Code and Administrative Procedural Code on January 1, 2000, the case was transferred to the District Court of Krtsanisi-Mtatsminda.
During the first preparatory court hearing, the problem of time limitation in which to bring the action was resolved. LSA proved that the plaintiff had no information about the issuance of the administrative act (the permits were never published), and had no chance to be involved in the decision-making process, a violation of his legal rights. According to article 361(2), chapter XLIV of the Civil Procedural Code of Georgia, time limitations for citizens’
rights to appeal in court must be counted from the day when a citizen is informed about his right to appeal to court. Additionally, the citizen must be given the name and address of this court. Thus, the limitation of action should have been counted from the day the plaintiff received an official copy of the permits from the administrative agency in response to his letter of inquiry. The judge ruled in favour of the plaintiff on this point.
On the basis of the Procedural Legislation of 1999, the plaintiff had the right to ask the court to issue a permanent injunction invalidating the permit for reconstruction.
However, if the plaintiff lost the case, the developer would require compensation for damages from the plaintiff.
Therefore, the plaintiff would have chosen not to seek a permanent injunction. However, under the new Administrative Procedural Code, article 29, challenging an administrative act results in an automatic injunction suspending the act. This was applied in the present case.
Final outcome
The judicial proceeding had great resonance with the general public. Due to the consequent media investiga-tions and public reaction against the hotel construction, the local authority took effective action. The permit for construction was withdrawn and the senior architect (the public servant who issued the permit) of Tbilisi was dismissed. However, LSA wanted to overturn the privatisa-tion act as well.
Success seemed to be at hand when an unforeseen complication developed. The plaintiff withdrew the suit, explaining that unknown persons had terrorised his family and demanded that he back down. The plaintiff refused to pursue the suit. Under article 22 of the new Administrative Procedural Code, any person (including an NGO) can chal-lenge any administrative act, provided that it can prove a sufficient interest. That was almost impossible in this case, and LSA could therefore not initiate a new suit as an NGO.
LSA hoped to find a new person to serve as a plaintiff with standing. However, the problem with time limitation remained.
Case study analysis
The case was remarkable in that the rules for standing changed in the middle of the case. In 1999, NGOs were not
entitled to sue regarding administrative acts. Under Chapter XLIV of the old Civil Procedural Code, only citi-zens were entitled to sue regarding an administrative act, and only when the administrative act violated the citizen’s legal rights. The plaintiff had to prove a sufficient interest in the case and that his rights had been violated. The plain-tiff had to pay court costs and overcome the barrier of the time limitation for bringing an action. The court held that the public agency did not inform the plaintiff about his right to appeal the administrative acts to court.
NGOs also have problems with court costs. According to article 9(4) of the Administrative Procedural Code of Georgia, failure to pay court costs by a physical person does not hamper the consideration and decision of a case.
NGOs have no such privilege and have to pay court costs (usually advance payment is required). LSA did not have funding for this case. It provided free legal service and Friends of the Earth Georgia paid the court costs.
Intimidation and harrassment of the plaintiff were unfor-tunately successful in this case, and no action was taken to prevent this from happening or to punish the perpetrators.
The standing of the NGO to challenge the administra-tive acts in its own right, under the new Administraadministra-tive Procedural Code of Georgia, has been greatly enhanced by the coming into force of the Aarhus Convention, since the NGO would not have to prove a sufficient interest to have standing.
Comments of participants in the process
“We achieved some results in this case, including having the permit for construction withdrawn and ending construction activity. But we were not completely successful because the plaintiff dropped his suit. This outcome might never have happened if under our legislation, NGOs were entitled to sue regarding administrative acts without proof of suffi-cient interest. Once the Aarhus Convention is enforced, environmental NGOs will not have this kind of access to justice problem, because based on article 9 of the Aarhus Convention we will no longer need to prove sufficient interest.”
— Merab Barbakadze, lawyer from the Legal Society Association.
“Vake Park is part of the cultural and environmental heritage of Georgia. In this regard, the value of the lawsuit against construction of the hotel cannot be underestimated. Despite the fact that the court never issued a final decision, the case put pressure on local authorities to take effective action against violations of law. The problem of finding a plaintiff with standing is the main issue for Georgian environmental NGOs. Too often we have been unable to initiate a
court case because we cannot prove a sufficient interest in the case. Finding citizens to serve as plain-tiffs with standing creates lots of problems for them (because of problems with the community or black-mailing) as well as for us, as we are never sure how far he or she will go. With the Aarhus Convention having entered into force on October 31, 2001, the problem will hopefully be solved.”
—Manana Kochladze
Contacts
Merab Barbakadze, Executive director Legal Society Association
Flat 54, Building-32, 0138, Varketili-3 Tbilisi
Georgia
Tel: +995-32-797-279 Mobile: +995-99-508-514 E-mail: als@ip.osgf.ge
Website: www.interconnection.org/lsa Manana Kochladze
19 Ateni str 380079 Tbilisi Georgia
Tel: +995-32-291-006 Fax: +995-32-291-001 E-mail: manana@wanex.net
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