CASE OF JAKELJIĆ v. CROATIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
5. The applicants were born in 1960 and 1970 respectively and live in Split. 6. The legislation of the former Yugoslavia, in particular section 29 of the 1980 Basic Property Act (see paragraph 25 below), prohibited the acquisition of ownership of socially owned property by adverse possession (dosjelost). 7. When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed the above-mentioned provision (see paragraph 26 below). 8. Subsequently, the new Property Act of 1996, which entered into force on 1 January 1997, provided that the period prior to 8 October 1991 was to be included in calculating the period for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 28 below). 9. Following several petitions for an abstract constitutional review (prijedlog za ocjenu ustavnosti) submitted by former owners of properties that had been appropriated under the socialist regime, on 8 July 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the initiative and decided to institute proceedings to review the constitutionality of section 388(4) of the 1996 Property Act. 10. By a decision of 17 November 1999, the Constitutional Court invalidated section 388(4) of the 1996 Property Act. It held that the impugned provision had retroactive effect, resulting in adverse consequences for the rights of third parties (primarily those who, under the restitution legislation, were entitled to the restitution of property appropriated during the Communist regime) and was therefore unconstitutional (for the relevant part of the decision see Trgo v. Croatia, no. 35298/04, § 17, 11 June 2009). The decision came into effect on 14 December 1999 when it was published in the Official Gazette. 11. On 25 May 1993, 21 February 1996 and 20 July 1999 respectively, the applicants bought three plots of land from various individuals. However, the plots were recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township. 12. On 4 April 2002 the applicants brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against Split Township (Grad Split – hereinafter “the local authorities”), seeking a declaration of their ownership of the three plots of land and registration in their names in the land register. They submitted that the property at issue, even though it had been recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township, had been in the possession of their legal predecessors for more than 100 years. Given that the statutory period for acquiring ownership by adverse possession had elapsed in respect of their legal predecessors, the applicants claimed that by buying the land from them they had validly acquired ownership. 13. By a judgment of 1 June 2007, the Municipal Court ruled in favour of the applicants. It established, firstly, that the land in question had been in social ownership on 8 October 1991 and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by 6 April 1941 (see paragraphs 19, 25 and 31-32 below). It found, however, that the applicants had proved that their predecessors had had continuous possession of the three plots of land in good faith for more than forty years before 6 April 1941, and had continued to do so until they had sold them to the applicants (see paragraph 11 above). The applicants’ predecessors had therefore, under Article 1472 of the 1811 Civil Code (applicable in Croatia from 1852 until 1980, see paragraphs 18-20 and 22 below), acquired ownership of the land by adverse possession even before that date. 14. Following an appeal by the defendant authority, on 29 May 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It stated that even though the Municipal Court had established the facts correctly, the applicants’ predecessors had only been in possession of the land in question (continuously and in good faith) since 1912. The forty-year time-limit for acquiring ownership by adverse possession set forth in Article 1472 of the 1811 Civil Code had not therefore expired by 6 April 1941 (see paragraph 22 below). In the subsequent period between 6 April 1941 and 8 October 1991 the relevant legislation had prohibited the acquisition of ownership of socially owned property by adverse possession (see paragraph 6 above and 25 below). This had interrupted the running of the statutory time-limits elapsed before that period. The time elapsed before 6 April 1941 had therefore not continued to run after 8 October 1991 – it had actually started to run again. 15. The applicants then lodged a constitutional complaint against the second-instance judgment, alleging violations of their constitutional rights to equality before the law, equality before the courts and fair procedure. 16. By a decision of 15 September 2011, the Constitutional Court dismissed their constitutional complaint and on 4 October 2011 it served its decision on their representative.