CASE OF RADOMILJA AND OTHERS v. CROATIA (European Court of Human Rights)

GRAND CHAMBER
CASE OF RADOMILJA AND OTHERS v. CROATIA
(Applications nos. 37685/10 and 22768/12)

JUDGMENT
STRASBOURG
20 March 2018

This judgment is final but it may be subject to editorial revision.

In the case of Radomilja and Others v. Croatia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Guido Raimondi, President,
Angelika Nußberger,
Linos-Alexandre Sicilianos,
Ganna Yudkivska,
Robert Spano,
Branko Lubarda,
Vincent A. De Gaetano,
Julia Laffranque,
Erik Møse,
Helen Keller,
Faris Vehabović,
Ksenija Turković,
Egidijus Kūris,
Iulia Motoc,
Síofra O’Leary,
Mārtiņš Mits,
Pere Pastor Vilanova, judges,
and Søren Prebensen, Deputy Grand Chamber Registrar,

Having deliberated in private on 3 May and 4 December 2017,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1.  The case originated in two applications (nos. 37685/10 and 22768/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Croatian nationals, (“the applicants”), on 17 May 2010 and 27 March 2012 respectively. As a result of the Grand Chamber’s decision referred to in paragraph 62 below, the applications were subsequently joined to form a single case.

2.  The applicants were represented by Mr B. Duplančić, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3.  The applicants alleged, in particular, that their right to peaceful enjoyment of their possessions had been violated because the domestic courts had refused to acknowledge the ownership of property they had acquired by adverse possession.

4.  The applications were allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 23 May 2014 and 25 June 2015 respectively, notice of the complaints concerning the property rights was given to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3.

5.  In two judgments of 28 June 2016 (Radomiljaand Others v. Croatia, no. 37685/10, 28 June 2016, and Jakeljić v. Croatia, no. 22768/12, 28 June 2016) a Chamber of the Second Section, by a majority, declared the applications admissible, except in so far as the application in the case of Radomilja and Others had been lodged in the name of Mr Gašpar Perasović (see the Chamber judgment in that case, §§ 38-39). The Chamber in both judgments, by six votes to one, also held that there had been a violation of Article 1 of Protocol No. 1 to the Convention. The Chamber was in each case composed of Işıl Karakaş, President, Nebojša Vučinić, Paul Lemmens, Valeriu Griţco, Ksenija Turković, Stéphanie Mourou-Vikström, Georges Ravarani, judges, and Stanley Naismith, Section Registrar. Judge Lemmens expressed a partly dissenting opinion in the case of Radomiljaand Others and a dissenting opinion in the Jakeljić case.

6.  On 28 September 2016 the Government requested the referral of both cases to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73. On 28 November 2016 a panel of the Grand Chamber accepted the request.

7.  The composition of the Grand Chamber was determined in accordance with the provisions of Articles 26 §§ 4 and 5 of the Convention and Rule 24.

8.  On 16 January 2017 the President of the Grand Chamber, after consulting the parties, decided not to hold a hearing (Rules 71 § 2 and 59 § 3 in fine).

9.  The applicants and the Government each filed written observations on the admissibility and merits. The Government replied in writing to the applicants’ observations, whereas the applicants did not reply to those of the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

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.

A.  Background to the case

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[1] 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.

B.  Proceedings before the domestic courts

1.  Civil proceedings in the case of Radomilja and Others (no. 37685/10)

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 theirownership 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 therelevant 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 adversepossession 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 1912and 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 U‑III‑1595/2006 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.”

2.  Civil proceedings in the Jakeljić case (no. 22768/12)

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 possessionbefore 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 1912and 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 U‑III‑1595/2006 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.”

C.  Proceedings before the Chamber

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:

“III.  STATEMENT OF THE ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS

The applicants consider that … the Split County Court by dismissing the applicants’ action, and the Constitutional Court by dismissing the applicants’ constitutional complaint violated, i.e. breached their rights provided by the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ‘the Convention’), in particular those included in Article 1 of Protocol No. 1 to the Convention, which guarantees the protection of the right of property, and the rights provided by Article 14 of the Convention because the applicants’ are being discriminated and thereby placed in a disadvantageous position compared to other Croatian nationals because in almost the same, i.e. in terms of substantive law and factual background compatible, cases the same court, the Split County Court, has been adopting judgments allowing registration of the right of ownership [in respect of the land] in the immediate vicinity of that of the applicants, to those who make such requests on the basis of undisturbed possession of hundred years.

V.  STATEMENT OF THE OBJECT OF THE APPLICATION

It is the applicants’ intention that this Court … should enable the applicants to record the acquired right of ownership of the land in question in their name”

33.  In the application form in the Jakeljić case (no. 22768/12) the applicants also added:

“Before that court the applicants’ representative had lodged the application in the … [case of Radomilja and Others], which the Court has registered under no. 37685/10. It is therefore suggested to consult that case-file and its enclosures.

Before the Croatian courts in substantially similar cases final judgments were adopted from which it follows that the courts have been granting the claims of those in possession of the land adjacent to that of the applicants, and have been declaring those possessors the owners of that immovable property on the basis of adverse possession that is, undisturbed possession of 20 years , which [period] elapsed by 6 April 1941, and so in accordance with the opinion [expressed at] extended plenary session of the Federal Supreme Court of Yugoslavia of 4 April 1960.

Therefore, [such] different treatment by the courts placed the applicants in an unequal position, which caused them enormous damage.”

34.  On 23 May 2014 and 25 June 2015 respectively, notice of the complaints concerning the alleged violation of their property rights was given to the Government and the remainder of the applications was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court (see paragraph 4 above). The question communicated to the parties in both cases referred to the Court’s judgment in the Trgo case (see Trgo v. Croatia, no. 35298/04, 11 June 2009) and read as follows:

“Was the refusal of the domestic courts to acknowledge the applicants’ ownership of five/three plots of land they claim to have acquired by adverse possession, in violation of their right to peaceful enjoyment of their possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention (see Trgo v. Croatia, no. 35298/04, 11 June 2009)?”

1.  The parties’ submissions before the Chamber

(a)  The Government’s observations

35.  In their observations of 6 October 2014 (in the case of Radomilja and Others) and 20 October 2015 (in the Jakeljić case) the Government argued, inter alia, that the cases had to be distinguished from the Trgo case. In particular, they submitted that, unlike the situation in Trgo, in the instant cases the applicants had instituted civil proceedings after the Constitutional Court had invalidated the 1996 version of section 388(4) of the 1996 Property Act (see paragraphs 15-16 and 23 above and paragraph 56 below). Accordingly, the applicants could not have had legitimate expectations that the said provision would be applied in their case and that their claim to be declared the owners of the property in question would be granted (see Radomilja and Others, cited above, § 43, and Jakeljić, cited above, § 37). The relevant part of their observations in both cases reads:

“… at the time of bringing the civil action, and pursuant to domestic law, the applicants could not have had a legitimate expectation that they would see their claim upheld on the basis of the repealed section 388(4) of the Property Act. That is to say, at the time when the applicants brought their civil action in the Split Municipal Court, neither the provisions of the then valid Property Act, nor the case law of the highest courts of justice in the Republic of Croatia, had provided for the possibility of including the period in question in the time-limit for adverse possession.

… in the Trgo case, the applicant brought a civil action in 1997 to determine the right of ownership due to the expiry of the time-limit for adverse possession. Then (at the time the civil action was brought), the provision of the Property Act that dictated the inclusion of the period from 6 April 1941 to 8 October 1991 in the time-limit for adverse possession was still in force. During these civil proceedings, the Constitutional Court adopted the decision repealing the stated provision of the Property Act, and the applicant lost his case in the end for this reason. Furthermore, the Court noted in that case that repealing a particular legal provision had an ex nunc effect, but that this rule was not applied in the ongoing proceedings. Therefore, the Court concluded that the applicant should not have to suffer the negative consequences of correcting the legislator’s mistake, since the applicant had reasonably relied on legislation that was valid at the time when he initiated the proceedings. Therefore, the Court acknowledged that the applicant in that case had legitimate expectations, and consequently the right of ownership, within the meaning of Article 1 of Protocol No. 1 to the Convention.

However, the situation in the present case is completely different. This is because of the described legislative activity after the decision of the Constitutional Court, but also because of the previously described consistent case-law. Therefore, the applicants in this case, at the time of bringing their civil action in the Split Municipal Court, could not have had any legitimate expectations that the court would acknowledge the time period from 6 April 1941 to 8 October 1991 as being included in the time-limit for adverse possession, and that they would gain recognition of the right of ownership on that basis.

Furthermore, the Government deem that the attitude of the applicants themselves before the domestic bodies, as well as the applicants’ constitutional complaint, clearly show that they did not even have such expectations.

The Government primarily point out that it was disputed before the ordinary courts (i) whether the applicants and their predecessors had been possessors in good faith and fair possessors, (ii) how long the applicants and their legal predecessors had been in possession of the disputed real property before 6 April 1941, and (iii) whether the legal time-limit for adverse possession had expired before 6 April 1941.

At no time was it disputed between the parties in the proceedings whether the possession of the real property in the time period from 6 April 1941 to 8 October 1991 should be included in the time-limit for adverse possession. Furthermore, the applicants expressly claimed before the domestic court that their civil action was based on the fact that the time-limit for adverse possession had expired before 6 April 1941 …

The fact that the applicants themselves did not dispute this is also shown by their constitutional complaint.

… this constitutional complaint shows that the applicants did not believe that this time period should be included in the time-limit for adverse possession in their case, but that it was necessary to include in that time-limit the period during which their legal predecessors had owned the disputed real property before 6 April 1941, and to add the length of possession after 8 October 1991 to that time period.

Finally, the Government observe that, even in their application to the Court, the applicants did not refer to the fact that the domestic courts had miscalculated the time-limit for adverse possession, with regard to the period from 6 April 1941 to 8 October 1991.

The Government additionally observe that the time required for adverse possession of socially-owned real property according to the provisions of the General Civil Code was indisputably 40 years. The applicants did not claim at any time before the domestic courts or the Constitutional Court of the Republic of Croatia that the time required for adverse possession had been shorter. Precisely to the contrary, the applicants argued their constitutional complaint before the Constitutional Court by claiming that the requirement of expiry of the time-limit of 40 years was met, because the time before 6 April 1941 should be added to the time after 8 October 1991, which according to their claims amounted to 41 years (see … the applicants’ constitutional complaint).

In conclusion, it is entirely obvious in this case that the applicants did not ‘rely reasonably on a legislative provision that was later repealed’, but they tried to argue and prove that they met the requirements for adverse possession, in accordance with the legal provisions that were in force at the time the civil action was brought and in accordance with the case-law related to that legislation.

Therefore, this case was about hope in the acknowledgement of the right of ownership, which cannot be considered ‘possessions’ within the meaning of Article 1 of Protocol No. 1 (see Kopecky v. Slovakia, Grand Chamber judgment of 28 September 2004, § 35).

Following the above, the Government deem that the applicants’ application is manifestly ill-founded and should be dismissed under Article 35, paragraph 3 of the Convention.”

(b)  The applicants’ observations in reply

36.  The applicants, in their observations in reply of 3 November 2014 (in the case of Radomilja and Others) and 30 November 2015 (in the Jakeljić case), submitted that Article 1 of Protocol No. 1 to the Convention was applicable because their claims to be declared the owners of the land in question had a sufficient basis in national law, specifically (see Radomilja and Others, cited above,§ 45, and Jakeljić, cited above, § 39):

– in both cases, in the interpretation adopted at the extended plenary session of the Federal Supreme Court of Yugoslavia of 4 April 1960, which was still being applied by the Croatian Supreme Court in cases similar to theirs (see paragraphs 58-60 below), and

– in the Jakeljić case, also in Article 1472 of the 1811 Civil Code (see paragraph 51 below).

According to that interpretation by the Supreme Court a person would have acquired ownership of immovable property by adverse possession after being in possession thereof in good faith for twenty years (see paragraphs 58-60 below).

37.  For the applicants in the case of Radomilja and Others, the issue was whether the period for acquiring ownership by adverse possession had in their case expired before 6 April 1941 or not. The above-mentioned interpretation requiring twenty years of possession in good faith (see the preceding paragraph and paragraphs 58-60 below), coupled with the factual findings of the domestic courts that they and their predecessors had possessed the land in question since 1912 (see paragraphs 17 and 19 and 26-28 above), suggested that it had. They could have therefore legitimately expected that their claim to be declared the owners of that land would be granted. Yet, the Split County Court and the Constitutional Court had misapplied domestic law and dismissed their claim by holding that a period of forty years had been necessary to acquire ownership by adverse possession (see Radomilja and Others, cited above, § 46).

38.  The applicants in Radomilja and Others also contested the factual findings of the domestic courts by arguing that those courts had misinterpreted the witness statement from which they had arrived at the conclusion that the applicants and their predecessors had possessed the land in question since 1912 (see paragraphs 17 and 19 above). In fact, the evidence suggested that they had been in possession of that land since 1900 (ibid., § 47).

39.  In Jakeljić the applicants submitted that the Split Municipal Court had established that their predecessors had been in continuous and exclusive possession of the land in question in good faith for more than forty years before 6 April 1941 (see paragraph 26 above). Yet, the Split County Court, while stating that the Municipal Court had established the facts correctly, had somehow distorted those factual findings by holding that the applicants’ predecessors had actually only been in possession since 1912 (see paragraph 28 above). Had it correctly understood those factual findings, the County Court would have reached the same conclusion as to the law as the Municipal Court, namely that the applicants’ predecessors had, under Article 1472 of the 1811 Civil Code (see paragraph 51 below), acquired ownership of the land by adverse possession before 6 April 1941 (see Jakeljić, § 40).

40.  In the alternative, the applicants in Jakeljić argued that even if their predecessors had possessed the land in question since 1912, they should have acquired it by adverse possession before 6 April 1941 based on the above-mentioned interpretation requiring twenty years of possession in good faith (see paragraph 36 above and paragraph 58 below). The applicants, who had bought the land in question from their predecessors, could therefore have legitimately expected that their claim to be declared owners of that land would be granted. However, the Split County Court and the Constitutional Court had misapplied domestic law and dismissed their claim, holding that a period of forty years had been necessary to acquire ownership by adverse possession (ibid., § 41). Those courts had also wrongly applied the relevant domestic law by refusing to add up the period before 6 April 1941 and that after 8 October 1991 when holding that in between these two periods the running of the statutory time-limit for acquiring ownership by adverse possession had been discontinued (see paragraph 28 above).

41.  In view of those arguments (see paragraphs 36-40 above), the applicants in both casessubmitted that the Court’s findings in the Trgo case were not relevant in their cases (see Radomilja and Others, § 48). In particular, in their reply to the Government’s observations they stated as follows (ibid.):

“… the Court has specified that the case of Trgo v. Croatia is relevant case-law [; this] case does not have the same factual and legal background as the present [one]. In particular, the Trgo case was about acknowledging ownership acquired by adverse possession in the period between 6 April 1941 and 8 October 1991, whereas the applicants herein do not claim that said period should, nor do they have any expectations that the said period would, be taken into account in calculating the time-limit for acquiring ownership by adverse possession given that they acquired the ownership [of the land in question by adverse possession] regardless [of that period]

The Trgo case therefore cannot be regarded as relevant case-law in the present case.”

42.  The applicants in their observations in both cases cited section 388(4) of the 1996 Property Act, as amended by the 2001 Amendment (hereinafter referred to as “the 2001 version of section 388(4)”). They also made the following statements in relation to the issue whether they had legitimate expectations:

“During the domestic proceedings it was established beyond dispute that the applicants had been in possession of [the land in question] since the early 20th century until the present day, and that all this time they had been in peaceful and uninterrupted possession. Furthermore, the applicants believe that on the basis of more than a hundred years of peaceful possession they have a property interest, for which there is a sufficient basis in national law to be regarded as a ‘possession’ protected by Article 1 of Protocol No. 1. Thus, the legitimate expectation of the applicants is based on a reasonable [and] justified reliance on the relevant statutory provisions, on the basis of which they have ex lege acquired ownership by the lapse of time necessary for [acquiring ownership by] adverse possession.

… the Government argued that the applicants at the time they brought their civil action could not have had legitimate expectation that their claim would be granted on the basis of invalidated section 388(4) of the 1996 Property Act – which provision allowed the period between 6 April 1941 and 8 October 1991 to be taken into account in calculating the time-limit for acquiring ownership by adverse possession – because that provision had been invalidated at the time of bringing of the civil action.

It is submitted, first of all, that the applicants’ complaints primarily concern the fact that the second-instance court, in contrast to the first-instance court, did not acknowledge the legal consequences [produced], that is [the right of] ownership which the applicants had acquired, before 6 April 1941.

Besides, from the Government submissions on the merits it follows that they do not comment on the fact …, … which is one of the grounds of this application, that in accordance with the [case-law of the] domestic courts the time-period necessary for acquiring ownership of immovable property in social ownership by adverse possession is 20 years, which has to elapse by 6 April 1941.

However, if the view that the [land 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.

… even if one accepts the factual findings of the domestic courts … that is, that the applicants and their predecessors have been in possession of the [land] in question since 1912 … they possessed [it] for 29 years before 6 April 1941 and for 11 years [in the period] from 8 October 1991 until the bringing of their civil action. This period of [altogether] 40 years is under the relevant provisions of the [1811 Civil Code, 1980 Basic Property Act and the 1996 Property Act] sufficient for acquiring ownership of the [land] in question.

… in the present case the applicant’s predecessors … have possessed [the land in question] as [if they have been the] owners since before 1900 … [T]hey have possessed [the land] in that way before 6 April 1941, between 6 April 1941 and 8 October 1991 and after 8 October 1991 until the present day. They have therefore maintained uninterrupted possession on which grounds they should have, on the basis of the relevant legislation, acquired ownership by adverse possession.

What is important to emphasise is … that no one has ever acquired any rights in respect of the [land in question] nor has anyone except the applicants themselves claimed any rights in respect of [that land]. …

The Government’s argument that the applicants’ could not have had legitimate expectations that their claim would be granted on the basis of invalidated section 388(4) of the 1996 Property Act is entirely misplaced because the applicants do not ask the period between 6 April 1941 and 8 October 1991 to be taken into account in calculating the time-limit for acquiring ownership by adverse possession. It is submitted, first of all, that the applicants have never relied on section 388(4) of the 1996 Property Act nor do they in their application rely on it. [That is so] because that they have, regardless of that time-period, acquired the right of ownership on several grounds and so before 6 April 1941 as well as after 8 October 1991, or until the time they brought the[ir] civil action.

The applicants have therefore at the time they brought the[ir] civil action, in accordance with the relevant statutory provisions which were in force at the time of brining the civil action and in accordance with the relevant case-law, acquired the ownership by adverse possession and so without taking into account the time period between 6 April 1941 and 8 October 1991. If that view is not to be accepted, they have definitely acquired ownership by taking into account the period after 8 October 1991 in which period they have retained uninterrupted peaceful possession of [the land in question] until the present day.

… in accordance with the relevant statutory provisions, case-law and above stated facts it is beyond any doubt that the applicants acquired ownership by adverse possession …

In line with the above it is suggested that the Court refuse the Government’s objections regarding applicability of Article 1 of Protocol No. 1 … and deliver a judgment finding a violation of Article 1 of Protocol No. 1 and enable the applicants to enjoy their right of ownership.”

(c)  The Government’s comments on the applicants’ observations

43.  The Government in their comments of 15 January 2015 (in the case of Radomilja and Others) and of 4 January 2016 (in the Jakeljić case) first reiterated their arguments as to why the applicants had not had legitimate expectations to become the owners of the land in question. In support of their arguments the Government emphasised that in their reply the applicants admitted that section 388(4) of the 1996 Property Act (see paragraphs 56-57 below) as well as the Constitutional Court’s decision of 17 November 1999 (see paragraph 15 above) had no significance in their cases and expressly argued that the cases had a factual and legal background different from the Trgo case (see Radomilja and Others, cited above, § 44, and Jakeljić, cited above, § 38).

44.  In their comments in the Jakeljić case the Government also replied to the applicants’ arguments that the time necessary to acquire ownership by adverse possession had been twenty rather than forty years (see paragraphs 36 and 40 above). In particular, the Government submitted that the applicants had:

“… introduced the complaint on the allegedly inconsistent domestic practice [concerning the time required for adverse possession] only in these proceedings before the Court, in contravention of the principle of subsidiarity. If the applicants considered that their rights were violated by different legal views of domestic courts that were applied in their case, as opposed to other similar cases, they should have brought these complaints to the attention of the Constitutional Court. However, the applicants failed to do so.”

45.  As regards the applicants’ arguments as to why Article 1 of Protocol No. 1 to the Convention was nevertheless applicable (see paragraphs 36-40 and 42 above), the Government submitted that they concerned questions of fact and the application of domestic law, which under the Convention were not the Court’s task to examine (see Radomilja and Others, cited above, § 44, and Jakeljić, cited above, § 38).

