The November Amnesty: A Humane Act or a Legalization of Land Grabbing?

Over the past two decades, there has been a notable increase in both the prevalence and intensity of investments requiring extensive land, particularly agricultural land, both in Georgia and globally. Infrastructure projects, mining ventures, and tourism investments are rapidly expanding, encroaching upon public, municipal, and private land. Is Georgia adequately prepared to confront this challenge?

• To date, Georgia has not articulated a comprehensive state policy on land. Such a policy would view land as a multifunctional resource and address issues pertaining to land ownership, access to land, land use and management. Unfortunately, public discourse is currently often limited to the question of whether foreign citizens should be permitted to own agricultural land in Georgia, along with associated legal considerations.
• Land-related laws are fragmentary. Talk of preparing a comprehensive legal code on land began in the 1990s, but no such framework has been adopted. Enforcement of even these fragmentary provisions is lacking.
• The legal forms and institutional mechanisms^[1] of recognizing possession of agricultural land introduced in 2007 (lawful possession and unauthorised occupation, i.e., squatted land)^[2] do not allow or make it more difficult for citizens to formalise ownership of land in their possession.  
• Beginning in the 1990s, Georgia has been receiving significant financial support from international donors to systematise legal and cadastral land registry. The last major initiative in this effort began in 2015^[3],[4] with the introduction of two forms of land ownership registration — systematic and sporadic — and continues to this day. Multiple organisations and experts warned the government against encouraging sporadic registration and advised it to direct its resources towards systematic registration^[5]. Unfortunately, this advice was not followed and, as a result, land ownership of many citizens is currently in legal dispute.  
• According to the most recent data available^[6], a third of all land in Georgia is still not registered. The incomplete and inconsistent state of the land registry allows the government to claim ownership of unregistered plots without the consent, or compensation (or through inadequate compensation), of those who own/possess the land. This naturally leads to frequent conflicts.
• Georgia has a two-decades long history of involuntary resettlement (both, physical and economic) driven by development projects. Despite this experience, issues related to development-induced involuntary resettlement are largely unregulated: the legislation and the institutional framework are fragmentary; Georgian law does not require assessment of the need and impact of resettlement; it neither allow affected communities to participate in the decision-making process. In practice, agricultural land is easily converted to non-agriculture uses to accommodate development projects. Opportunities for avoiding resettlement are rarely considered. Expropriation of land is seen not as an exceptional measure, but as a regular practice. Projects pursued with the involvement of international financial institutions (IFIs) proceed differently, as IFIs impose their own compliance standards.

In these circumstances, governmental bodies are able to move fast in transferring municipal and state agricultural land into the hands of large-scale project developers^[7]. When it comes to privately owned land, or land under private possession/use, when faced with the refusal of owners to sell their assets, the government has means other than expropriation^[8] (which is a relatively long process^[9]) to acquire needed land.

Land grabbing by the state in 2008-2012

Just a decade or so ago, the government led by the United National Movement (UNM) employed various strategies to seize property from landowners and users and transfer land to companies developing large infrastructure, energy, and tourism projects. Coalition of a non-governmental organisation^[10], identified and studied multiple violations of land tenure rights between 2008 and 2012. For example:

• In Mestia^[11], infrastructural projects (airport, ski runs and lifts, hotels) expanded into land under traditional ownership. Owners were not allowed to register their assets in the public registry. Additionally, they received no compensation for damages, because of which they had to resort to long and expensive legal disputes.
• Between 2007 and 2010, the government approved land registration requests from 271 people in the village of Gonio^[12] along Achara’s Black Sea coast. The state then dispossessed these owners and reclaimed the lands with no compensation paid to the owners. The territory in question was within the area where investors from Arab states planned development of a recreational infrastructure.
• In Sairme and Bakhmaro^[13], shortly before and just after the initiation of investment projects in tourism and infrastructure, tens of local residents simultaneously gifted their lands to the state. Because these residents were subsequently left with no significant sources of income, the transactions seemed suspicious and seemingly pointed to a forced transfer.
• In Anaklia and Grigoleti^[14], land plots that had been lawfully registered by their owners were registered as state property, without notification or offering compensation to landowners. The plots in question overlapped with a large investment in regional logistics.

