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Embezzlement of state property or historical justice?

07.02.2021

A dispute over Forest Fund lands

Natia Parekhelashvili, humanrights.ge

An active process of excluding territories from the Forest Fund and transferring their ownership to private owners has been observed in the last few years throughout Georgia. The legal grounds for the registration of forest lands in the name of private persons are the decisions of the so-called "recognition commission" established under self-government bodies, based on the archive notes on the property. The above document contains private information and is not made public. However, it is often impossible to present even in the Court, which calls the existence of such grounds into question.


From the environmental point of view, adjustment of forest boundaries should be based on two fundamental concepts – maintaining the natural environment and inviolability of private property. According to Rezo Getiashvili, Forest Program Coordinator at CENN, it is desirable that both concepts are considered in the decision-making, which is made possible by various forms of ownership and use stipulated by the new Forest Code. "However, these concepts are not always compatible, and we should take it as a fact, both in our country and elsewhere in the world, though the purpose of the government control systems is just finding responsible solutions of such conflicts. Registration of natural forests as private property must be based on solid legal grounds and preliminary evaluation of their conservation value. In certain cases, the Government can use the versatile tools for private property protection, compensation, and even replacement", says Rezo Getiashvili.

The current forest boundaries' adjustment system does not imply the forest management body's participation in the process. This is a significant problem for effective management of Georgia's forests and includes both the destruction of certain forest areas and fragmentation of forest areas, and the threat of damage to natural ecosystems of a much larger scale.

Rezo Getiashvili, CENN: "In our case, there's a completely opposite practice, when environmental structures do not participate in the decision-making. Excluding forests from the Forest Fund takes place independently from the forest management body responsible for both the expert and the legal grounds. Hundreds of similar decisions are taking place in total disregard of the environmental concept. Moreover, a reasonable doubt arises that none of the two concepts are abided by, and we may be dealing with embezzlement of state property in the name of restoration of historical justice".

The public agencies' varying positions also evidence the lack of a unified vision of the Forest Fund areas. Public Registry often registers the lands belonging to the Forest Fund to private owners without even providing any information to National Forestry Agency. One of the most vivid examples of the above is the fact of transfer of a land plot with the area of 2200 square meters (cadastral number 71.64.80.112) in village Zemo Bulachauri of Dusheti Municipality that had previously belonged to the Forest Fund, into the ownership of a citizen, Ms. L. K. After the above fact became known to the Human Rights Center and CENN, the former filed a complaint to Mtskheta District Court and requested: 1) invalidation of the decision of the National Agency of Public Registry (NAPR) based on which the land in the contour of the woodland was registered to a private person and 2) assigning the land plot back to the Forest Fund.

Aleksi Merebashvili, lawyer of the Human Rights Center: "At the end of September of the current year, we appealed to Mtskheta District Court concerning a registration conducted in village Zemo Bulachauri, and requested invalidation of the registration act for the land plot and to assign land plot back to the Forest Fund."

We asked Aleksi Merebashvili to assess the position of NAPR too. As it appeared, the Agency is confident in the validity of the administrative-legal acts issued based on its decision.

"This is exactly what we are disputing in the Court. The Agency has formally fulfilled the requirements of the law, though in reality, the reason why it registered the land plot belonging to the Forest Fund into the ownership of a private person is not justified. Besides, National Forestry Agency was not involved in the registration process. At the same time, it produced in the Court a situational layout which once again proved that the object registered to the physical person was not the one pertaining to its traditional use, but the one that has historically been under the forestry agencies' management and use," stated Mr. Merebashvili.

Davit Damenia, Head of Legal Department of National Forestry Agency, expresses hope that the above land plot will be returned to the government-managed Forest Fund.

"We in the Forest Agency believe that since these particular land plots have been a part of the Forest Fund since 1986, the National Forestry Agency should at least have known about the administrative proceeding taking place in the period of its exclusion from the Fund so that it could study the documents and express its position. Our position coincides with that of the Human Rights Center, which claims to return the excluded territory to the Forest Fund through the Court. National Forestry Agency is involved in the dispute as a third party (interested party). We have submitted our position in a written form to the Court and hope that, in a joint effort, we will manage to return the land plots to the government-controlled Forest Fund", states Mr. Damenia.

Similarly to NAPR, neither L. K. agrees with the claims of the Human Rights Center. According to her statement, the above land plot has been a family property and was included in the Forest Fund only due to the Government's resolution dated by 4 August 2011. It also appears from her statement that National Forestry Agency was not involved in the decision-making process concerning the land plot registration and the decision was made by NAPR without the Agency's participation. 

"The property right is extremely important, and it should be protected to the maximum. However, this must be supported by relevant and correct legal grounds, and no damage must be done to the forest instead", says Davit Damenia.

"According to the land owner's position, the registered land plot belonged to her/his testator, though no evidence has been presented. The location of the land plot, an orthophoto and the fact that it has been within the boundaries of the Forest Fund gives us grounds to assume that embezzlement of the plot took place through illegal registration. Therefore, we expect that the Court will fully satisfy the claim, annul the illegal registration, and return the land plot to the Forest Fund", states Alexy Merebashvili, Human Rights Center Lawyer.

Forest Fund boundaries are marked in green, while the red line signifies the cadaster border of the land plot.

As of today, the parties are awaiting the appointment of the date of a court hearing. Before the final decision, the right to the land plot ownership is suspended.

It is noteworthy that apart from this particular case, there are hundreds of land plots that have been registered. This was stimulated by a simplified rule for legalization activated on 1 January 2020, which became the basis for the "recognition commission" established under the executive self-government bodies to issue land plots based on citizens' appeals. To reduce the scale of the problem, the Government needs to respond immediately and form a system where both the legal interests of private owners and the inviolability of Forest Fund's lands are protected.



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