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  The Constitutional Court Act

46.  The relevant provision of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/99 with subsequent amendments – “the Constitutional Court Act”), which has been in force since 24 September 1999, reads:

Section 53

“(1)  The Constitutional Court shall invalidate [ukinuti] a statute or its provisions if it finds that they are incompatible with the Constitution …

(2)  Unless the Constitutional Court decides otherwise, the invalidated [ukinuti] statute or its provisions shall cease to have legal force on the date of publication of the Constitutional Court’s decision in the Official Gazette [i.e. ex nunc].”

B.  Property legislation and practice

1.  1811 Civil Code

47.  The Austrian General Civil Codeof1811 (Opći građanski zakonik – “the 1811 Civil Code”) entered into force in the territory of the present-day Croatia on 1 May 1853.

48.  The Act Invalidating Legislation Enacted before 6 April 1941 and during the Enemy Occupation (Zakon o nevažnosti pravnih propisa donesenih prije 6. aprila 1941. i za vrijeme neprijateljske okupacije, Official Gazette of the Federal People’s Republic of Yugoslavia nos. 86/46 and 105/47), enacted in 1946, deprived all legislation in force on 6 April 1941, including the Civil Code, of its legal force. However, it allowed for the application of that pre-war legislation as long as it was not contrary to the Constitution of Yugoslavia or its constituent republics, or the legislation in force.

49.  The Civil Code rules concerning property thus remained applicable under those conditions until the entry into force of the 1980 Basic Property Act (see paragraph 52 below). The relevant provisions of the Civil Code provided as follows.

50.  Article 1468 provided that if immovable property was not recorded in the land register in the name of the person in whose possession it was, the possessor could acquire the ownership of such property by adverse possession after thirty years.

51.  Article 1472 provided that a possessor could acquire ownership of immovable property owned by State, municipal or church authorities by adverse possession after forty years.

2.  The 1980 Basic Property Act

52.  Section 28 of the Basic Ownership Relations Act (Zakon o osnovnim vlasničkopravnim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 6/1980 and 36/1990 – “the 1980 Basic Property Act”), which entered into force on 1 September 1980, provided that a person possessing in good faith immovable property owned by someone else would become its owner by adverse possession after twenty years.

53.  Section 29 prohibited the acquisition of ownership by adverse possession of socially owned property.

54.  Section 3 of the Act on the Incorporation of the Basic Ownership Relations Act (Zakon o preuzimanju zakona o osnovnim vlasničkopravnim odnosima, Official Gazette of the Republic of Croatia no. 53/1991 of 8 October 1991), which legislation entered into force on 8 October 1991, repealed section 29 of the Basic Property Act.

3.  The 1996 Property Act

55.  The relevant provisions of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no. 91/96 with subsequent amendments – “the 1996 Property Act”), which has been in force since 1 January 1997, read as follows:

“Part three

RIGHT OF OWNERSHIP

Chapter 6.

ACQUISITION OF OWNERSHIP

Legal grounds for acquisition

Section 114

(1)  Ownership may be acquired by legal transaction, by decision of a court or other public authority, by succession, or by the operation of law.

Acquisition [of ownership] by the operation of law

(d)  Acquisition by adverse possession

Section 159

(1)  Ownership may be acquired by adverse possession on the basis of the exclusive possession of a [particular] property if such possession is of a quality required by law and has lasted continuously for a period of time determined by law, and if the possessor is capable of being the owner of such property.

(2)  An exclusive possessor who possesses under just title, in good faith and whose possession is free of vice[2] shall acquire ownership of movable property after three years and of immovable property after ten years.

(3)  An exclusive possessor who possesses at least in good faith shall acquire ownership of movable property after ten years and of immovable property after twenty years of continuous exclusive possession.

(4)  An exclusive possessor of a property owned by the Republic of Croatia … shall acquire ownership by adverse possession once his or her … possession has lasted continuously for a period twice as long as that set out in paragraphs 2 and 3 of this section.”

56.  The original text of section 388 of the 1996 Property Act provided as follows:

Section 388

“(1)  The acquisition, modification, legal effects and termination of rights in rem after the entry into force of this Act shall be assessed on the basis of its provisions …

(2)  The acquisition, modification, legal effects and termination of rights in rem until the entry into force of this Act shall be assessed on the basis of the rules applicable at the time of the acquisition, modification or termination of those rights or of their legal effects.

(3)  If the prescribed time-limits for acquiring or terminating rights in rem set out in this Act started to run before its entry into force, they shall continue to run pursuant to paragraph 2 of this section …

(4)  In calculating the period for acquiring by adverse possession immovable property socially owned on 8 October 1991, and for acquiring [other] rights in rem over such property, the period before that date shall also be taken into account.”

57.  After the Constitutional Court, on 17 November 1999, had invalidated paragraph 4 of section 388 of the 1996 Property Act as unconstitutional (see paragraph 15 above), that provision was amended by the 2001 Amendment to the 1996 Property Act(Zakon o izmjeni i dopuni Zakona vlasništvu i drugim stvarnim pravima, Official Gazette no. 114/01), which entered into force on 20 December 2001. The new text of paragraph 4 reads as follows:

“In calculating the period for acquiring by adverse possession immovable property socially owned on 8 October 1991, and for acquiring [other] rights in rem over such property, the period before that date shall not be taken into account.”

4.  Relevant practice

58.  According to the interpretation adopted at the extended plenary session of the Federal Supreme Court of Yugoslavia of 4 April 1960, a person in possession of immovable property in good faith acquired ownership of it by adverse possession after twenty years.

59.  The applicants drew the Court’s attention to the fact that the Supreme Court of Croatia had referred to this interpretation as valid law at the time. It appears that it did so in eight of its decisions. In case no. Rev 250/03-2 of 16 June 2004 it held as follows:

“Since it was established that the disputed property was, on 8 October 1991, in social ownership … in order to determine whether it had been acquired by adverse possession, in applying the current paragraph 4 of section 388 of the [1996] Property Act, it must be ascertained whether the plaintiff, through its legal predecessors, was in possession of the disputed property before 6 April 1941 [and thus for a sufficiently long time] to become its owner by adverse possession according to the provisions applicable at the time and the way they were applied, pursuant to the interpretation adopted at the extended plenary session of the Federal Supreme Court of Yugoslavia of 4 April 1960.”

60.  In case no. Rev-x 51/13-2 of 23 July 2014, the Supreme Court held as follows:

“The lower courts dismissed the plaintiff’s action because they found that the plaintiff had begun to acquire … ownership of the property by adverse possession from its purchase in [1969], at a time when it was [still] in private ownership. The [period for acquiring ownership by] adverse possession therefore began [to run] before the entry into force of the [1980] Basic Property Act, at a time when the rules of the former [1811] Civil Code were still applicable. Under Article 1468 of the [1811] Civil Code the period of thirty years, or twenty years according to the interpretation adopted at the extended plenary session of the Federal Supreme Court of Yugoslavia of 4 April 1960, was necessary to acquire ownership by adverse possession. That period had not expired at the time the [1980] Basic Property Act entered into force, and thus continued to run [in accordance with that Act]. The period necessary for acquiring ownership by adverse possession would have expired in 1989. [However, by that time the property was already in social ownership, having been transferred in 1983]. Given that at the time the property was transferred into social ownership (1983) the period of twenty years for acquiring ownership by adverse possession had not expired, because the time between 1983 and 8 October 1991 (when section 29 of the [1980] Property Act was repealed) does not count towards the period necessary to acquire ownership by adverse possession, the plaintiff did not become the owner of the property by adverse possession.”

C.  Civil procedure legislation

61.  The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments) provide as follows:

Section 2(1)

“In civil proceedings the court shall decide within the bounds of the claim submitted in the proceedings.”

Section 186(3)

“The court shall proceed on an action even if the plaintiff has not indicated the legal basis for his or her claim; and if the plaintiff has indicated the legal basis the court shall not be bound by it.”

Section 354(2)

“Serious breaches of civil procedure shall always arise if:

(12)  [the court has in] the judgment exceeded the claim [i.e. has decided ultra or extra petitum].”

THE LAW

I.  JOINDER OF THE APPLICATIONS

62.  Given that the two applications concern similar facts and complaints and raise identical issues under the Convention, the Court decides to join them, pursuant to Rule 42 § 1 of the Rules of the Court.

II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

63.  The applicants complained that the impugned Split County Court judgments (see paragraphs 19 and 28 above) had deprived them of property they had acquired by operation of law. They relied on Article 1 of Protocol No. 1 to the Convention, which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

64.  The Government contested that argument.

A.  The Chamber judgments

65.  In the two judgments of 28 June 2016 the Chamber did not find it necessary to decide on the applicants’ arguments as to the applicability of Article 1 of Protocol No. 1 to the Convention (see paragraphs 36-40 and 42 above) because it held that the Article in question was in any event applicable.

66.  In particular, the Chamber held that certain factual differences between the present applications and the Trgo case were not sufficient for the Court to reach a different conclusion. The Chamber therefore applied the approach enunciated in the Trgo judgment, which entailed taking into account the period between 6 April 1941 and 8 October 1991 for the purposes of establishing whether the applicants’ claims to be declared the owners of the land in question had a sufficient basis in national law to qualify as an “asset” protected by Article 1 of Protocol No. 1 to the Convention (see Radomilja and Others, cited above, §§ 50-52, and Jakeljić, cited above, §§ 43-45).

67.  Having regard to the factual findings of the domestic courts, according to which the applicants and/or their predecessors had been in possession, in good faith, of the land in question for a sufficient length of time before the entry into force of the 1996 Property Act, the Chamber held that the applicants had, on the basis of the original version of section 388(4) of the 1996 Property Act, ex lege become the owners of that land on 1 January 1997 when that Act had entered into force (see Radomilja and Others, cited above, § 53, and Jakeljić, cited above, § 46).

68.  The Chamber thus concluded that at the time of the alleged interferences (see paragraphs 19 and 28 above) the applicants’ claims to be declared the owners of the land had a sufficient basis in national law to qualify as an “asset” protected by Article 1 of Protocol No. 1 to the Convention (see Radomilja and Others, cited above, § 53, and Jakeljić, cited above, § 46).

69.  As regards the Government’s argument that the applicants had admitted that their applications had a factual and legal background which was different from that of the Trgo case (see paragraph 43 above), the Chamber held (see Radomilja and Others, cited above, § 54, and Jakeljić, cited above, § 47):

“… a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 I). It further reiterates that the issue whether a particular Article of the Convention or a Protocol thereto is applicable or not, is a matter that goes to the Court’s jurisdiction ratione materiae. The scope of the Court’s jurisdiction is determined by the Convention itself, in particular by its Article 32, and not by the parties’ submissions in a particular case. Accordingly, the Court has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction of its own motion (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006‑III; and Nylund v. Finland (dec.), no. 27110/95, 29 June 1999).”

70.  The Chamber then proceeded to examine the merits of the case and, by six votes to one, found a violation of Article 1 of Protocol No. 1 in each case (see Radomilja and Others, cited above, §§ 59-63, and Jakeljić, cited above, §§ 52-56). In so holding, the Chamber relied on the Court’s reasoning in the Trgo judgment to the effect that, unless third parties’ interests were involved, it was not justified to exclude the period between 6 April 1941 and 8 October 1991 from the time necessary to acquire ownership of socially owned property by adverse possession.

B.  The parties’ arguments before the Grand Chamber

1.  The Government

71.  The Government argued that the Chamber judgments were based on facts and legal arguments which had not been part of either the applicants’ complaints before the Court or their case before the domestic courts. They therefore invited the Court to either:

– strike the applications out of its list of cases, or

– declare the applications inadmissible for failure to exhaust domestic remedies.

72.  The Government noted, at the outset, that the Chamber had found a violation of the applicants’ property rights because it considered that (see Radomilja and Others, cited above, § 62, and Jakeljić, cited above, § 55):

“… the applicants, who reasonably relied on legislation later quashed as unconstitutional, should not – in the absence of any prejudice to the rights of others – bear the consequences of the State’s own mistake committed in enacting such unconstitutional legislation.”

73.  However, the Government emphasised that in their submissions before the Chamber the applicants had not explicitly or in substance relied on the invalidated 1996 version of section 388(4) of the 1996 Property Act (see paragraph 56 above). What is more, they had expressly objected to the application of that provision in their case as being irrelevant (see paragraph 41 above).

74.  Rather, in their application form the applicants had complained that they had been discriminated against because, allegedly, in legally and factually similar cases, the domestic courts had been granting the plaintiffs’ claims (see paragraphs 32-33 above). Furthermore, from their observations in reply to those of the Government (see paragraphs 36-40 and 42 above), it was evident that the applicants had:

– considered that they had acquired the ownership of the land in question before 6 April 1941;

– complained about the alleged inconsistent interpretation by the domestic courts as to the time necessary for acquiring ownership by adverse possession (twenty or forty years) regarding the period before 6 April 1941;

– disputed the factual findings of the domestic courts that they had possessed the land only from 1912, claiming that their possession had started earlier;

– argued that, in any event, the period after 8 October 1991 should have been added to the one that had elapsed before 6 April 1941.

75.  Furthermore, by virtue of certain statements made in those observations before the Chamber (see paragraphs 41-42 above) the applicants had in their case:

– rejected the application of the invalidated section 388(4) of the 1996 Property Act;

– stated that their case had a factual and legal background different from the Trgo case; and

– excluded the period between 6 April 1941 and 8 October 1991 from the time necessary for acquiring ownership by adverse possession.

76.  The Government did not dispute the principle that the Court was competent to give a set of facts a different legal characterisation by, for example, examining an alleged violation of Article 8 under Article 3 of the Convention. However, this did not mean that the Court was entitled to discern, for example, from the documents provided by an applicant, facts that he or she had never complained of, and still less to do so against his or her wishes.

77.  The Government argued that in the present case the Chamber had not only given a different characterisation in law to the facts of the case but had, contrary to the applicants’ own submissions (see paragraph 75 above), re-characterised the complaints in such a far-reaching manner that it had changed the essence of those complaints and the case as such. If the Court were to identify proprio motu complaints which had never been raised by the applicants, it would be overstepping its role. If the Grand Chamber were to accept such an approach, it would undermine legal certainty, as the scope of the case before the Court would remain unclear to the parties until the Court delivered its decision.

78.  According to the Government, if the Grand Chamber were to accept the Chamber’s recharacterisation of the applicants’ complaints, entailing examination of a case that was legally and factually completely different from the case that had been brought before the national authorities, that would run counter to the principle of subsidiarity.

79.  Furthermore, the Chamber’s re-characterisation was at odds with the Court’s existing case-law. For example, in the Stojaković case (see Stojaković v. Croatia (dec) [Committee], no. 6504/13, 12 January 2016), the Court had struck the application out of its list of cases because the applicants’ representative had informed the Court that they had not complained about the lack of an effective investigation into the deaths of their relatives but about the civil proceedings in which they had sought damages for the deaths. The Government saw no reason why the same approach should not apply to the present case.

80.  For these reasons (see paragraphs 72-79 above), the Government invited the Court to strike the applications out of its list of cases.

81.  In the alternative, the Government invited the Court to declare the applications inadmissible for failure to exhaust domestic remedies. In addition to the above reasons (see paragraphs 72-79), which the Government considered equally relevant in the context of exhaustion, they advanced the following arguments.

82.  The Government claimed that before the domestic courts the applicants had never relied on section 388(4) of the 1996 Property Act. Rather, they had claimed that they had acquired ownership of the land in question before 6 April 1941. In their constitutional complaints the applicants, while arguing that the entire period of their possession of the land should have been taken into account, had explicitly excluded the period between 6 April 1941 and 8 October 1991 (see paragraphs 20 and 29 above). According to the Government, this followed also from certain findings of the domestic courts.

83.  Thus the domestic courts had, in line with the applicants’ submissions, dealt only with the question of the duration of the applicants` adverse possession and not with the issue whether the period between 1941 and 1991 should have been included in the calculation.

84.  The Government emphasised that the domestic courts could not have examined that issue proprio motu because under the Civil Procedure Act they were bound by the plaintiff’s claim and the factual basis of the case. Deciding beyond the scope of a case so delimited would constitute a serious breach of civil procedure (see section 354(2) of the Civil Procedure Act cited in paragraph 61 above). In cases involving adverse possession – a legal concept that transformed a factual situation into a right – staying within those limits was even more important. One of the requirements for acquiring ownership by adverse possession was the passing of a certain uninterrupted period of time, a fact which a plaintiff had to argue and prove.

85.  The Government further stressed that the Convention was directly applicable in Croatia and contended that the applicants could and should therefore have relied on it at least before the Constitutional Court. However, they had not done so (see paragraphs 20 and 29 above).

86.  Furthermore, the Government argued that the Trgo principles were highly complex both from a legal and factual point of view. Accordingly, they could not be properly addressed unless the plaintiff made very specific submissions to that effect and the respondent was given an opportunity to dispute them. For example, the existence of rights of third persons was a factor that weighed heavily in examining a case under Article 1 of Protocol No. 1 to the Convention. However, in the present case the respondent authority had not had an opportunity to submit evidence in that regard. Neither had the domestic courts had a chance to consider that issue because it had not constituted the subject matter of the dispute. Therefore, the Government could not speculate whether third persons had an interest in the land in question, as that issue had not been examined before the domestic courts.

87.  In view of these considerations (see paragraphs 81-86 above), the Government maintained that the applicants had had the opportunity to argue in the domestic proceedings that they had become owners of the land ipso jure on 1 January 1997, as the Chamber had established, and/or that the period between 1941 and 1991 should be taken into account for calculating the time necessary for acquiring ownership by adverse possession. However, they had not availed themselves of that opportunity.

88.  As regards the issue whether, excluding the period between 6 April 1941 and 8 October 1991, the applicants’ claims to be declared the owners of the land in question had had a sufficient basis in national law such as to be considered “possessions” in terms of Article 1 of Protocol No. 1, the Government, in substance, reiterated their arguments before the Chamber (see paragraph 45 above).

2.  The applicants

89.  The applicants stressed at the outset that they fully agreed with the Chamber’s findings in its judgments of 28 June 2016.

90.  As regards the Government’s arguments concerning the scope of their case before the domestic courts, the applicants were particularly critical of the Government’s assertion that the domestic courts had, in line with the applicants’ submissions, not dealt with the issue whether the period between 1941 and 1991 should have been taken into account in calculating the duration of adverse possession (see paragraph 83 above). They submitted that this assertion was erroneous because both the first-instance and second-instance courts in their judgments, and the Constitutional Court in its decisions, had evidently dealt with that issue. With regard to the amended (2001 version of) section 388(4) of the 1996 Property Act, they had wrongly and unlawfully found that the period in question should not be taken into account in calculating the time necessary for acquiring ownership of the land by adverse possession (see paragraphs 17, 19, 21, 26, 28 and 30 above). The domestic courts had therefore examined that issue independently of the applicants’ submissions, in line with section 186(3) of the Civil Procedure Act (see paragraph 61 above). This meant that their respective domestic cases, as decided by the national courts, in terms of domestic law constituted res judicata, which prevented re-examination of the matter due to the ne bis in idem principle.

91.  As regards the scope of the case before the Court, the applicants contested the Government’s argument that in the Strasbourg proceedings they had excluded the period between 6 April 1941 and 8 October 1991 from the factual basis of their complaints and had waived the application of the Trgo precedent (see paragraph 75 above).

92.  In that connection they first emphasised that they had never denied that they had possessed the land in question in the said period. In fact, they had several times during the proceedings before the Court stated that their possession had been uninterrupted and of the same quality since the beginning of the twentieth century, including the said period. Moreover, they had never stated that the period in question should not be taken into account. Nor could such a statement have had any effect, given the nature of the matter and that the scope of the Court’s jurisdiction was determined by the Convention itself, in particular by Article 32, not by the parties’ submissions in a particular case (see Radomilja and Others, cited above, § 54, and Jakeljić, cited above, § 47, and the cases cited therein).

93.  Second, the applicants submitted that they had not waived the application of the Court’s reasoning in its Trgo judgment but that they:

– had merely pointed to some differences in the factual and legal background between their case and the Trgo case, such as, for example, the fact that the statutory time-limit for acquiring ownership by adverse possession had started to run at different times, and

– had argued that they entertained legitimate expectations, even if the Trgo jurisprudence was inapplicable to their situations.

However, certain facts in Trgo and in their case were identical. Those facts had been correctly recognised by the Chamber as being decisive (see Radomilja and Others, cited above, §§ 51-53 and 59-63, and Jakeljić, cited above, §§ 44-46 and 52-56).

94.  In the alternative, the applicants argued that the Court should have afforded them the protection sought, even if they had waived the application of the Trgo jurisprudence. That was so because the Court was not bound by the applicants’ legal arguments. Otherwise, the principle of jura novit curia would be rendered meaningless and there would be no need to conduct the proceedings before the Court.

95.  In that respect the applicants pointed out that in their referral request the Government had themselves acknowledged the Court’s right to attribute to the facts of the case, as found to be established on the evidence before it, a characterisation in law different from that given by an applicant or to view the facts in a different manner. In the applicants’ opinion that was precisely what the Chamber had correctly done in the judgments of 28 June 2016.