Nothing new under the sun

The property right was violated and lands were grabbed not only for large-scale development projects^[15]. The Georgian Dream campaigned on the promise to address this issue when it won the elections in 2012. Unfortunately, instead of fulfilling its promise, once in power, the Georgian Dream has apparently chosen to follow the path of its predecessor. Over the past few years, concerning cases have surfaced where a tactic similar to that of the UNM has re-emerged. In these cases, government bodies question the legally recognised ownership of land and initiate criminal proceedings against owners:

• In Racha, in the village of Shkmeri^[16] (Oni Municipality), where a mining company intends to extract manganese, a criminal investigation targeted five local residents and several municipal employees. The prosecution alleged that locals had illegally claimed agricultural land.
• Similarly, in Utsera^[17] (Oni Municipality) 20 families were accused of illegally claiming ancestral lands. It later emerged that the land in question bordered on the territory where a businessman with close ties to the Russian government plans to set up a sprawling game reserve.
• The Prosecutor’s Office of Georgia is investigating residents of Mamaneti and Udabno^{[18], [19]}, villages in the Bagdati Municipality close to the Sairme Resort, for fraudulently asserting the ownership of ancestral lands. Residents argue that they are being persecuted for being in the way of resort developers.
• The Prosecutor’s Office arrested residents of Arakhveti^{[20],[21],[22]}, a village in the Dusheti Municipality, on charges of fraudulently claiming ownership of ancestral land. The disputed land falls within the route of the new Kvesheti-Kobi Road, which will connect the region to Russia.
• Similarly, in Gomismta^[23],[24], a village in the Ozurgeti Municipality, the Prosecutor’s Office has disputed the legality of ownership rights to land that have already been processed in the registry. Gomismta has recently attracted multiple developers seeking to develop tourism and recreational infrastructure in the area. 
• Criminal proceedings alleging illegal assertion of land ownership have been initiated against more than 300 people in Saguramo^[25], which is currently undergoing rapid urbanisation.

All these cases have three things in common: (1) disputed land is located within or in close proximity to proposed development projects; (2) residents have officially registered ownership rights to the lands in question; (3) the Prosecutor’s Office accuses them of illegally claiming land and raises the possibility of criminal prosecution.

It is certainly possible that in some instances land has been claimed illegally or fraudulently. But, the number of cases, as well as their scale and location (their proximity to development projects) seem to point to the possibility that in Georgia’s many municipalities property rights to land (as well as many other rights) are being violated and that the government is engaged in land grabbing to accommodate powerful commercial interests. The long history of such grabs in Georgia further strengthens this suspicion. The Prime Minister’s announcement on September 11, 2023, followed, within a few days, by the initiation in the Parliament of a draft law on amnesty, seems to add more credibility to this possibility.

At the Executive Government Meeting, PM Garibashvili delivered the following remarks on the issue of land-related investigations^[26]: “Many of our citizens illegally claimed ownership of public agricultural land and this became a major problem. Tens of cases are currently being investigated by the Prosecutor’s Office. There was a lot of misunderstanding regarding this issue. We consulted with the Prosecutor’s Office and with the Parliament and we propose to declare an amnesty covering these cases”. Garibashvili explained that citizens would have a chance to avoid criminal prosecution if they abandon disputed land for the benefit of the state before September 1, 2024. He also clarified that the amnesty would cover “illegally claimed” agricultural land registered before September 1, 2023, and that when renouncing ownership is no longer a possibility, the claimants would have a chance to pay compensation according to the market value of the plots in question.

An instrument of pressure?

Two days after the Prime Minister’s announcement, the Government formally introduced in Parliament the draft law on amnesty. As Garibashvili had explained, the law would “only cover cases where public agricultural land had been claimed illegally”. According to the Government^[27], this would be an “exceptional and temporary measure” informed by “humane principles” and “in the context of significant public harm”^[28].

Importantly, the Government had not consulted anyone other than the Prosecutor’s Office^[29]. The explanatory note that accompanied the draft law described neither the origins nor the extent of the issue it aimed to address. Neither did the note estimate the number of cases the law would cover. The draft law and its explanatory note only specified the violations that it targeted: Article 180 of the Criminal Code of Georgia (Fraud) and/or Article 362 (Making, sale or use of a forged document).

