CASE OF RADOMILJA AND OTHERS v. CROATIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions)
Angelika Nußberger;Branko Lubarda;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Iulia Motoc;Julia Laffranque;Linos-Alexandre Sicilianos;Mārtiņš Mits;Nebojša Vučinić;Paul Lemmens;Robert Spano;Síofra O’Leary;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Georges Ravarani;Ksenija Turković;Pere Pastor Vilanova
10. The applicants live in Stobreč (application no. 37685/10) and Split (application no. 22768/12). Their names and dates of birth are set out in the Appendix. 11. The legislation of the former Yugoslavia, in particular section 29 of the 1980 Basic Property Act (see paragraph 53 below), prohibited the acquisition of ownership of socially owned property by adverse possession (dosjelost). 12. When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed the above-mentioned provision (see paragraph 54 below). 13. Subsequently, the new Property Act of 1996, which entered into force on 1 January 1997, provided in section 388(4) that the period prior to 8 October 1991 was to be included in calculating the time-limit necessary for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 56 below). 14. 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. 15. In a decision of 17 November 1999 the Constitutional Court invalidated with ex nunc effect 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 Constitutional Court’s decision see Trgo v. Croatia, no. 35298/04, § 17, 11 June 2009). The Constitutional Court’s decision came into effect on 14 December 1999 when it was published in the Official Gazette. 16. On 19 April 2002 the applicants brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against Split Township (Grad Split – hereinafter “the respondent authority”) seeking a declaration of their ownership of five 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 their possession and the possession of their predecessors for more than seventy years. Given that the statutory period for acquiring ownership by adverse possession had elapsed, the applicants claimed to have acquired ownership of the land. Their statement of claim (tužba) read as follows: “Plots of land nos. 866/91 (...), 866/117 (...), 866/136 (...) and 866/175 ... are registered in the name of the Stobreč Municipality. EVIDENCE: Extract from the land register. However, the plaintiffs and their legal predecessors have been holding the above-mentioned immovable property in their possession for more than 70 years, and thereby acquired the ownership of that immovable property. EVIDENCE: Extract from the cadastre, testimony of the witness N.P., parties’ testimonies and other evidence, if needed. (a) [...] (b) Plot no. 866/136 belongs to the plaintiffs Mladen Radomilja and Frane Radomilja in two equal parts; (c) Plot no. 866/175 belongs to the plaintiff Ivan Brčić in its entirety. EVIDENCE: See above For these reasons it is proposed that the court, after having conducted the proceedings, adopt the following Judgment 1. It is [hereby] established that the plaintiffs are the owners and co-owners, respectively, of the [following] immovable property ... and therefore: (a) [...] (b) Plot no. 866/136 Mladen Radomilja and Frane Radomilja in two equal parts; (c) Plot no. 866/175 Ivan Brčić in its entirety 2. The plaintiffs are, on the basis of this judgment, entitled to seek and obtain registration in their name of the right of ownership and co-ownership, respectively, of the immovable property listed in point 1 of this judgment in the land register, as well as concurrent deletion of that right as registered to date in the name of the respondent authority’s legal predecessor, the Stobreč Municipality. 3. The respondent authority shall, if it opposes the action, reimburse the plaintiffs for the costs of these proceedings.” 17. By a judgment of 20 September 2004 the Municipal Court ruled in favour of the applicants. It held that they had proved that they and their predecessors had had continuous and exclusive possession of the land in question since at least 1912 and in good faith. Furthermore, it held that the statutory period for acquiring ownership by adverse possession at the relevant time had been twenty years. Consequently, in the applicants’ case that period had elapsed in 1932. The relevant part of that judgment reads: “In the statement of claim it is submitted ... that the plaintiffs and their predecessors had been in possession of the immovable property [in question] for more than 70 years and that they had thereby acquired ownership of that property by adverse possession. ... The plaintiffs base their claim on ... adverse possession. [E]ven if they do not expressly state it, the facts alleged in their statement of claim suggest that they maintain that the requirements for acquiring ownership by adverse possession had been met before 6 April 1941. This means that it was necessary to establish whether the requirements prescribed by the ... laws and other regulations in force at the time were met. ... In the opinion of this court, because of changed economic and social circumstances, the time-limits for acquiring title to property by adverse possession prescribed by ... laws and other regulations in force on 6 April 1941 do not correspond to the principle of protection of legitimate interests of individuals, long-term possessors in good faith, or to the principle of legal certainty. [The court] therefore considers that the period of 20 years is required and sufficient to acquire ownership of immovable property by adverse possession.” 