• Because of the act on allocation of land for the nation-al park, herders were not able to use traditionnation-al grass-lands and the resident citizens could not use the forests to cut firewood.
• The Kharagauli District is a high mountainous region and, according to the Constitution, the state has to pro-vide maximum social support to the population of high mountainous villages.
• The state is limiting the population’s rights.
Consequently, the administrative act violates the legal rights of citizens and has to be abolished.
The judge found the plaintiff’s arguments to be accept-able and based his decision on them. On March 30, 2001, the Krtsanisi-Mtatsminda District Court pronounced the abolishment of the administrative act on the allocation of land to the national park.
The Legal Society Association (LSA) was requested by the WWF to help the State Committee of Georgia on Land Use and Protection to file an appeal against the decision of the Krtsanisi-Mtatsminda District Court. LSA was not entitled to appeal the court decision as an NGO because it was not a party involved in the case. LSA received power of attorney from the chairman of the State Committee of Georgia for Land Use and Protection (the chairman of this committee is a state minister of Georgia, Mr. G. Arsenishvili).
Neither the State Committee of Georgia for Land Use and Protection nor the Legal Society Association had funding for this case. LSA provided free legal support to the land-use committee, taking an appeal to the Tbilisi Regional Court on May 18, 2001, in hopes of reversing the Krtsanisi-Mtatsminda District Court decision ordering the administrative act to be abolished.
Standard on appeal
To reverse the Krtsanisi-Mtatsminda District Court deci-sion, according to the Procedural Code, LSA had to prove on appeal that:
• the plaintiff did not have a sufficient interest in this case; and/or
• the court had inadequate legal support for its decision, therefore the decision was illegal and groundless.
LSA intended to argue the following on appeal.
Standing
According to the Administrative Procedural Code of Georgia (article 22), an administrative act can be appealed in court only when this act has an impact on the personal legal rights of the plaintiff. Thus, the plaintiff has to prove his sufficient interest in the case.
In court, the plaintiff claimed to be the chairman of the activist group of the local community, but he had no power
of attorney from them. Consequently, he was representing only his personal interests. The plaintiff resided in the Kharagauli District, but he was not a herder and the deci-sion did not impact his rights. Furthermore, reasonable use of traditional grasslands and limited cutting of firewood for the local population in the territory of the national park (according to official statistics, these limits were more than enough for the resident farmers) were to be allowed. The plaintiff never applied to the park administration for permission to cut firewood and therefore he was never refused. The plaintiff’s personal rights were thus not violated by this act, and he did not have a sufficient personal interest.
Inadequate legal grounds for decision
Alternatively, LSA could prove that the District Court had inadequate legal support for its decision and, accordingly, the decision was illegal and groundless. As the legal associ-ation asserted in its appeal, Georgia has a special law about social economic and cultural development of high moun-tainous regions. This law lists all such regions in Georgia, and the Kharagauli District is not among them. So the Kharagauli District is not a high mountainous district and the judge erred when he based his decision on this argument.
Fees
Court fees for the appeal were not substantial and the state committee paid them in advance. LSA could have had a problem if the court fees were more because the state committee did not have its own budget. The plaintiff did not have this problem because, according to article 9(4) of the Administrative Procedural Code of Georgia, failure to pay court fees by a physical person does not hamper the consideration and decision of a case.
According to article 47 of the Civil Procedural Code of Georgia, a judge can exempt a citizen from court fees.
NGOs, public agencies and other organisations do not have such a privilege and have to pay court fees. Advance payment is usually required.
The Tbilisi Regional Court had not yet held hearings on this case as of August 2002.
Final outcome
In August 2002, the case was before the Tbilisi Regional Court awaiting a hearing of the appeal. The Krtsanisi-Mtatsminda Court decision was temporarily stayed pending the Tbilisi Regional Court’s decision on the appeal.
Related actions and campaigns
None
Access to justice techniques
This case is quite interesting as it involves access to justice techniques used by both parties in the suit. For its
part, LSA was trying to prove that the plaintiff did not have sufficient interest in this case (despite the fact that he was exercising participatory rights in the name of “indigenous”
interests) and that the court was wrong in its finding that the Kharagauli district was a special mountainous region.
The agency appealing the lower court decision could succeed in convincing the higher court to grant a stay of the lower court’s judgement pending resolution of the appeal.
Case study analysis
The case study reflects a situation in which the greater long-term public interest is subsumed by the short-term (and possibly unfounded) interests of the local community.
The main problem of the local population in the Kharagauli District concerning the establishment of the Borjomi-Kharagauli National Park, practically speaking, was the desire to have the right to use natural resources illegally (illegal harvesting of timber, hunting, use of pastures). Establishment and clear demarcation of the boundaries of the national park would prevent these actions of the local population. The existing economic and social conditions in Kharagauli District (as well as in other parts of Georgia) promote this kind of illegal demand.
Comments of participants in the process
“This case is the most unusual case in my practice.
Usually, I support citizens and local communities against public agencies, but in this situation I support-ed a public agency to protect a national park against members of the public. Access to justice in environ-mental matters may have its reverse side. The right to use the natural environment is a constitutional human right in Georgia along with the right to live in a healthy environment. Actually, in this case each party could use access to justice methods intended for environ-mental cases by the environenviron-mental and procedural leg-islation of Georgia. I think that in this situation, the interests of the national park were more important for the environment than the interests of part of the local community (farmers from the bordering villages).
Probably if the local community had more accurate information about the creation and management of the national park, the national park would not have had problems with them.”
— Merab Barbakadze
“The WWF Georgia Country Office is directly involved in implementation of the German-Georgian ‘Borjomi-Kharagauli Open Programme,’ which is run by the German Bank KfW and which in turn is based on the December 21, 1998, framework agreement between the governments of Georgia and the Federal Republic of Germany on financial cooperation concerning Borjomi-Kharagauli National Park. Within this frame-work, the WWF Georgia Country Office is carrying out the responsibilities of the implementing unit. One of the objectives of the German-Georgian ‘Borjomi-Kharagauli Open Programme’ is to set the boundaries of the national park. That is why the WWF Georgia Country Office, in terms of the case study ‘National Park Without Land,’ could be considered both an inter-ested and affected party.”
— Nugzar Zazanashvili (representing the WWF Georgia Country Office as an interested and affected party)
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 Email. als@ip.osgf.ge www.interconnection.org/lsa
Nugzar Zazanashvili, Deputy Director, Conservation Projects Coordinator WWF Country Office Georgia
M. Aleksidze St. 11 380093 Tbilisi Georgia
Tel: +995-32-330-154/155/190 Email: office@wwfgeo.org.ge
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