During his speech at the session of the Parliament of Georgia, the Parliamentary Majority MP, Paata Kiknavelidze, talked about the bill initiated by the Legal Issues Committee of the Parliament of Georgia which envisages the abolition of the practice of eviction without a court warrant as concerns individuals illegally occupying an immovable property. "We are the only country in the whole world which allows the eviction of a person without a court warrant," said Mr Kiknavelidze.

We attempted to look into the practices of European countries, the USA and other developed countries of the world as concerns eviction.

According to the 8 December 2006 amendment to the Civil Code of Georgia, Point 3 was added to Article 172 of the Code in which a legal owner of an immovable property is authorised to demand the cessation of activity by anyone preventing him from exercising ownership of the said property. If the activities of preventing ownership continue, the legal owner is able to request the termination of such actions from appropriate legal structures without a court warrant upon the basis of a document confirming the legal ownership. The main aim of adding Point 3 to the Civil Code was to facilitate a timely and more effective protection of private property.

Taking this amendment into account, a sub-point was also added to Article 9 of the Law on Police of Georgia which says that the police have the right to terminate the actions preventing an individual’s legal ownership of an immovable property without a court warrant based upon a document confirming the legal ownership. Directive No. 747 of the Minister of Internal Affairs of Georgia observed these amendments, describing in detail the rules to be followed by the police for terminating activities of the prevention of ownership of a private immovable property.

According to the new legislative initiative now under consideration at the Parliament of Georgia, Point 3 of Article 172 of the Civil Code of Georgia which, together with Sub-Point B of Point 2 of Article 17 of the Law on Police of Georgia, providing for eviction from private property by the police, will be abolished.

According to the explanatory note to the bill, the reason for presenting these amendments is the existence of an important flaw in the acting legislation which is associated with eviction from private property by the court or the police. In addition, the practice of eviction by the police contradicts Point 2 of Article 20 of the Constitution of Georgia according to which no one is authorised to enter the flat or any other private property against the will of the current owner unless he has a court warrant or there is an urgent situation as determined by the law. Despite this, the practice of eviction by the police involves entering the flat or any other private immovable property against the will of the current owner using physical coercion, special equipment or, in some cases, firearms. According to the belief of the initiators of the bill, the acting legislation is also in contradiction to Article 21 (the right to private property) of the Constitution of Georgia, the common legal order system and the legislation and practice of European countries.

FactCheck’s study found that the issue of eviction is very well regulated in France, the UK, Germany (p. 2), Latvia (p. 23), Lithuania, Spain and the USA (for example, the states of Nevada, Illinois, Tennessee, Massachusetts, Georgia and Texas)

and the regulations are quite similar in almost every country. Specifically, the prevalent practice envisages the warning of an individual of an eviction, providing a certain amount of time beforehand and only then addressing the court. It is only after the decision of the court that it becomes possible to evict a person from a property, including by the use of coercion.

The 27 July 2010 decision of the European Court of Human Rights on the case of Saghinadze and Others against Georgia concerns claimants who are internally displaced persons evicted from a cottage owned by the Ministry of Internally Displaced Persons from the Occupied Territories, Accommodation and Refugees of Georgia in 2004. They had been living in the cottage since 1994 based upon a verbal order of the Minister. The Court stipulated that according to the Civil Code of Georgia and the Law of Georgia on Internally Displaced Persons, the only way for the Ministry to get the cottage back was by court trial upon the basis of the adversarial principle (Paragraph 111). The decision states that the adversarial process would have enabled the parties to use effective measures against arbitrary actions. Consequently, this process should have preceded the eviction.

It should be pointed out that there can be various reasons for an eviction. The practices studied by FactCheck

were based upon three main reasons: 1) the transfer of real estate from the old to the new owner due to a debt after which the previous owner keeps using the property against the will of the legal owner, 2) the relation between the landlord and the tenant when, despite the fact that the tenant does not have the legal rights to use the property, he continues using it, and 3) the problem of so-called squatters which implies the unlawful settlement in someone else’s property. In the majority of cases, as in the aforementioned countries, despite the different reasons for an eviction, the main procedure for evicting an individual requires a court decision. We could not find any country which is against this practice in any of the information uncovered in our study.

Of additional note is that the bill formulated by the Legal Issues Committee of the Parliament of Georgia has its opposing parties which believe that the argumentation for the necessity of such amendments is insufficient. Transparency International Georgia points out that there is a serious risk that the new legislation will fail to protect the rights of mortgagees and could do exactly the opposite. It is possible that the legislation will only delay the process of eviction and the result will still be the same. In addition, legal property owners could use Article 160 of the Criminal Code of Georgia and commence criminal proceedings against individuals unlawfully occupying their or someone else’s property. Such an interpretation of the law will further complicate the situation for mortgagees. In addition, according to a statement from Transparency International Georgia, the bill will have a negative effect upon commercial banks and micro-finance organisations operating in Georgia. The banking sector will be forced to tighten the procedures for giving loans which will naturally make banking products more expensive. This, in its turn, will have a direct negative influence upon the national economy and the amount of investments.

The Business Ombudsman’s Office has also stated its negative attitude towards the proposed bill. The Office says that the administrative (without court) rule for terminating activities preventing the use of real estate or other types of immovable property by their legal owners is an effective means of protecting private property and abolishing this rule will only worsen the legal situation for the owners. Specifically, it will increase the expenses incurred by businesses and delay the process of protecting their rights.

According to the statement of the President of the Association of Banks of Georgia, Zurab Gvasalia, the state is currently not ready for these changes. The judicial system and enforcement agencies do not have the capacity to effectively implement this project. Moreover, they are unlikely to have this capacity in the near future as well.

Conclusion According to the MP’s belief, international practise is the main reason for adopting this bill in which it inadmissible to evict a person without a court warrant. As the explanatory note to the bill states, European legal practice does not evict individuals without an appropriate decision by a court. FactCheck’s

study showed that such a practice is indeed prevalent in most European countries, the USA and other developed countries.

It is true that our research failed to identify a single country which acts against this practice; however, our study also highlighted the negative effects of the procedures associated with the proposed legislative changes (delayed processes, large expenses, the limitation of the right of private property and so on).  According to the position of Transparency International Georgia and the Business Ombudsman, such changes will harm the banking sector in developing countries such as Georgia.

Paata Kiknavelidze did not focus upon these risks in his statement. Hence, his statement is factually correct but lacks the aforementioned context.

Consequently, FactCheck concludes that Paata Kiknavelidze’s statement is MOSTLY TRUE.

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