18. In its appeal the respondent authority emphasised that the applicants could not have become the owners of the property in question because prior to 8 October 1991 it had been prohibited to acquire ownership of socially owned property by adverse possession, and that the lifting of that prohibition had not had retroactive effect (see paragraphs 11-15 above). In their reply the applicants responded that it was undisputed that they had been in exclusive possession of the property since the beginning of the twentieth century and thus for more than thirty years even before 6 April 1941. 19. In a judgment of 17 May 2007 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It held that the Municipal Court had established the facts correctly (continuous and exclusive possession of the land in good faith since 1912) but had erred in its application of the substantive law. 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 48, 53-54, 57 and 59-60 below). However, those requirements had not been met in the applicants’ case. That was so because under Article 1472 of the 1811 Civil Code (which was applicable in Croatia from 1852 until 1980, see paragraphs 47-49 and 51 below) immovable property owned by municipal authorities could be acquired by adverse possession only after forty years. However, having regard to the factual findings of the first-instance court, according to which the applicants and their predecessors had possessed the land at issue since 1912 (see paragraph 17 above), that time-limit had not expired before 6 April 1941. The relevant part of that judgment reads: “In calculating the time-limit for acquiring by adverse possession immovable property socially owned on 8 October 1991, the period ... before 8 October 1991 is not to be taken into account because before that date section 29 of the Act on Basic Ownership Relations Act expressly prohibited acquiring ownership of socially owned property by adverse possession. Even though [that] provision was repealed by section 3 of the Act on the Incorporation of the Basic Ownership Relations Act, it is because of that prior express statutory prohibition that the time elapsed before that date cannot be taken into account in calculating the time-limit necessary for acquiring ownership by adverse possession of immovable property socially owned on 8 October 1991, unless [that] time-limit had elapsed before 6 April 1941 under the regulations in force at the time.” 20. The applicants then, on 23 July 2007, lodged a constitutional complaint against the second-instance judgment alleging infringements of their constitutional rights to equality before the law, equality before the courts and fair procedure. In their constitutional complaint they stated, inter alia: “... according to the findings in the contested judgment the plaintiffs ... have been in continuous exclusive possession from 1912 until the present day in good faith. ... The case therefore concerns [such] possession in the period of 90 years before the bringing of the civil action. ... In the instant case the court did not apply the cited provisions even though the plaintiffs’ predecessors had possessed [the property in question] since at least the beginning of the twentieth century and their possession had been continuous until the bringing of the civil action and lasts until the present day. ... If the view that the property in question was socially owned on 8 October 1991 is to be accepted, even though in the land register it was not registered as such in accordance with the [relevant regulations concerning registration of the property in the State and social ownership], then it was, in accordance with the cited statutory provisions, necessary to take into account the entire period of possession until the bringing of the civil action, except [the period] between 6 April 1941 and 8 October 1991.” 21. In a decision of 30 September 2009 the Constitutional Court dismissed the applicants’ constitutional complaint and on 19 November 2009 it served its decision on their representative. The relevant part of that decision reads: “Only those facts on the existence of which depends the assessment of a violation of a constitutional right are relevant for the Constitutional Court. In the civil proceedings ... it was established that ... the complainants ... had been in continuous exclusive possession of the disputed property since at least 1912 and in good faith. ... In the reasoning of its judgment the second-instance court notes that the case concerns immovable property which was socially owned on 8 October 1991 and that, in calculating the time-limit necessary for acquiring ownership by adverse possession of [such] property, the time which elapsed before that date cannot be taken into account. In the examination of the constitutional complaint ... one has to take note of the fact that section 388(4) of the 1996 Property Act was invalidated by the Constitutional Court’s decision of [17 November 1999] ... [I]n that decision the Constitutional Court held that possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time-limit for acquiring ownership by adverse possession. Given that the time-limit for acquiring ownership of property socially owned on 8 October 1991, did not run in the period between 6 April 1941 and 8 October 1991 (which view the Constitutional Court expressed in the decision UIII1595/2006 of 5 February 2009), the court finds that the legal views expressed in the contested judgment of the County Court are based on a constitutionally acceptable interpretation and application of the relevant substantive law.” 22. 