Two months later, on November 15, 2023, the Parliament adopted the law by all three hearings with essentially no debate. Before formal adoption, the draft passed mandatory committee hearings^[30], during which Members of Parliament expressed their opinions and posed questions to the representatives of the Government. Debates that took place at parliamentary committees revealed the following:

• The amnesty covers the period before September 1, 2023. The date coincides with the Prime Minister’s announcement^[31]. If agricultural land is found to be sold after this date, the seller will not be granted amnesty.
• The amnesty proposed is atypical. It includes an element of bargaining and negotiation. The amnesty is conditional on the person’s willingness to collaborate and compensate the state for damages incurred, through returning land to the state free of charge or paying compensation.
• The hearings at the parliamentary committees also revealed the scale of the issue: according to the Government’s parliamentary representative, 130 persons^[32] have been fined under Article 180 (fraud - taking property of another person or obtaining of title to the property by deceit for its unlawful appropriation) and 9 persons have been imprisoned under Article 362 (making, sale or use of a forged document, seal, stamp or blank forms). The total area of agricultural land fraudulently claimed by the latter is 240 hectares. Two cases concern land in the Mtskheta-Mtianeti region, two in Kakheti and five in Tbilisi.
• Despite calls at parliamentary hearings to address the causes of the problem and the general deficiencies of the system of agricultural land registration, as well as the responsibility of public institutions and public servants, the committees declined to consider these issues. At one committee hearing^[33], a member of the opposition reminded the members of the committee that a similar practice of land grabbing – abandoning land for the benefit of the state – had been deployed by the previous government. In response, the members of the ruling party explained that the practice of abandoning property[34] had been tainted by the UNM’s legacy and that replacing the term can be considered to avoid the association.

Another question posed at the hearings asked what the government intended to do about past violations that are yet to be identified. According to the government’s representative^[35], those wishing to be granted the amnesty must come forward voluntarily, admit guilt, renounce claims to land and reach out to the Prosecutor’s Office, which would then decide whether to initiate criminal proceedings. This issue was later addressed during the second hearing, when Article 9 was added to the draft law^[36]. Now, according to Article 9 of the law, the mechanism proposed by the amnesty law – abandoning land for the benefit of the state in exchange for clemency - can be applied in criminal cases initiated after the adoption of the law as well.

Hence, the strategy outlined in the amnesty law has the potential to encompass not only existing or recognized cases but also future ones. This could serve as a possible tool for state authorities aiming to exert pressure over individuals who own or possess agricultural land that becomes a subject of interest.

What can we do from now on?

As we noted above, forced abandonment of land and other property to the state (sometimes in the form of “gifting” these assets to the state) were common under the UNM’s government. Rather than discontinuing the practice, its successor perpetuates it by criminalising its citizens. Predictably, it has led to a conflict. Instead of engaging the core issues that led to the current crisis (which could have been avoided^[37]), the GD responded with its amnesty initiative - a supposedly humane act, which systematises and legalises the practice of agricultural land grabbing.

When looking for solutions, we need to establish a shared understanding that the routinizing seizure of agricultural land by the state is unacceptable. It is similarly unacceptable to criminalise owners of agricultural land to suppress their legitimate demands and deflect criticism of ongoing investment projects. Beyond their inherent injustice, these practices create a strain between the government and its citizens, resulting in additional challenges for both the state and business developers. These challenges manifest as social conflicts and can impede or escalate the costs of investment projects.

We must also agree that the state will need land for infrastructural projects and that this land will sometimes be privately owned or used. To ensure that such land is claimed through a process that respects fundamental human rights, the state must urgently formulate a policy and set up institutions and procedures regulating development-induced involuntary resettlement. Both the Parliament and the Government are responsible for such policymaking. Both could benefit from the resources and expertise offered by international financial institutions.

The Parliament of Georgia must pay special attention to the implementation of the land reform. It must carefully study potential problems and, with input from stakeholders, help formulate ways of addressing them. For this, it is necessary to rely on the Parliament’s mechanisms of oversight, which, unlike working groups set up under parliamentary committees, ensure the transparency of the study process and its outcomes.

The Parliament must also monitor every use of the mechanism introduced by the amnesty and demand the Government provide a report on both ongoing cases covered by the initiative and all future ones. Similarly, the Office of the Public Defender and all relevant civil society organisations must be vigilant in monitoring these cases.

The content of the publication is the sole responsibility of the author and can in no way be taken to reflect the views of the Heinrich Boell Foundation Tbilisi Office - South Caucasus Region.