96.  In conclusion, the applicants argued that it would be wrong for the Grand Chamber to overturn the Chamber judgments and choose not to apply the Trgo jurisprudence to their case only because they had argued before the Chamber that they had had legitimate expectations even if the said jurisprudence was inapplicable. To do so in the present situation – where the facts highlighted by the applicants in the proceedings before the Court and those established before domestic courts undoubtedly suggested that the Trgo jurisprudence was relevant – would mean that the Court would depart from its case-law according to which a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on. This would also mean that an erroneous legal argument by an applicant would be sufficient for the Court to disregard the facts of the case and the legal issues which they might raise. If such a view were to be accepted, only applicants who advanced precisely the same legal arguments as those which the Court found relevant for finding a violation would be successful. The Court would then have abdicated its role in adjudicating cases by merely upholding or rejecting complaints depending on the legal arguments submitted by applicants.

97.  The applicants therefore invited the Grand Chamber to uphold the Chamber judgments. In addition, they reiterated their main argument before the Chamber that they had, in any event, acquired ownership of the land in question even prior to 6 April 1941 (see paragraphs 36-40 and 42 above). By refusing to acknowledge the ownership they had ipso jure acquired by adverse possession, the domestic courts had breached their rights protected by Article 1 of Protocol No. 1.

C.  The Court’s assessment

1.  As regards the period between 6 April 1941 and 8 October 1991

98.  The crux of the Government’s argument was that the complaints communicated and later on decided by the Chamber were not the same as those brought by the applicants before the Court, nor did they correspond to the claims brought before the domestic courts (see paragraphs 35, 43 and 71-88 above). Thus, the Chamber had (a) taken into account the period between 6 April 1941 and 8 October 1991 and had (b) relied on the 1996 version of section 388(4) of the 1996 Property Act. However, the applicants had not relied on the period or the provision in question, neither before the Court nor before the domestic courts. Likewise, before the Court the applicants had not relied on the Trgo case. Rather, in their observations before the Chamber (see paragraphs 41-42 above) the applicants had expressly excluded the said period from the factual basis of their complaint and had objected to the application of (the 1996 version of) section 388(4) of the 1996 Property Act and the Trgo judgment to their cases. While before the Chamber the Government had averred that these arguments should lead the Court to find that the applicants’ property complaints were inadmissible as manifestly ill-founded (see paragraph 35 above), before the Grand Chamber they submitted that the same arguments should result in the Court either declaring those complaints inadmissible for failure to exhaust domestic remedies or striking the case out of its list (see paragraphs 71-88 above).

99.  The applicants, on the other hand, argued before the Grand Chamber that the domestic courts had, in any event, examined their case in the light of the (2001 version of) section 388(4) of the 1996 Property Act (see paragraph 90 above). In their view, the courts of first and second instance and the Constitutional Court had clearly concerned themselves in their decisions also with the question of whether the period from 1941 to 1991 had to be included in the calculation of the period of adverse possession and had wrongly and unlawfully found that the period in question was not to be included in that calculation, specifically because of the amended, 2001 version, of section 388(4) of the 1996 Property Act, which had come into force on 20 December 2001. Likewise, for the applicants, their alleged objection before the Chamber against having the Trgo jurisprudence applied to their cases was of no relevance, because the Court was not bound by their legal arguments, especially when examining matters pertaining to its jurisdiction (see paragraphs 92 and 94 above).

100.  In view of these arguments by the parties, the Grand Chamber considers that it must first determine the scope of the case before it.

(a)  The scope of the case

101.  The Court reiterates that, according to its case-law, the “case” referred to the Grand Chamber is the application as it has been declared admissible (see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001‑VII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, ECHR 2007‑IV; and Blokhin v. Russia [GC], no. 47152/06, § 91, ECHR 2016).

102.  However, this does not mean that the Grand Chamber may not also examine, where appropriate, issues relating to the admissibility of the application in the same manner as this is possible in normal Chamber proceedings, for example by virtue of Article 35 § 4 in fine of the Convention, or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage (see K. and T. v. Finland, cited above, § 141, and Blečić v. Croatia [GC], no. 59532/00, § 65, ECHR 2006‑III). Thus, even at the merits stage the Grand Chamber may reconsider a decision to declare an application admissible if it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (ibid.).

103.  It notes in this connection that on 23 May 2014 and 25 June 2015, respectively, notice of the applicants’ complaints under Article 1 of Protocol No. 1 was given to the Government, whereas the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court (see paragraphs 4 and 34 above). It further notes that in Radomilja and Others the Chamber, in its judgment of 28 June 2016, declared that application inadmissible in so far as it had been lodged in the name of Mr Gašpar Perasović (see paragraph 5 above, and Radomilja and Others, cited above, §§ 38-39).

104.  The Court further observes that, in so far as the applications concerned the applicants’ complaints under Article 1 of Protocol No. 1, the Chamber did not declare any part of the substance of those complaints, as formulated in their applications, inadmissible. Thus, “the cases” as referred to the Grand Chamber encompass all aspects of the applicants’ complaints as submitted to, and as examined by, the Chamber.

105.  Bearing in mind the Government’s submissions that the Chamber acted beyond the scope of the case (see paragraphs 71-80 and 98 above), the Grand Chamber will first have regard to the general criteria for defining the scope of a case.

(i)  General criteria for defining the scope of a case

106.  Under Article 32 of the Convention, the Court’s jurisdiction “shall extend to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it”. The exact meaning of this clause is defined in certain other Articles of the Convention to which reference is made in this provision (see Lawless v. Ireland (no. 1), 14 November 1960, p. 8, Series A no. 1), including in Article 34 on individual applications.

107.  Article 34 of the Convention reads:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

108.  In this connection, it should be reiterated that, according to the Court’s established case-law, the international system of protection established by the Convention functions on the basis of applications, be they governmental or individual, alleging violations of the Convention, and therefore does not enable the Court to either take up a matter irrespective of the manner in which it came to its knowledge or even, in the context of pending proceedings, to seize on facts that have not been adduced by the applicant – be it a State or an individual – and to examine those facts for compatibility with the Convention (see Foti and Others v. Italy, 10 December 1982, § 44, Series A no. 56).

109.  That finding reflects one of the fundamental principles of procedure under international and domestic (civil and administrative) law: ne eat judex ultra et extra petita partium (“not beyond the request”), it being understood that the petitum is the complaint submitted by the applicant. This finding suggests that the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant’s complaint or “claim” – which is the term used in Article 34.

(α)  The notion of complaint

110.  The wording of Article 34 indicates that a “claim” or complaint in Convention terms comprises two elements, namely factual allegations (i.e. to the effect that the claimant is the “victim” of an act or omission – see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51) and the legal arguments underpinning them (i.e. that the said act or omission entailed a “violation by [a] Contracting Party of the rights set forth in the Convention or the Protocols thereto”). These two elements are intertwined because the facts complained of ought to be seen in the light of the legal arguments adduced and vice versa.

111.  Noteworthy illustrations of this intrinsic link between the factual and legal components of a complaint may be found in the Rules of Court and in the Court’s case-law.

112.  Rule 47 § 1 (e)-(f) of the Rules of Court, for example, provides that all applications must contain, inter alia, a concise and legible statement of the facts and of the alleged violation(s) of the Convention and the relevant arguments. By virtue of Rule 47 § 5.1, a failure to comply with these requirements, among others, may, under certain conditions, result in the application not being examined by the Court.

113.  This relationship between the factual and legal components of a complaint is also reflected in the Court’s case-law, notably, in the oft-cited statement in paragraph 44 of the Guerra judgment that “a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on” (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I).

114.  The afore-mentioned dictum from the Guerra judgment features at the end of a statement dealing specifically with the jura novit curia principle (ibid.):

“… since [it] is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant, a government or the Commission. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on.”

115.  The statement in Guerra is in line furthermore with ample case-law suggesting that, while it is not possible to state in the abstract the importance of legal arguments, a complaint is always characterised by the alleged facts. The latter emerges for example:

(a)  in the context of determining the scope of a case referred to the Court by the former European Commission on Human Rights (see Delcourt v. Belgium, 17 January 1970, §§ 20 and 39-40, Series A no. 11; Handyside v. the United Kingdom, 7 December 1976, § 41, Series A no. 24; Johnston and Others v. Ireland, 18 December 1986, §§ 47-48, Series A no. 112; Powell and Rayner v. the United Kingdom, 21 February 1990, §§ 28-29, Series A no. 172; Philis v. Greece (no. 1), 27 August 1991, §§ 55-56, Series A no.  209; and Contrada v. Italy, 24 August 1998, §§ 45-50, Reports 1998-V) and, after the entry into force of Protocol No. 11, when determining the scope of a case before the Grand Chamber in the light of the Chamber’s decision on (in)admissibility (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 45 and 48-57, 17 September 2009);

(b)  in other cases where the Court has applied the jura novit curia principle (see Guzzardi v. Italy, 6 November 1980, §§ 2 and 53-63, Series A no. 39, Foti and Others, cited above, §§ 42-44; Guerra, cited above, § 44; Vasilopoulou v. Greece (dec.), no. 47541/99, 22 March 2001; Kornakovs v. Latvia (dec.), no. 61005/00, 21 October 2004; Moisejevs v. Latvia (dec.), no. 64846/01, 21 October 2004; Põder and Others v. Estonia (dec.), no. 67723/01, ECHR 2005‑VIII; Brosset-Triboulet and Others v. France (dec.), no. 34078/02, 29 April 2008; B.B. v. France, no. 5335/06, §§ 47-48 and 56, 17 December 2009; Mocny v. Poland (dec.), no. 47672/09, 30 November 2010; Tinner v. Switzerland, nos. 59301/08 and 8439/09, §§ 67-75, 26 April 2011; and Ürün v. Turkey, no. 36618/06, §§ 35-37, 4 October 2016);

(c)  in the application of the six-month rule (see Allan v. the United Kingdom (dec.), no. 48539/99, 28 August 2001; Zervakis v. Greece (dec.), no. 64321/01, 17 October 2002; Houfová v. the Czech Republic (no. 1), no. 58177/00, §§ 29-34, 15 June 2004; Sâmbata Bihor Greek Catholic Parish v. Romania (dec.), no. 48107/99, 25 May 2004; Božinovski v. the former Yugoslav Republic of Macedonia (dec.), no. 68368/01, 1 February 2005; Adam and Others v. Germany (dec.), no. 290/03, 1 September 2005; Marchiani v. France (dec.), no. 30392/03, 24 January 2006; and Răducanu v. Romania, no. 17187/05, §§ 56-60, 12 June 2012);

(d)  in cases examining whether an application or a complaint is substantially the same within the meaning of Article 35 § 2 (b) of the Convention (see Previti v. Italy (dec.), no. 45291/06, §§ 293-294, 8 December 2009; Kafkaris v. Cyprus (dec.), no. 9644/09, § 68, 21 June 2011; Kuppinger v. Germany, no. 62198/11, §§ 87-92, 15 January 2015; and Tsartsidze and Others v. Georgia, no. 18766/04, §§ 64-66, 17 January 2017).

116.  In the context of the exhaustion of domestic remedies, most notably in cases involving issues of exhaustion in substance, the Court has, along with the factual situation presented in the light of national law, placed emphasis on the Convention arguments relied upon at the national level (see, for example,Guzzardi, cited above, § 72; Glasenapp v. Germany, 28 August 1986, § 45, Series A no. 104; Cardot v. France, 19 March 1991, §§ 32-36, Series A no. 200; B. v. France, 25 March 1992, §§ 37-39, Series A no. 232-C; Castells v. Spain, 23 April 1992, §§ 24-32, Series A no. 236; Gasus Dosier- und Fördertechnik GmbH v. the Netherlands, 23 February 1995, §§ 47-49, Series A no. 306-B; Ahmet Sadık v. Greece, 15 November 1996, §§ 27-34, Reports 1996-V; Fressoz and Roire v. France [GC], no. 29183/95, §§ 33-39, ECHR 1999-I; Azinas v. Cyprus [GC], no. 56679/00, §§ 38-42, ECHR 2004-III; Gäfgen v. Germany [GC], no. 22978/05, §§ 142-146, ECHR 2010; Gatt v. Malta, no. 28221/08, §§  21‑25, ECHR 2010; Association Les témoins de Jéhovah v. France (dec.), no. 8916/05, 21 September 2010; Karapanagiotou and Others v. Greece, no. 1571/08, §§ 25-30, 28 October 2010;and Merot d.o.o. and Storitve Tir d.o.o. v. Croatia (dec.), no. 29426/08 and 29737/08, 10 December 2013). In some of these cases the applicants’ failure to rely before the domestic authorities on the Convention, or on legal arguments to the same or like effect based on domestic law, led the Court to conclude that the complaint brought before those authorities had not corresponded, in substance, to the one subsequently brought before the Court. In these circumstances the applicants were considered not to have exhausted domestic remedies (see, notably, Ahmet Sadık, cited above, §§ 29-34, and Azinas, cited above, §§ 37-42).

117.  The purpose of the exhaustion rule is to afford a Contracting State the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, for example, Azinas, cited above, § 41). It is true that under the Court’s case-law it is not always necessary for the Convention to be explicitly raised in domestic proceedings provided that the complaint is raised “at least in substance” (see, for example, Glasenapp, cited above, § 44, and Castells, cited above, § 32). This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach (see, for example, Van Oosterwijck v. Belgium, 6 November 1980, § 34, Series A no. 40, and Azinas, cited above, § 38). However, as the Court’s case-law bears out, to genuinely afford a Contracting State the opportunity of preventing or redressing the alleged violation requires taking into account not only the facts but also the applicant’s legal arguments (see, for example, Ahmet Sadık, cited above, §§ 29-34, and Azinas, cited above, §§ 38-42), for the purposes of determining whether the complaint submitted to the Court had indeed been raised beforehand, in substance, before the domestic authorities. That is because “it would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument” (see Azinas, cited above, § 38).

118.  The same considerations do not apply as regards other admissibility requirements (see paragraph 115 above). The primary purpose of the six‑month rule is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time. It reflects the wish of the High Contracting Parties to prevent past judgments being constantly called into question, and also facilitates the establishment of the facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see, for example, Sabri Güneş v. Turkey[GC], no. 27396/06, § 39, 29 June 2012).

119.  The purpose of the rule enunciated in Article 35 § 2 (b) of the Convention is: (i) to ensure the finality of the Court’s decisions and to prevent applicants from seeking, through the lodging of a fresh application, to appeal against previous judgments or decisions of the Court (see the Kafkaris decision, cited above, and Harkins v. the United Kingdom (dec.)[GC], no. 71537/14, § 41, ECHR 2017), and (ii) to avoid the situation where several international bodies would be simultaneously dealing with applications which are substantially the same, that is, a situation which would be incompatible with the spirit and the letter of the Convention, which seeks to avoid a plurality of international proceedings relating to the same cases (see OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 520, 20 September 2011).

120.  To fulfil the purposes set out in the two preceding paragraphs the Court needs to take into account the facts complained of. Therefore, when applying the six-month rule and in order to determine whether an application or a complaint is substantially the same in terms of Article 35 § 2 (b) of the Convention, the complaint is, as already noted above (see paragraph 115), always characterised by the facts alleged in it. The new legal grounds or arguments thus “cannot change the core of a complaint” (see Tsartsidze and Others, cited above, § 66) and the six-month rule is not opposable to them (see Bengtsson v. Sweden, no. 18660/91, Commission decision of 7 December 1994, Decisions and Reports (DR): 79, p. 11; and Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57, p. 108).

121.  Therefore, while the Court has jurisdiction to review circumstances complained of in the light of the entirety of the Convention or to “view the facts in a different manner” (see Foti and Others, cited above, § 44), it is nevertheless limited by the facts presented by the applicants in the light of national law. As already stressed above (see paragraph 108) the system of protection established by the Convention does not enable it to seize on facts that have not been adduced by the applicant and to examine those facts for compatibility with the Convention (ibid.).

122.  However, this does not prevent an applicant from clarifying or elaborating upon his or her initial submissions during the Convention proceedings. The Court has to take account not only of the original application but also of the additional documents intended to complete the latter by eliminating any initial omissions or obscurities (see, for example, Foti and Others, cited above, § 44, and K.-H.W. v. Germany [GC], no. 37201/97, § 107, ECHR 2001‑II (extracts)). Likewise, the Court may clarify those facts ex officio.

(β)  The Court’s powers in examining an application and limits thereto

123.  As the above analysis shows (see paragraphs 106-122), the scope of a case before the Court remains circumscribed by the facts as presented by the applicant. If the Court were to base its decision on facts not covered by the complaint, it would rule beyond the scope of the case and exceed its jurisdiction by deciding matters which were not “referred to” it, within the meaning of Article 32 (see paragraph 106 above).In such situations the question of respect for the principle of equality of arms might also arise.

124.  Conversely, the Court would not be deciding outside the scope of a case if it were, by applying the jura novit curia principle, to recharacterise in law the facts being complained of by basing its decision on an Article or provision of the Convention not relied on by the applicants.

125.  It goes without saying that the Court cannot, by resorting to the jura novit curia principle, adopt a judgment which would go beyond (ultra petita) or outside (extra petita) what has been referred to it.

(γ)  Conclusion

126.  Against the background of all the considerations outlined above, it can be concluded that the scope of a case “referred to” the Court in the exercise of the right of individual application is determined by the applicant’s complaint. A complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle 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 Articles or provisions of the Convention that are different from those relied upon by the applicant. It cannot, however, base its decision on facts that are not covered by the complaint. To do so would be tantamount to deciding beyond the scope of a case; in other words, to deciding on matters that have not been “referred to” it, within the meaning of Article 32 of the Convention.

127.  It is with these considerations in mind that the Court will examine the specific circumstances of the present case.

(ii)  Application of the above considerations to the present case

128.  The Court notes that the applicants’ initial complaints before the Court, as formulated in their application forms, were rather open-ended. In particular, they argued that even though they and/or their predecessors had possessed the land in question for more than seventy years in the application of Radomilja and Others and for more than one hundred years in that of Jakeljić and had thereby ipso jure acquired its ownership by adverse possession, the domestic courts had refused to acknowledge the ownership so acquired.

129.  However, as noted above (see paragraph 122), because the applicants may subsequently elucidate or elaborate upon their initial submissions, the Court must take into account not only the application form but the entirety of their submissions in the course of the proceedings before it which may eliminate any initial omissions or obscurities.

130.  In the present case, having regard to certain statements the applicants made in their observations before the Chamber, the Court finds it established that they did not include the period between 6 April 1941 and 8 October 1991 in the factual and legal basis of their complaints (see paragraphs 32-33 above). This they confirmed subsequently in their reply to the Government’s observations before the Chamber where they expressly excluded that period from the factual and legal basis of their complaints (see paragraph 41 above).

131.  The Chamber decided to examine the applicants’ complaints – and in particular the issue whether they had had a possession protected under Article 1 of Protocol No. 1 – in the light of the Court’s Trgo judgment. The Chamber’s reliance on the Trgo jurisprudence as the relevant case-law resulted in the finding that the applicants’ claims to become owners of the land in question had had a sufficient basis in national law, namely, in the 1996 version of section 388(4) of the 1996 Property Act (see Radomilja and Others, cited above, § 53, and Jakeljić, cited above, § 46). That finding necessarily entailed taking into account the period between 6 April 1941 and 8 October 1991 which, as noted in the preceding paragraph, the applicants had excluded from the factual basis of their complaints.

132.  By doing so, the Chamber in effect based its judgment on facts that were substantially different from those that had been relied on by the applicants (see paragraph 121 above). The Grand Chamber considers that the later addition of a period of more than fifty years to the factual basis of the complaint which, it should be reiterated, was made in reliance of adverse possession – a legal concept and method of acquiring ownership whereby the temporal element is of central importance – must be seen as changing the substance of that complaint (see paragraph 123 above).

133.  Thus the Grand Chamber considers that the above judgment was decided beyond the scope of the case as delimited by the applicants’ complaints under Article 1 of Protocol No. 1 to the Convention and in particular by the facts alleged therein.

134.  In their observations before the Grand Chamber, the applicants argued that it had never been their intention to exclude from the factual basis of their complaints the said period between 6 April 1941 and 8 October 1991 (see paragraphs 91-93 above). As already stated above (see paragraph 130), the Grand Chamber considers that their submissions before the Chamber evidently suggest otherwise (see paragraphs 41-42 above).

135.  As noted above (see paragraph 132), adding the period of more than fifty years to the factual basis of their complaints must, in the given circumstances, be seen as changing the substance of those complaints. Thus it amounts, in effect, to raising before the Grand Chamber new and distinct complaints. While nothing prevents an applicant from raising a new complaint in the course of the proceedings before the Court, such a complaint must, like any other, comply with the admissibility requirements.

136.  Against this background, the Grand Chamber finds it appropriate in the concrete circumstances of the present case to review the admissibility of the applicants’ new complaints, relating to the period between 6 April 1941 and 8 October 1991 (see paragraph 102 above).

(b)  Admissibility

137.  The domestic proceedings in the applicants’ cases ended on 30 September 2009 and 4 October 2011 (see paragraphs 21 and 30 above), respectively. However, as explained above (see paragraph 134-135) the applicants decided to extend their complaints to the period between 6 April 1941 and 8 October 1991. These new and extended complaints were made, as late as in their observations before the Grand Chamber of 13 February 2017, that is, more than six months later.

138.  The Court reiterates in this connection that, even though no plea of inadmissibility concerning compliance with the six-month rule was made by the Government in their observations, it is not open to it to set aside the application of the six-month rule solely because a government have not made a preliminary objection to that effect (see, for example, Sabri Güneş, cited above, §§ 28-31; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 71, 10 January 2012; and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000‑I). This is so because the six-month rule, in reflecting the wish of the Contracting Parties to prevent past decisions from being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself (see Walker, cited above). The rule marks out the temporal limits of supervision carried out by the organs of the Convention, and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Sabri Güneş, cited above, §§ 39-40, and Walker, cited above).

139.  It follows that the applicants’ complaints under Article 1 of Protocol No. 1, in so far as they now include the period between 6 April 1941 and 8 October 1991, are inadmissible under Article 35 § 1 of the Convention for non-compliance with the six-month rule and must therefore be rejected pursuant to Article 35 § 4 thereof.

140.  In the light of this conclusion, the Court does not find it necessary to rule on the Government’s objection as to the failure to exhaust domestic remedies (see paragraphs 71 and 81-87 above).

141.  On the other hand, to the extent that the applicants’ complaints do not include that period, they are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Furthermore, these complaints are not inadmissible on any other grounds. They must therefore be declared admissible.

2.  The remainder of the applicants’ complaints

142.  The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX). “Possessions” can be “existing possessions” or claims that are sufficiently established to be regarded as “assets” (ibid.). Where a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it), that is, when the claim is sufficiently established as to be enforceable (see Kopecký, cited above, §§ 49 and 52, and Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 59, Series A no. 301‑B).

143.  The Court has also referred to claims in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see, inter alia, Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002‑VII, and Kopecký, cited above, § 35). However, a legitimate expectation has no independent existence; it must be attached to a proprietary interest for which there is a sufficient legal basis in national law (see Kopecký, §§ 45-53).

144.  Therefore, the issue to be examined is whether, excluding the period between 6 April 1941 and 8 October 1991, on which the applicants sought to belatedly rely before the Grand Chamber, their claims to be declared the owners of the land in question (nevertheless) had a sufficient basis in national law to be regarded as “assets” and therefore “possessions” protected by Article 1 of Protocol No. 1 (see Kopecký, cited above, § 52).

145.  In the proceedings before the Chamber (see paragraph 36 above) the applicants argued that their claims had a sufficient basis in national law (see Radomilja and Others, cited above, § 45, and Jakeljić, cited above, § 39).

146.  In addition, the applicants, in both applications, challenged certain factual findings of the domestic courts (see paragraphs 38-39 above).

147.  They reiterated these arguments in their observations before the Grand Chamber (see paragraph 97 above).

148.  The Government contended that the applicants’ arguments concerned questions of fact and the application of domestic law, which under the Convention were not the Court’s task to examine (see paragraphs 45 and 88 above).

149.  As regards the applicants’ arguments that the domestic courts in their case misapplied the relevant domestic law (see paragraph 145 above), the Court reiterates that its power to review compliance with domestic law is limited. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even in those fields where the Convention “incorporates” the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Zagrebačka banka d.d.v. Croatia, no. 39544/05, § 263, 12 December 2013). This is particularly true when, as in this instance, the case turns upon difficult questions of interpretation of domestic law (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-I). Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention (ibid., §§ 83 and 86). It is for that reason that the Court has held that, in principle, it cannot be said that an applicant has a sufficiently established claim amounting to an “asset” for the purposes of Article 1 of Protocol No. 1, where there is a dispute as to the correct interpretation and application of domestic law and where the question whether or not he or she complied with the statutory requirements is to be determined in judicial proceedings (see, for example, Kopecký, cited above, §§ 50 and 58, and Milašinović v. Croatia (dec.), no. 26659/08, 1 July 2010).

150.  As to the applicants’ remaining arguments concerning questions of fact (see paragraph 146 above), the Court reiterates that it is sensitive to the subsidiary nature of its role, and that it must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see, for example, Gäfgen, cited above, § 93, and Trapeznikova v. Russia, no. 21539/02, § 106, 11 December 2008). For the Court, in the present case, there are no elements that would lead it to contradict the factual findings of the domestic courts.

151.  The Court therefore concludes that the applicants’ claims (see paragraph 141 above) to be declared the owners of the land in question did not have a sufficient basis in the national law to qualify as “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. The guarantees of that provision therefore do not apply to the present case (see Kopecký, cited above, § 60).

152.  Accordingly, there has been no violation of Article 1 of Protocol No. 1 to the Convention.

FOR THESE REASONS, THE COURT

1.  Decides unanimously to join the applications;

2.  Declares, by a majority, the complaints concerning peaceful enjoyment of possessions inadmissible in so far as they encompass the period between 6 April 1941 and 8 October 1991;

3.  Holds, by fourteen votes to three,that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

Done in English and in French, and notified in writing on 20 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Prebensen                                                                  Guido Raimondi
Deputy to the Registrar                                                              President

_______________

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  Joint partly dissenting and partly concurring opinion of JudgesYudkivska, Vehabović and Kūris;

(b)  Joint dissenting opinion of JudgesDe Gaetano, Laffranque and Turković.

G.R.
S.C.P.

JOINT PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGES YUDKIVSKA, VEHABOVIĆ AND KŪRIS

I

1.  We start with the dissenting views. We voted against point 2 of the operative part of the judgment. In this regard, we subscribe to most of the arguments expounded in the dissenting opinion of Judges De Gaetano, Laffranque and Turković. We, too, find the majority’s approach as to the declaration of inadmissibility of the applicants’ complaints, in so far as they encompass the period between 6 April 1941 and 8 October 1991, to be overly formalistic.

2.  Moreover, we cannot but underline that the majority’s reasoning, based on that approach and leading to the said finding of inadmissibility, is very artificial. It is rooted in some imbalance that appeared in the assessment of the applicants’ arguments vis-à-vis the Government’s submissions. With regard to the former the majority have been extraordinarily critical; they have interpreted each and every doubt to the disadvantage of the applicants, and where the doubt was not notable, they have made it salient. In contrast to that, the majority have come to the aid of the Government where the latter have omitted certain arguments which, in the opinion of the majority, could have supported their case. The result of this imbalance is that it is not only the Government who have won their case and not only the applicants who have lost theirs. The Chamber has been reprimanded, even if not explicitly, for what, in the opinion of the majority, amounted to excessive activism. The exclusion, in the instant judgment, of the period between 6 April 1941 and 8 October 1991 from the scope of consideration effectively means that the Chamber had decided the two cases (which now comprise one case) ultra et extra petita and had thus acted ultra vires. This is quite a harsh assessment by the Grand Chamber of the Chamber’s methodology in examining the two cases (and, by extension, of that employed by the Grand Chamber’s minority). But the question of the proper reasoning in this (now joined) case is not only about the reading of facts as presented by the parties or of the law as relied upon by them. No less is it a matter of logic, and in the domain of logic there is no majority or minority. However, if one would prefer to resort to the majority–minority perspective, the ratio of votes in favour of the admissibility of the complaints, in so far as they encompass the 1941-1991 period, speaks for the Chamber: six votes to one (as one can infer from the separate opinions of Judge Lemmens in Radomilja and Others v. Croatia (no. 37685, 28 June 2016) and Jakeljić v. Croatia (no. 22768/12, 28 June 2016)), versus six to eleven in the Grand Chamber (as one can infer from the two separate opinions of six judges annexed to the present judgment).

3.  Leaving aside the question (which would merit a separate analytical consideration) of whether the Court’s oft-cited self-assumption of its role as “master of the characterisation to be given in law to the facts of the case” and of not being “bound by the characterisation given by an applicant [or] a government” is the application of the jura novit curia principle, which nevertheless cannot run counter to the tenets of non ultra petita and non extra petita (see paragraphs 114 and 125 of the judgment), it is striking that the majority, so overly scrupulous when confronted with the applicants’ arguments in deploying all efforts not to overstep the limits which they have interpreted as being set by the tenets of ultra or extra petita, have shown no hesitation whatsoever in going beyond similar limits when confronted with the arguments of the Government. True, some substantiation for that can be drawn from the Court’s case-law. The judgment, namely its sub-section “The scope of the case”, is well furnished with useful citations. On the other hand, comfortable citations can always be found and employed to support one methodology over another, thus, even if inadvertently, pouring water on the mill of the extreme realist doctrine whereby judges first decide the cases and only then search for proper substantiation. The choice of supporting citations must not, however, depend on whether the Court is inclined to keep strictly to the parties’ arguments (including the explicit mentioning or non-mentioning of certain facts) or to go beyond and outside them (which may mean dealing solely with the Government’s objections or finding proprio motu other grounds on which to dismiss the applicants’ claims). We do not doubt that the Court is indeed “master of the characterisation to be given in law to the facts of the case” and that it is not “bound by the characterisation given by an applicant [or] a government”. What raises concerns (in particular, but not only, in the instant case) is that this may be seen as a carte blanche. It should not be. In order to attain legitimacy, the Court’s “mastering” must be consistent in choosing a narrower or broader, a stricter or more lenient approach. In order to come to a correct and just outcome, judges should look at the facts of the case (as well as the applicable law) through a magnifying glass – but it should not be so that each of their eyes uses its own magnifying glass, only for one to be pink and the other grimy.

This brings us back to the issue of imbalance in the assessment of the parties’ submissions.