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. 23. On 4 April 2002 the applicants brought a civil action in the Split Municipal Court against Split Township, 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. Their statement of claim read as follows: “The plaintiffs together, each in one half, bought from R.K. and M.K. ... the plots of land no. 866/34 (...) ... from T.F. ... the plot of land no. 866/59 (...), ... and from M.S. ... the plot of land no. 866/35 (...) ... EVIDENCE: [The three sale and purchase agreements between the plaintiffs and the above mentioned individuals] The plaintiffs immediately, upon the conclusion of the above sale and purchase agreements entered into possession of all the immovable property listed above. They remained in possession of it until the present day. After the [relevant tax authority ordered them to pay tax] they paid it. EVIDENCE: Tax payment receipt Witness testimonies of R.K., M.K., T.F., and M.S. ... All the above-mentioned immovable property is registered in the land register in the name of the Stobreč Municipality even though the vendors in the enclosed [sale purchase] agreements and their legal predecessors have been in possession of that immovable property for more than 100 years, which means that they acquired ownership of that immovable property by adverse possession. EVIDENCE: Extract from the land register; Witness testimonies of R.K., M.K., T.F., and M.S., ... ; and other evidence, if needed. Given that the vendors were non-registered owners of the above-mentioned immovable property, they have by the sale purchase agreements transferred their right of ownership to the plaintiffs as buyers. [In this way] the plaintiffs, through their legal predecessors, acquired ownership of the plots nos. 866/34 (...), 866/59 (...) and 866/35 (...) ... EVIDENCE: See above. For these reasons it is proposed that the court adopt the following Judgment 1. It is [hereby] established that the plaintiffs Jakov Jakeljić and Ivica Jakeljić are the co-owners, each in one half, of the plots nos. 866/34, 866/59 and 866/35 ... 2. The respondent authority shall within 15 days, on pain of enforcement, provide the plaintiffs with the document containing clausula intabulandi necessary to record the right of ownership in the land register and delete that right as registered to date in the name of the respondent authority’s legal predecessor, the Stobreč Municipality. Otherwise, this judgment shall replace [such document]. 3. The respondent authority shall, within 15 days, on pain of enforcement, reimburse the plaintiffs for the costs of these proceedings.” 24. In the response to the applicants’ action the respondent authority submitted that the property in question had been in social ownership and that, having regard to the Constitutional Court’s decision invalidating section 388(4) of the 1996 Property Act (see paragraph 15 above), the fact of possessing socially owned property before 8 October 1991 could not be taken into account in calculating the time-limit for adverse possession. The applicants replied that the Constitutional Court’s decision to which the respondent authority had referred was of no relevance for the resolution of the dispute. 25. In a judgment of 19 December 2002 the Municipal Court ruled in favour of the applicants. However, following an appeal lodged by the respondent authority, that judgment was quashed on 2 March 2006 by the Osijek County Court (Županijski sud u Osijeku) on procedural grounds. 26. In the resumed proceedings, by a judgment of 1 June 2007, the Split Municipal Court again 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 48, 52 and 59-60 below). It found, however, that the applicants had proved that their predecessors had had continuous and exclusive 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 22 above). The applicants’ predecessors had therefore, under Article 1472 of the 1811 Civil Code (applicable in Croatia from 1852 until 1980, see paragraphs 47-49 and 51 below), acquired ownership of the land by adverse possession even before that date. The relevant part of that judgment reads as follows: “In the response to the action the respondent denied the claim because the property in question had been [in] social ownership and because, pursuant to the Constitutional Court’s decision invalidating section 388(4) of the [1996 Property Act], possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time-limit for acquiring title to property by adverse possession. ... Given that the action was brought in 2002, that in the land register the right of ownership is registered in the name of the Stobreč Municipality, that section 388(4) of the [1996 Property Act] was invalidated by the Constitutional Court’s decision of 17 November 1999 – which means that the fact of possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time necessary for adverse possession – ... the plaintiffs and their predecessors could not have acquired ownership before 1991 unless they manage to prove that they had acquired [it] by adverse possession before 6 April 1941. The plaintiffs’ action evidently relies precisely on that. Therefore, since [for the court] it is beyond dispute that the plot in question had been socially owned on 8 October 1991 ... in order to determine whether it had been acquired by adverse possession it had to be established whether the plaintiffs’ legal predecessors had been in possession of certain quality of the disputed property before 6 April 1941 and thus for the period prescribed