third NFB report concluded by explaining the experts' method for calculating ‘the market price of material obtained as a result of the demolition of immovable property.’

On 15 January 2011 the applicants obtained a linguistic report from a philology expert. The expert had been asked to assess whether the findings of the third NFB report (see paragraph 20 above) had been relevant to the questions which the experts had been asked. The philology expert noted that while the two questions put to the experts had concerned two issues: one related to ‘the value of material’ and the other related to ‘the value of a commercial property’, essentially different things, ‘the answer in respect of both questions referred only to the value of the material obtained as a result of the demolition’. Therefore, the philology expert concluded that the second question, which had concerned the determination of the value of the building, had not been answered.

On 21 January 2011 the Tbilisi Court of Appeal agreed with the lower court's finding that the demolition of the applicants' property had lacked any legal basis (see paragraph 15 above), and upheld the first-instance court's award in respect of the lost income (see paragraph 16, in fine), but overturned the lower court's award in respect of pecuniary damage in so far as the value of the demolished building was concerned. The appellate court granted the applicants reduced damages: the equivalent of USD 1,536.40 for the first applicant (approximately EUR 1,164), and the equivalent of USD 814.80 (approximately EUR 617) in the national currency for the second applicant. The appellate court based its decision on the third NFB report produced by the panel of experts (see paragraph 20 above). In particular, it noted the following:

As concerns the linguistic report adduced by the applicants (see paragraph 23 above), the appellate court noted the following:

The court reached the following conclusion regarding the value of the demolished property:

On an unspecified date the applicants appealed against the Court of Appeal's judgment. The case-file material does not contain a copy of their appeal on points of law.

On 12 September 2011 the Supreme Court of Georgia declared the appeals on points of law inadmissible. On 21 October 2011 the decision of the Supreme Court was served on the parties.

At the material time, Article 105 (evaluation of evidence) of the 1997 Civil Procedure Code (‘the CPC’) provided that the judges of a court had to evaluate evidence in accordance with their inner conviction, on the basis of a ‘comprehensive, full and impartial examination of the evidence’. A judgment had to set out the considerations underpinning that inner conviction.

In accordance with Article 162 § 1 of the CPC,

Article 172 of the CPC provided that an expert opinion was not binding upon a court, which made its assessment in accordance with Article 105 of the Code, but a refusal to admit an expert report had to be duly reasoned.

Article 173 of the CPC provided as follows:

Article 423 § 1 (g) of the CPC provides for a right to request the re-opening of civil proceedings based on newly discovered circumstances if ‘there exists a final judgment (decision) of the European Court of Human Rights finding a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms and/or its Protocols in relation to that case, and the violation found [by the European Court] originates from the judgment to be reviewed.’

The Court notes at the outset that the first applicant, Ms Lali Khizanishvili, died after lodging the application on 20 April 2012, and that her mother, Ms Luba Khizanishvili, expressed the wish to continue the proceedings before the Court (see paragraph 5 above). The Government did not dispute that Ms Luba Khizanishvili had standing to pursue the application in the first applicant's stead.

The Court reiterates that in cases where an applicant has died in the course of the proceedings, it has previously taken into account the statements of the applicant's heirs or close family members expressing the wish to pursue the proceedings before the Court (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014; Fartushin v. Russia, no. 38887/09, §§ 31–34, 8 October 2015; and Paposhvili v. Belgium [GC], no. 41738/10, § 126, ECHR 2016). In view of the above, and having regard to the circumstances of the present case, the Court accepts that the first applicant's mother has a legitimate interest in pursuing the application, in so far as it has been lodged by the first applicant. However, for reasons of convenience, the text of this judgment will continue to refer to Ms Lali Khizanishvili as ‘the first applicant’, although her mother is today to be regarded as having this status.

The applicants complained that the domestic courts had failed to afford them adequate redress for the unlawful demolition of their property, in breach of Article 1 of Protocol No. 1 to the Convention, which reads as follows:

The Government contested that argument.

Article 41 of the Convention provides: