Property and liberty, or social justice and equality?

Maka Ghaniashvili

Modern democracy puts into danger the property institute, the violation of private property endangers the human’s liberty

The right of property is the human’s fundamental right and without it the existence of democratic state is impossible. Property ensures person’s liberty, ensures the realization of its abilities and possibilities, ensures to direct life with one’s own responsibility. At the same time the private property, as an institute is the core of market economy. Accordingly it is not only a precondition for competition between owners, but also one of the most important things for existence of a democratic state. Ignoring the person’s fundamental rights and liberties, especially the right on property excludes the development of market economy, society’s and its members deserving coexistence as a whole and also makes impossible the development of political, economic and social stability.
But there exists numerous arguments that during the whole history the twentieth century appeared to be lest advantageous as economically as politically for the development of property institute. The same situation continues in the 21st century and this despite of the totalitarian and other despotic regimes, democracy internationally declares primary obligation towards the principle of private property: till today so many constitutions of the world have recognized its violability. Reality is somehow different- rights on property and liberties connected with them are disfigured by numerous means, herewith some of them seem to be constitutional externally, others are indirect and have suspicious legitimacy. The violations of property rights are not always obvious, because violation of it is accomplished from the side of governments in the name of “Public Kindness”.

Historical Background
Limitation of property and liberty from the side of state officials followed when the attitude towards poor had changed. At the end of the 19th century states came to the conclusion that unlimited rights on property gave opportunity to the rich to oppress the poor. This caused relocation of accent in social politics: less importance was given to the liberty and property than to the social justice and equality. Thus poor voters always and nearly everywhere exceed in number the rich voters; theoretically there exists no limitations for a democratic state not to violate the rights of private property. State’s grown responsibility lead society towards the intensive interference in its life from the state side and because of it to liberty violation.
Reasons and ways for which sake citizens become badly dependent on state are numerous:
· State aids and assistance;
· State service;
· Professional Licences;
· State contracts- most important role plays this in Defense Industry;
· Subsidies- money directed for accomplishing agriculture, transportation, local air ways and flat construction;
· Use of State resources- mines of natural resources, pastures, wood economy and recreational-sanitation units, transport and communication, radio and TV channels;
· State Medical Insurance Policy System, etc;
In the mid of 20th century England, where private property had a solid basement for centuries , a professional civil service was created; It should have to keep an eye on the nation’s social problems and take out all necessary measures for their settlement. Parliament often shared the recomendations of this service. In such way was laid the ideological bases of universally prosperous state, which was followed by legislative initiatives and new laws.
Prosperity programs needed huge sum of money, achievment of it could be done with the help of taxes. This made taxes as an integral part of modern life. Direct regular taxation of citizens (direct taxes rate persons, indirect rates- material, services and business) is the novelty of the 20th century. In antique Athens such kind of tax was considered as tirrany and Athenian citizens were free from it. City-state supported itself with the income coming from the public property, Court transferings, fines and from such indirect rates as taxes on trade and port. In the Middle Ages regular taxes were considered as loosing someone’s personal independence. But taxes transformed the modern democratic states to a gigantic distributor mechanisms of private property. With the help of income tax state masters the great percent of corporations and private citizens income and not only distributes people’s property, but also regulates its consumption using different acts and laws- state establishes minimal wages, that contradicts the contract’s liberty; State interferes nearly in every sphere of business, punishing every action that resembles the price fixation, establishment of tarrifs on public service institutions, communication and transport regulation.
The above mentioned issue becomes acute in case of environmental protection. The hystery ot environmental protection, deathly fear that earth will soon become extinct, creates a strong emotional argument covering the violability of property rights. In every country exists legislative acts that establish orders for the land-tenure and use of other natural resources. It is worth mentioning, that while implementing the corresponding laws often takes place the violation of private owners rights when using the natural resources which are under their ownership, and this happens without sufficient compensation.
Clearing up different normatives and regulations are vitaly important, when the case is about to define their effectiveness or legal advisability. But it is also possible to unite all normative acts with one point- all of them equal the partly confiscation of private property.
In modern conditions the state interference is inevitable and mostly useful- the concept of “Public Kindness” is worth taking into consideration even if it is misused. For example, the environmental pollution makes it urgent that state establish a constant supervision on industrial livings and car smoke. Somebody should control the issue that citizens are not discriminated by their racial, religious belief or sexual orientation. Air safety should be guaranteed; licensing of doctors, medical service for old and poor peopleare necessary. All these demands state interference that limits humans liberty, but also defends it – in modern world private property, traditionally the most important bastion should be limited for the sake of society. This may mean that property is not useful any more as a guarantee for liberty and resuing of it is very problematic. Also it may mean that we should find a way to protect and preserve property, and society could not be possible to abrogate it if at the same time follows fundamental social justice.
If we recognize the traditional role of private property naturally arises the question- does a wealth accumulation and sharing of it by state, in such case when any state office can encroach the property rights for the sake of social necessity , mean that modern system of social provision partly threatens personal property?
If we generally discuss, especially the Court’s practice in the United States and Europe, we can conclude that Court system defends citizens property from encroachment by another citizen. But when the property seizure takes place directly by the name of state, it should be accompanied with corresponding justification and definite compensation, but in practice this process aquires the face of confiscation. As usual, the phrase for “Public Kindness” is given original, more liberal interpretation by the government.Under this moto often happens for example, land seizure for such suspicious reasons as the arrangement of marketplaces or apartment construction and urban planning. Often certain persons and groups receive profit and not whole society. Moreover, determination of the compensation takes place independently- sometimes it is cheaper than the owner considers his/her property to cost.

