EMC: Legal Assessment of the decision by Commission on Mokhe incident

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Photo: Dato Pharulava/Liberali

The Human Rights Education and Monitoring Center (EMC) is responding to the recommendation adopted by the commission for studying the circumstances surrounding the building in the village Mokhe, listed as a club (the commission) on November 4.

As it is known, the commission issued the decision of a recommendatory character on November 3, 2016 and offered two versions of arranging the place for praying for the Muslim community: 1. purchasing the building for prayers (mosque) by the State from the current owner and transferring it to the Union of Georgian Muslims; 2. Identifying designated piece of land in the center of the village for building a mosque.

According to the statement made for the media by the director of The National Agency for Cultural Heritage Preservation Nika Antidze regarding the decision of the commission, the first decision of the commission concerned the disputed building and according to the decision of the commission, which included the representatives of the Union of Georgian Muslims, “the disputed building will not be transferred to any of the parties and the Agency for Cultural Heritage takes responsibility for its future development, which means that the Agency will develop the plan for its future protection and development in the nearest future.” According to N. Antidze “the building will not have religious significance and the issue of transferring it to any confession will no longer be on the agenda.” However, opposite to the statement by the director of The National Agency for Cultural Heritage Preservation, the Union of Georgian Muslims, after changing their public statement several times, states that the commission did not make any decision regarding the historic background and legal status of the disputed building and the given decision only ensures its future protection. The State Agency for Religious Affairs, whose head is also the head of the commission, has not yet issued any official statement on the decision by the commission and completely different interpretations that followed the decision.

EMC believes that the fact that the issues of establishing the historic ownership and returning the building to the proper owner is no longer on the agenda, means denying restitution[1] as the right to property and is discriminatory.

Within the frameworks of the constitutional agreement between the State and the Orthodox Church, the State in most part, fulfilled the obligations towards the Orthodox Church to compensate for the loss of property during the Soviet period; while the State did not use the restitution policy for other religious organizations; because of this, the religious buildings of non-dominant religious are still considered as State property, in some cases, the Orthodox Church uses or claims these buildings. In the conditions of absence of methodical and non-discriminatory policy, the State has no mechanisms for settling the disputes on historic buildings, which cause religious conflicts. It is noteworthy that the State’s discriminatory restitution policy has been mentioned over the years by international[2] and national human rights protection institutions and religious organizations. Consequently, EMC believes that the disputed surrounding the building in Mokhe is the result of absence of restitution legislation and successive, non-discriminatory policy and it intensifies the need for developing relevant legislation for restitution of the property loss in the Soviet period.   

In 2014, after the religious conflict was revealed in the village Mokhe, the State Agency for Religious Affairs established the commission as an attempt to create a mechanism for settling disputes for religious buildings. Obviously, without the legislative regulations, the decision by the special commission operating democratically contained the risks of arbitrariness and politicizing. As the analysis of the commission activities suggests, for almost two years the commission did not take any measures aimed at establishing the historical and confessional origin (including inspection[3]). Contrary to purposes as defined by its charter, according the State Agency for Religious Affairs, the commission was working on de-escalation of the relations between the parties. Following the decision by the commission published on November 3, 2016 and different interpretations by the parties, the criticism that within the commission framework establishing the ownership and returning the building to the owner was not considered and thus settling the issue is not among the State’s priorities, was once more confirmed.  

EMC believes the decision by the State not to return the disputed building in Mokhe to its historic owner will be unfounded and it will not be justified by legitimate public necessity. According to Human Rights standards, in the case of confiscation, the best way to restore the rights is to restore the property; while the other ways of compensation (such as, giving other kind of property, monetary compensation) can only take place when for objective reasons (such as destruction, or using as an historic building of high public significance) it is impossible to return the confiscated property. Restitution experience of other countries shows that the process takes place in this particular order and the return of the historic building is given a priority. It is obvious that in the given situation, in the interest of preventing conflict between the parties, the refusal to return the property to the owner, will be illegitimate. Consequently, EMC believes that the alternative property offered to the Muslim community instead of returning the building, cannot be considered as an adequate and just form of restoring of the right to property.  

Moreover, the State Agency for Religious Affairs, declared the Orthodox Church as a litigant in the case without verifying prima facie the ground for the claims by the Patriarchy, and thus encouraged politicizing and complication of the matter. This way, in this dispute, the refusal to return the property to the historical owner is an expression of the State’s loyalty to the dominant church and contradicts the principle of equality.

It is noteworthy that according the Action Plan of the Government of Georgia on the Protection of Human Rights (2016-2017), one of the main obligations of the Agency is “to define the historic (confessional) ownership of religious buildings and transfer buildings to the owners, also solving disputes concerning the religious buildings promptly, transparently and justly.”[4] Therefore, it is important for the Agency to review the case of the historic building in Mokhe in the context of obligations as envisaged by the plan.

Considering all of the above, EMC urges

The Parliament of Georgia

  • Develop the legislation on the restitution of the property confiscated during the Soviet period, which, among other things, will determine the mechanism for settling the issues of disputed buildings;

Government of Georgia

  • Stop the sporadic, uninformed policy of the Agency regarding restitution of damage from the Soviet period, as well as, on the cases of disputed buildings by the State Agency for Religious Affairs;
  • Prepare the series of amendments to the legislation and policy on damage caused to the religious organizations in Soviet period and the restitution, which will be  consecutive, non-discriminatory and based on the supremacy of law;
  • Take making a decision on the Mokhe issue under its responsibility and until consecutive restitution policy is developed, to solve with based exclusively on the principles of human rights protection, as an exceptional one, which in essence means establishing the ownership and making a decision to return it to the owner.

The State Agency for Religious Affairs

  • To end the policy based on controlling religious organizations, which intensifies the religious conflicts and alienation; the results of this were once again demonstrated in the differences of position on the Mokhe incident of Muslims Union of Georgia and the Muslim community.

 

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[1] Note: Restitution – the restoration of property to its former owner (of their heir), whose property right had been violated.

[2] UN Human Rights Committee, Concluding observations on the fourth periodic report of Georgia, CCPR /C/GEO/CO/4, 19 August 2014, available at: http://bit.ly/2ef4O5a

Advisory committee on the framework convention for the protection of national minorities, Second Opinion on Georgia, June 15, 2015, available at: http://bit.ly/1SxitBq

U.S Department of State, International Religious Freedom Report for 2015, Georgia, available at: http://bit.ly/2dbRloS

[3] Note: among the reasons cited by the Agency, is the high cost for conducting examination.

[4] Action Plan of the Government of Georgia on the Protection of Human Rights (2016-2017), approved by governmental decree (1138) 13.06.2016, is available at:  https://matsne.gov.ge/ka/document/view/3315211