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Opinion | Georgia’s Biased Courts are Damaging Cultural Heritage and the Environment Too

For every year that Georgia’s feudal system of government persists, the rot in its institutions grows deeper.

Ted Jonas is an international lawyer and environmental activist who has lived in Georgia for many years.

Georgia is a constitutional democracy on paper. It has an executive branch, a parliament, and courts. Nominally, they play the roles assigned to them by the Constitution. In fact, rather than being a voice of the people, a forum for debate, and a check on executive power, one-party rule makes Georgia’s Parliament a mere rubber stamp for executive initiatives. And rather than serving as independent checks on executive power, Georgian courts serve as adjuncts to the executive branch. This is clear in administrative law cases, where courts see their role as defending the bureaucracy; in criminal cases where the process is controlled by the Prosecutor General and his liege lords above him; and even in civil cases, if one party is connected to the governing apparatus. 

The intellectual credibility of judicial decisions is necessary for public respect of the courts, and that in turn is necessary for public respect of the law. But when the governing system depends not on public support, but on the power of certain individuals within and above it, then the imperative of intellectual credibility in judicial decisions becomes less important too.  It’s not the public who have to be convinced of the wisdom and rectitude of the courts in such a system: it’s the “liege lords” – the authorities – who have to see that the courts are simply loyal.

As Georgia’s feudalistic system becomes more entrenched, we see a slow erosion of any shame in the judiciary, leading to court decisions based on often comic reasoning. Certainly, we see it in politics: the director of the largest opposition TV station is sentenced to three and a half years in prison because of the advertising rates he set and deals he made with private advertisers in a private business, despite the lack of any discernible public interest in these matters.  Or the businessmen-turned-politicians Mamuka Khazaradze and Badri Japaridze being convicted of a crime that the prosecutor did not charge, and for which the statute of limitations had long expired.

In the environmental sphere, courts have shown a similar lack of shame in their decisions.  Here are two examples.

Recently, an environmental NGO which I founded, challenged the construction of a large hotel at 22 Lado Asatiani Street, in Old Tbilisi.  Construction of the hotel violates the city’s general zoning plan, which classifies the neighborhood as strictly residential and gives it the status of a historical district. The hotel project also violates provisions of the Law on Cultural  Heritage, requiring buffer zones around monuments, to prevent visual and physical damage to them by inappropriate new construction. The mayor of Tbilisi, Kakha Kaladze, personally issued an order on April 02, 2019, making an exception to the city’s zoning laws to allow the hotel to be built. Two of the hotel’s ultimate owners, shareholders in the developer “Old City Group,” have been significant donors to Mr. Kaladze’s ruling Georgian Dream Party. Initially, the judge, much to our surprise, granted our request for an injunction temporarily suspending the permits for the construction of the hotel, so further damage would not be done and our remedies would be preserved while the court decided the case on the merits.

However, our joy at a rare case of a Georgian judge going against both the Municipality and the developers was not to last. On appeal of the injunction, the Tbilisi Appellate Court (and the lower court on remand of the case) agreed with the developer’s argument that having gouged a huge hole in the foundational rock of the Sololaki ridge, whether that was legal or not, the construction now had to be continued due to the alleged danger of the ridge collapsing if the construction were not completed.

The result is that the City and the developer have been allowed to continue building the hotel,  to prevent a danger (collapse of a cliff) that the developer had itself created by its illegal actions. In other words, the developer is allowed to “profit from its own misdeeds,” violating a cardinal rule of jurisprudence. Meanwhile the rights of the public in the preservation of cultural heritage – a right explicitly recognized in Georgia’s Constitution and Law on Cultural Heritage – are violated without legal remedy.

Case two happened just this week.  Dighomi Meadows is a 5-kilometer stretch of formerly natural riparian environment along the Mtkvari River, zoned as “Green Space,” that over a 3-year period from 2018 to 2021 was completely destroyed by illegal rock mining and crushing, gravel, and cement production, and illegal waste dumping.  The companies doing it operated openly and were well known.

A citizen’s initiative group led by intrepid activists did everything they could to stop the destruction as it occurred. But neither the Ministry of Environment nor the Municipality of Tbilisi, both of which had jurisdiction over the site, took any action to stop the illegal activities or to hold the perpetrators liable for several years. In 2021, only after escalated involvement by international actors, did the Ministry and the City finally act to stop the illegal mining, crushing, and processing (but not the illegal dumping).

The Dighomi Meadows activists, rightly so, were not satisfied. The businessmen who destroyed the environment have profited handsomely from the theft of the state’s mineral resources and the destruction of green-zoned public land.  Yet neither the Ministry of Environment nor the Municipality made any effort to collect monetary damages from the perpetrators, even though the law requires them to do so.  The Dighomi Meadows activists suspect, with good reason, that the so-called businessmen have close ties to the Georgian Dream party. 

Today, the City Court of Tbilisi held its first hearing on the claim of the Dighomi activists, which was filed nearly nine months ago, to require the Ministry of Environment and the Municipality of Tbilisi to carry out their duties under the law to hold the polluters of Dighomi Meadows financially responsible for the damage they did to state property and the environment. Per its usual practice of ignoring citizen complaints, the Municipality did not show up at the hearing and has not filed any response in the case. Only the Environment Ministry’s representative appeared and repeated various technical arguments for why they shouldn’t be a defendant in the case.

But the judge was not to be restrained by the absence of the Municipality nor the irrelevance of the Ministry’s arguments. Without hearing any arguments from the Dighomi Meadows side, the judge ruled from the bench that the court has no power to order an administrative organ like the Ministry of Environment or the Tbilisi municipal government to carry out their responsibilities under the law.  Sure, the law says that the Ministry and the Municipality should collect damages from polluters. But if they fail to do so – if they fail to carry out the law – that’s just tough luck. There is nothing that you as a citizen can do about it.

I probably don’t need to say that it is settled law, in Georgia and just about anywhere else, that mistaken or illegal inaction by an administrative agency is as culpable as an illegal action. The Administrative Procedure Code of Georgia explicitly states that citizens may bring claims against government agencies for failing to take actions they are supposed to take under the law. Failing to enforce a law that an agency is charged to enforce is just as wrongful as enforcing it incorrectly. Otherwise, we would have an absurd situation where, for example, in one case a businessman can complain in court that an agency is unfairly enforcing an anti-pollution regulation against him, but in another case, the citizen whom that regulation is meant to protect cannot claim in court that the agency has failed entirely to enforce it.  The city court’s ruling was therefore against Georgian law and logically absurd.

Too many of Georgia’s judges have substituted approval by political authorities for allegiance to the law, respect of their peers, and the public confidence that they should really care about. When the high standards of law are replaced by the base dictates of power, judges and the judiciary lose their claim to respect. 

This post is also available in: ქართული (Georgian)


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