Property Institute in Georgia
As we can see, nowadays there exists a number of levers that can violate private property institute and correspondingly person’s liberty. Citizens condition becomes severe if legitimate reasons are accompanied with a state officials illegal actions.
Economic development, foreign investment and favouring of business have been considered to be a top priority for Georgia during the recent years. Achieving all these is practically impossible if there is no solid legal bases for private property protection. Georgia’s Public Defender, international or non-governmental organizations, media and opposition parties are talking about the facts of private property violation. How does the state authority manage to realize publicly declared aims?

Legal Bases
Right of property is clearly recognized in the Convention of Eeuropean Fundamental Human Rights:”Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law insofar as is necessary for the general interest.
“Moreover the above mentioned regulations do not decrease state’s right to nuse kind of laws that it considers to be necessary for general interest or for the collection of taxes and paying fines”
As it is seen from the content of the article, right on property does not belong to the absolute category of rights, whcih violation is unacceptable. Judging from this point it is important to regulate the borders of interference in this rights. European Convention makes strict reglamentation of those conditions under which can be allowed the violation of property rights as an exception.
· Public Interest, that should be caused by public or social demand, should serve for legitimate aim and be proportional to this aim;
· Any interference in the right of using private property regularly, that be confiscation of property or limitation of right of using it, should be forseen in the law and be implemented by defending lawful procedures.
· Confiscation should take place under provision of the conditions of International Law.
On December 27, 2001 Georgian Parliament ratified the European Convention of 1950th first additionbal report, from which it managed to keep within the bounds the responsibility guaranteeing the protection of private property. According to Georgian Constitution Article 21, paragraph one: “The right of property and inheritence is recognized and guranteed. It is inadmissible to abolish the universal right of buying, alienation or inheritence of property.” Georgian Constitution forsees the limitation of property rights and confiscation conditions:
· Inevitable Public necessity case should be forseen in the Law.
· Limitation rule regulation by Law.
As for property Confiscation, it is possible in following cases:
· For inevitable public necessity, under lawfully established cases, under decision of the Court and with special compensation;
· For inevitable public necessity, established by draft law while urgent necessity, with special compensation.
Confiscation of Private Property during Public Necessity is forseen in Georgian legislation in:“The rule on the Confiscation of Private Property during the Inevitable Public Necessity ”.
· Construction-building of gas and main lines;
· Building of railway lines;
· Construction of pipelines for mineral oil, natural gas and oil products;
· Construction of hydroelectric power transmition and distribution lines;
· Construction of water supply, sewerage and atmospheric sediment lines;
· Construction of telephone transmition lines;
· Construction of cable network television;
· Construction of public necessity buildings and units;
· Works needed for Defence constructions;
· Extracting useful minerals;
Property rights are recognized and guaranteed with Georgian Constitution and laws. Though there still exist several facts of private property violation that became a matter of severe discussion in Georgia’s Human Rights Defending Office and Organizations.
Human Rights Watch annual report says: “When Tbilisi City Hall demolished little shops, cabins and trade points nearby Underground and other places in January-February of 2007 they said that this buildings made city look ugly. In most cases owners received only verbal warnings; their property was destroyed before they applied to the court. The second wave of private property violation was directed to the owners of restaurants. Owners were asked to handle their property voluntarily to the state; in any other case a proceeding would be started against them in the court, for the reason that they had received this property with a corruptive agreement during the administration of ex-president Shevardnadze. In April of 2007 a mass protest actions were carried out by owners, where they declared that the government forced them to give their property to the state. But this was not the only fact in Human Rights Watch document; it also refers to the deconstruction of a famous living flat in Tabukashvili Street #50. In July of 2007, the inhabitants of Capital City’s central part were forced by the police to live their flats and soon the building was deconstructed. The reasons of the deconstruction were the constructive mistakes made during the construction, it made the building wrecking. But citizens consider that the reason of their movement from their flats is the land, on which the above mentioned building had been located. Georgian government sold this land to the foreign investor. Investor paid compensation to the owners, but despite this owners consider the received sum of money to be inadequate to the damage they got.
Such kinds are the facts about which HRW talks while discussing the human rights violation in Georgia. But herewith states that in November 2007, Georgian Parliament passed a resolution on “Additional measures to favor the Private Property Rights”. “Future will show how this resolution may help to strengthen Private Property Institutions in Georgia”- is mentioned in the report of the International Organization.