for adverse possession by the rules applicable at the time.” 27. In their appeal the respondent authority emphasised that the applicants could not have become the owners of the property in question because prior to 8 October 1991 it had been prohibited to acquire ownership of socially owned property by adverse possession unless the ownership had been acquired in that manner before 6 April 1941. The respondent authority claimed that the lifting of that prohibition had not had retroactive effect (see paragraphs 11-15 above). In their reply the applicants retorted that it was undisputed that they had been in exclusive and continuous possession of the property in good faith for more than a hundred years and that they had in any event acquired ownership thereof by adverse possession, having possessed it for more than forty years before 6 April 1941. 28. In a judgment of 29 May 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It found that 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 out in Article 1472 of the 1811 Civil Code had not therefore expired by 6 April 1941 (see paragraph 51 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 11 above and paragraphs 52-53 below). This had discontinued the running of the statutory time-limits. The time which had elapsed before 6 April 1941 had therefore not continued to run after 8 October 1991 – it had actually started to run again. The relevant part of that judgment reads: “In calculating the time-limit for acquiring by adverse possession immovable property socially owned on 8 October 1991, the period ... before 8 October 1991 is not to be taken into account because before that date section 29 of the Basic Ownership Relations Act expressly prohibited acquiring ownership of socially owned property by adverse possession. Even though [that] provision was repealed by section 3 of the Incorporation of the Basic Ownership Relations Act, it is because of that prior express statutory prohibition that the time which elapsed before that date cannot be taken into account in calculating the time-limit necessary for acquiring ownership by adverse possession of immovable property socially owned on 8 October 1991, unless [that] time-limit had elapsed before 6 April 1941 under the regulations in force at the time.” 29. The applicants then, on 1 August 2008, 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. In their constitutional complaint they, inter alia, stated: “Therefore, from the legal and factual situation where, as in the instant case, the plaintiffs have, themselves and through their predecessors, indisputably been in possession in good faith of the property in question for more than 100 years, and viewing such situation in the light of Croatian law in force, ... it follows that it is necessary to ... quash the contested judgment and remit the case ... If the view that the property in question was socially owned on 8 October 1991 is to be accepted, even though in the land register it was not registered as such in accordance with the [relevant regulations concerning registration of the property in the State and social ownership], then it was, in accordance with the cited statutory provisions, necessary to take into account the entire period of possession until the bringing of the civil action, except [the period] between 6 April 1941 and 8 October 1991. ... by not taking into account the entire period of possession of the property at issue before the bringing of the civil action the court misapplied the substantive law and thereby violated constitutional rights relied on by the plaintiffs.” 30. In 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. The relevant part of that decision reads: “Only those facts on the existence of which depends the assessment of a violation of a constitutional right are relevant for the Constitutional Court. In the civil proceedings ... it was established that ... the complainants ... had been in continuous exclusive possession of the disputed property since at least 1912 and in good faith. ... In the reasoning of its judgment the second-instance court notes that the case concerns immovable property which was socially owned on 8 October 1991 and that in calculating the time-limit necessary for acquiring ownership by adverse possession of [such] property the time which elapsed before that date cannot be taken into account. In the examination of the constitutional complaint ... the Constitutional Court notes that section 388(4) of the 1996 Property Act was invalidated by the Constitutional Court’s decision of [17 November 1999] ... [I]n that decision the Constitutional Court held that possessing socially owned property in the period before 8 October 1991 could not be taken into account in calculating the time-limit for acquiring ownership by adverse possession. Given that the time-limit for acquiring ownership of property socially owned on 8 October 1991 did not run in the period between 6 April 1941 and 8 October 1991 (which view the Constitutional Court expressed in decision UIII1595/2006 of 5 February 2009), the court finds that the legal views expressed in the contested judgment of the County Court are based on a constitutionally acceptable interpretation and application of the relevant substantive law.” 31. In the proceedings before the Chamber the applicants complained that the Split County Court judgments in their cases were in breach of their rights guaranteed by Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention. 32. The relevant part of the application forms in both cases reads as follows: