Overview of the Case-law of the ECHR 2018
Jurisdiction and admissibility
Admissibility (Articles 34 and 35)
Radomilja and Others v. Croatia concerned Articles 32 and 34 of the Convention and in particular the elements that define a complaint and thus the scope of a case referred to the Court.
The case concerns two applications relating to disputes between the applicants and the local authorities over several plots of land that were “socially owned” during the socialist era. Under domestic law it was not possible to acquire socially owned land by adverse possession during socialism (1941-91), although it could have been so acquired before that period. That rule was temporarily derogated from (in 1997) until the Constitutional Court invalidated that derogation (in 1999), thereby restoring the exclusion of the period 1941-91 from the qualifying period for adverse possession. The applicants claimed to have acquired socially owned land by adverse possession. Final domestic decisions rejected their claims, on the basis that they had not possessed the land for the requisite period before 1941. Their constitutional appeals were rejected, although they did not invoke their right to property.
Before the Court they complained under Article 1 of Protocol No. 1 of the domestic courts’ refusal to acknowledge their acquisition by adverse possession, arguing mainly that those courts had wrongly assessed the facts and misapplied domestic law. The Chamber concluded, on the basis of Trgo v. Croatia, that the applicants had acquired the land ex lege while the derogation had been in force and found a violation of Article 1 of Protocol No. 1, thus taking into account the period 1941-91 in the qualifying period for adverse possession. On 28 November 2016 a panel referred the case to the Grand Chamber. The Grand Chamber found that, in so far as the complaints before it included the period 1941-91, they were new because the applicants had not relied on that period before the Chamber. Consequently, those complaints were inadmissible as out of time (the remaining complaints were found not to give rise to a violation of the Convention).
The case is interesting in that the Chamber had based its judgment on a factual (the period 1941-91) and legal basis not invoked by the applicants either before the domestic courts or before the Chamber. The Grand Chamber was required therefore to answer the rather fundamental question of what defines a complaint and thus the scope of a case before the Court and, notably, whether it is the factual allegations, alone or in conjunction with the legal submissions, that define the complaint.
The Grand Chamber found that the scope of the case referred to the Court in the exercise of the right of individual application was determined by the applicant’s complaint, reflecting thereby the principle of ne eat judex ultra et extra petita partium (not beyond the request). A complaint consists of two elements: factual allegations and legal arguments. By virtue of the principle of jura novit curia (the court knows the law), the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under different Articles or provisions of the Convention to those relied upon by the applicant. However, it cannot base its decision on facts not covered by the complaint: to do so would amount to ruling beyond the scope of the case and to deciding on matters not “referred to” it, within the meaning of Article 32. Finally, an applicant (or, indeed, the Court ex officio) can later clarify or elaborate on the facts initially submitted.
In arriving at this conclusion, the Grand Chamber accepted that different strands of the Court’s case-law, while indicating an intrinsic link between the factual and legal submissions, suggested that a complaint is delimited by the facts presented by the applicants. It considered the case-law on exhaustion of domestic remedies to be an exception to that principle, since the Court continues to emphasise the Convention arguments relied on at the national level, finding that a failure to raise legal arguments to the same or like effect based on domestic law leads the Court to conclude that the complaint brought before the authorities had not corresponded in substance to that introduced before the Court and that the applicants had not exhausted domestic remedies. The Grand Chamber thereby emphasised its continued attachment to the principles which afford the State a genuine opportunity of preventing or redressing the alleged violation coherently with the subsidiary character of the Convention system.
In applying these principles to the present case, the Grand Chamber confirmed that the Chamber judgment had been decided on the basis of facts not relied upon by the applicants (the period 1941-91). That judgment was therefore decided beyond the scope of the case as delimited by the applicants’ complaints under Article 1 of Protocol No. 1 and, in particular, by the facts alleged therein. That the applicants now wished to rely on this fifty-year period amounted to raising new and distinct complaints before the Grand Chamber. Applying the admissibility criteria to those new complaints, the Grand Chamber found them to have been introduced outside of the six-month time-limit, and therefore concluded that they were inadmissible.
2. Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, 20 March 2018.
3. Trgo v. Croatia, no. 35298/04, 11 June 2009.