But we have to admit that still future is not showing anything positive. Moreover in “Georgia’s Young Lawyers Association” is working on a case which refers to the violation of private property rights in 2008: in Khashuri registration office LTD “Eurasia” was refused to register a license of private property right delivered to its name by Khashuri Municipal Council, in spite of the fact that LTD “Eurasia” with proper other documents presented the private property confirming license to the registration office. But during mastering the case “GYLA” found out that the land, on which LTD “Eurasia” requested recognition of its property right, was announced for privatization by the Ministry of Economic Development in December of 2005. The auction took place in January 24, 2008. “GYLA” lodged a complaint to government and demanded to cancel the decision made on holding the auction. Georgia’s Public Defender addressed with the same demand the Ministry of Economic Development. Despite this the auction still took place and the property of LTD “Eurasia” was sold out with abrogation. LTD “Eurasia” appealed to Tbilisi Civil Court’s Administrative Case Board, though its real action was not satisfied. In real action taken to Tbilisi Civil Court’s Administrative Case Board by “GYLA” we read: Because of the unlawful decision of several officials, there exists real danger of spending years in Court and beating the water: proving that the white is white! If we did not find justice in Georgia we will by all means take this case to Strasburg, but why do we have to make a complaint against our country and why do we have to wait for years for it, when it is completely possible to receive what we want in couple of weeks observing the demands of law.”
On frequent facts of private property violation Georgia’s Ombudsmen made a special statement: “In spite of the fact that government expressed its will that there would not be violated private property rights, still the violation takes place and often it acquires cynical form. Here I have to mention, that when President stated about the creation of Commission Defending Property, lots of people come to my office, whose private property rights have been severely violated and they are waiting with hope for the creation of this Commission. I do not know what answer to give them in a situation when none of the office- Court, Procurator Office can restore their violated rights. Often directly these Offices appear to be the right violators.”
Georgia’s Public Defender stated several other examples of private property violations, among them are the sequestration of Irakli Okruashvili Office and presented the documents confirming of this unlawful action.
One important parallel- we have mentioned “Public Interests” above, which is used from ruling circles as the mean of limitation private property. On the fact of violation private property right (case deals with the unlawful privatization of land and buildings located on Constitution Street #6, which was held by Tbilisi City Hall. The part of the property had another owner and had been privatized since 1994 by Comradeship) the Ombudsman mentioned: “Concerning this issue we met the representative of Tbilisi City Hall. He could not represent any lawful argument and in private conversation he cited completely a crack and unlawful argument, that as if The City Hall acted for the sake of Public Interest, because this unit was sold up in $20 000 14 years ago and nowadays its price is much more.” So we have not talked so much in vain about the justification of private property violation for the sake of “Public Kindness”, it is successfully used by Georgian bureaucratic state offices.
We asked several questions to Georgia’s Public Defender Sozar Subari:
_ Is it true that in recent years there are a growing number of facts of private property violations, or we did not use to divulge such kind of facts in the past?
_ Today the facts of private property violations have become more frequent in Georgia. It is impossible to imagine the owner whose right on property had been violated staid silent during Shevardnadze period, when he had less fear of telling the truth. When you are taken out of your property it is impossible to stay silent, of course if there is not an unimaginable fear, or is not touched somebody who is extremely dearest for you. Dearest may be the life of your or your relative’s child. At any rate when the right of private property is violated people do not stay silent, but unfortunately it is true that the facts of private property violations have become frequent and it happens in an extremely cynical ways in most cases.
_ What is the main reason of this- the inexistence of proper legislative bases that can have created solid guarantees for the defense of private property, or does the existence of this law depend on the political will?
_ “Legislative bases that can protect the right of private property exist in Georgia and its fulfillment completely depends on the political will. The violation of private property has different forms- it may be confiscation from the government side, intimidation or pressure of citizens from the side of procurator or other offices, in order to make owners to give their private property to the state, may be not by direct way, but by indirect, but of course it is the violation of owners right; Also coming without any legal documentation and deconstruction of private property- flats, shops, cabins and so on; when the law on “Confiscation of private property for Inevitable public necessity” is used irregularly.”
Such is the Georgia’s National Defenders position, which is shared by many International or local human rights protecting organizations. Private Property Right is often violated in Georgia. Private property is one of the necessary component part of liberty and prosperity, to which it indicates the historical development- one of the reasons of achieving global economic superiority by Western Civilization lays in the Institute of property, which originated there and achieved complete development. It is clear; those countries giving strong guarantees on economic development and private property right, factually without exception belong to the richest countries. Progressive position takes their bureaucratic office and legal institutions. This does not only refer to the European States, but the same can be said about the countries like: Japan, South Korea, Hong-Kong, Taiwan and so on.