4.  To wit, the majority have dismissed all the applicants’ arguments that they never had the slightest intention of excluding from the factual basis of their complaints the period between 6 April 1941 and 8 October 1991, and this notwithstanding the fact that the majority themselves have characterised the applicants’ “initial” complaints before the Court as “rather open-ended”, particularly in the respect that the applicants did refer to the possession of the land in question for more than seventy years and one hundred years respectively (see paragraph 128 of the judgment), thus unequivocally encompassing the period in question. How then could it be that, as the majority hold, a line of reasoning which took into consideration, directly or indirectly, the period so artificially excluded would amount to “changing the substance of [the applicants’] complaints” (see paragraph 135, emphasis added)? We fail to see this “change”. Just like a good physician would always carefully and attentively inquire of a patient about the latter’s medical history and would never confine himself or herself to the examination of only the most recent complaints (as if they had nothing to do with the anamnesis), no court would be able to reasonably examine any case of alleged adverse possession without taking into consideration the whole period during which the property was said to have been possessed by the claimant. This is what the Croatian courts did when deciding the applicants’ cases. This is what the Strasbourg Court should have done. The exclusion of the period between 6 April 1941 and 8 October 1991, that is to say, the most relevant fact which had to be considered in order to understand what subsequently happened – both in fact and in law – on the ground that it was ostensibly not covered by the applicants’ complaints, amounts to the setting, by the Court itself, of a new factual basis for the case. The factual (as well as the legal) situation, as it was, has not changed, however. It has only been misrepresented in the instant judgment.

5.  On the other hand, and contrary to the apparently unfriendly treatment of the applicants’ submissions, the majority have supported the Government’s argument that the complaints communicated and decided by the Chamber were “not the same” as those brought by the applicants before the Court and that these complaints “did not correspond” to the claims brought by the applicants before the domestic courts, because the Chamber had taken into account the period between 6 April 1941 and 8 October 1991 and – in addition, but this issue is dealt with in the judgment only incidentally (see paragraph 131) – had relied on the 1996 version of section 388(4) of the 1996 Property Act, as well as on Trgo v. Croatia (no. 35298/04, § 17, 11 June 2009). On this basis, the Government objected that the applicants had failed to exhaust domestic remedies. The majority decided that it was not necessary to rule on this objection. Indeed, had the Grand Chamber endeavoured to rule on this issue, it would have been, to put it mildly, close to impossible to accept this objection by the Government, because the domestic courts, while examining the applicants’ claims, had certainly dealt, from one angle or another, with the ill-fated period between 6 April 1941 and 8 October 1991, just as they had dealt with the 1996 version of section 388(4) of the 1996 Property Act.

6.  But the domestic courts had indeed not dealt with the Trgo case (cited above) – for the obvious reason that there was no Trgo case at the material time. The Government’s reproach that the Chamber relied on the Trgo judgment simply does not hold water. In the same vein one could reproach the Grand Chamber for relying in the instant judgment on, say, OAO Neftyanaya Kompaniya Yukos v. Russia (no. 14902/04, § 520, 20 September 2011), or on Blokhin v. Russia ([GC], no. 47152/06, § 91, ECHR 2016), or on Harkins v. the United Kingdom ((dec.) [GC], no. 71537/14, § 41, ECHR 2017), or on any of the numerous very recent judgments and decisions cited extensively in paragraph 115 and elsewhere in the judgment. Citing newer case-law is what the Court does perhaps in each and every case. Such a reproach, as addressed to the Chamber by the Government, did not merit being taken with all seriousness.

7.  Still, the majority were apparently ready to meet the Government’s concerns as to the “dubious” period between 6 April 1941 and 8 October 1991. Therefore the majority themselves have formulated the new objection for the Government and on their behalf – the six-month rule. Judges De Gaetano, Laffranque and Turković have convincingly shown in their dissenting opinion that the Government have not even thought of objecting to applicants’ claims on this basis in other similar cases (including one still pending before the Court). Consequently, the Government believed here that the six-month rule had been observed. By employing the six-month rule, the majority thus pulled the rabbit out of the hat. That must have come as a pleasant surprise for the Government! Indeed, not only had the Government been unaware that there was a rabbit to be pulled, they had not even equipped themselves with the hat. And now (also in the context of that pending case), they could say “why bother, if the Grand Chamber has rabbits in ample supply?” – and hats too!

II

8.  We turn now to the concurring views. It is somewhat amazing that the reasoning, built on the shaky ground of the exclusion, from the scope of examination, of the most relevant fact, has nevertheless led to the finding of no violation of Article 1 of Protocol No. 1 to the Convention. We concur with this finding.

9.  To start with, as the period between 6 April 1941 and 8 October 1991 has been excluded from the scope of consideration by the Grand Chamber, not much could be said on the assessment of this period, not even by the dissenters. The examination simply has not taken place; or, rather, the examination of the period in question has been superseded by the persistent and purposeful view that such examination is not necessary in the instant case and that even if undertaken, it would distort the “initial” complaints as lodged by the applicants. The dissenters have not therefore had the opportunity for a comprehensive look into this matter.

10.  On the other hand, such examination was undertaken by the Chamber. We are, however, far from satisfied with its laconic reasoning, as well as with the fact that the Chamber judgment so heavily relied on the similarities between the two cases it decided, i.e. the Chamber judgments in Radomilja and Others v. Croatia and Jakeljić v. Croatia (both cited above), and the Trgo case (cited above), or with the conclusion that this was, in essence, sufficient for finding a violation of Article 1 of Protocol No. 1. But what was of great importance in Trgo was that there was “no indication that anyone, apart from the State itself, [had] acquired any rights over that land during socialism, or that any (third) person …, except the applicant himself …, [had] ever claimed any rights in respect of that land”, and therefore “in the applicant’s case there were no rights of third persons involved” (ibid., § 66). This also appears to have been one of the decisive arguments for finding a violation of Article 1 of Protocol No. 1 in the two cases decided by the Chamber along the lines drawn in Trgo. It seems, at least on the surface, that this would have allowed for the same finding as in Trgo to be reached in the present case.

11.  However, there are two aspects which make us cautious as to the reasoning and finding in Trgo (cited above), as well as to their import for the instant case. The aspects are interrelated in the sense that the first is a basis (or, rather, an excuse) for the second. We shall deal with each one in turn.

12.  Firstly, in deciding on the admissibility of the application in Trgo (cited above), the Court held that the applicant had become the owner of the land at issue ex lege, that is to say, by virtue of the operation of section 388(4) of the 1996 Property Act alone, and moreover, on the very day when that Act entered into force. The latter presumption seems to be a misunderstanding, if not from the point of view of the Croatian law, then from the point of view of the most fundamental principles of legal order. That is not how title to property (especially land) is normally acquired. It is very difficult to comprehend how one can be considered to be legally the “final” owner of a concrete (i.e. having, inter alia, clearly delimited boundaries) plot of land which is nominally still under the ownership of another person and with respect to which, in terms of the recognition of adverse possession, no act of any public authority (executive, municipal, judicial, etc.) had been adopted; especially in view of the fact that, until such an act is adopted, the exclusiveness and continuity of possession of the land in question, as well as the good faith of its acquisition by adverse possession, may still be contested by whoever that person might be (even if it ultimately transpires that there is no sufficient factual and/or legal basis for such contestation, and therefore unsuccessfully). If the possibility of such contestation is excluded ex lege, then the rule of law is an empty phrase. In our opinion, in Trgo and the two subsequent cases which have now been reconsidered by the Grand Chamber, the Court confounded the possession of land as an already legally established and therefore undisputed (or no longer disputed) fact of ownership, on the one hand, with the possession of land, or any “asset”, for the purposes of Article 1 of Protocol No. 1, on the other. For the admissibility of the applicant’s complaint in Trgo, the latter would have sufficed. The same goes for the instant case: the applicants’ title could not merely derive from the statute in question.

13.  Secondly, we cannot agree with the Chamber that section 388(4) of the Property Act was applicable to the applicants’ situation. At the time when the applicants brought their civil actions before the domestic authorities, that provision was no longer the valid law and therefore was not applicable, owing to the decision of 17 November 1999 by the Constitutional Court. Although that decision was formally an ex nunc decision (see paragraph 15 of the judgment), it defended the rights of third parties (including those who were entitled to the restitution of nationalised property). This was the principle underlying the Constitutional Court’s decision, but then the Court re-read and re-interpreted the domestic law, without paying heed to whether the third parties should have had any right to present their claims in respect of the property, the ownership by adverse possession of which had not yet been established in any due legal procedure (see paragraph 11 above). Even conceding (which would be a hard thing to do because of the reasons stated in the preceding paragraph) that the Trgo judgment (cited above) suggests that that applicant’s claim had a sufficient basis in domestic law to qualify as an “asset”, because he instituted relevant proceedings as soon as the Property Act in its original version entered into force in 1997 and thus had some expectations which at the material time might have been seen, at least from some perspective, as legitimate, and which he retained over the next three years until the Constitutional Court declared section 388(4) of that Act unconstitutional, and that all this triggered the applicability of Article 1 of Protocol No. 1 in Trgo, the legal situation in the instant case is different in at least one crucial respect. In the instant case, the applicants had not instituted any proceedings regarding the adverse possession of the land in question while section 388(4) of the 1996 Property Act was still in force. Once it was declared unconstitutional by the Constitutional Court (in our opinion, very reasonably), the applicants had no legitimate expectation whatsoever in respect of the land in question. But it was exactly then (and with a not insignificant delay) that they presented their claims to the domestic authorities, already in the absence of any legal basis in domestic law for legitimation of their expectations. Expectations they might have had (and we have no doubt that they did have them) – but expectations and legitimate expectations are not necessarily two matching realities. Very often they do not match, just like in the instant case.

14.  We would conclude by saying that the two aspects discussed in paragraphs 12 and 13 above merited most thorough consideration by the Grand Chamber. In the instant judgment, however, they are not dealt with at all. We can only regret this, because the finding of no violation of Article 1 of Protocol No. 1 is the one which we agree with: there indeed has been no violation of that Article. But, more generally, in the judge-made law, that is to say, jurisprudential law based on rational deliberation, it is not only the end result in a particular case that matters, but also the manner in which one arrives at that result. De jurisprudentiae ferenda, the reasoning may matter even more than the end result itself. An accidental correct finding is a dubious achievement.

JOINT DISSENTING OPINION OF JUDGES DE GAETANO, LAFFRANQUE AND TURKOVIĆ

1.  We are unable to subscribe to the majority’s conclusion that the complaints concerning peaceful enjoyment of possessions are inadmissible in so far as they encompass the period between 6 April 1941 and 8 October 1991 and that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

2.  In essence, the Government argued that the Chamber had acted extra/ultra petita, basing its judgments on facts and legal arguments which had not been part of the applicants’ complaints before the Court, and they thus invited the Court to strike the applications out of its list of cases. The Government emphasised that the Chamber had (a) taken into account the period between 6 April 1941 and 8 October 1991 even though the applicants had expressly excluded the said period from the factual basis of their complaint, and had relied on (b) the 1996 version of section 388(4) of the 1996 Property Act as well as (c) the Trgo judgment (seeTrgo v. Croatia, no. 35298/04, 11 June 2009), even though the applicants had objected to such reliance. Furthermore, the Government argued that the very same facts and legal arguments had not been part of the applicants’ complaints before the domestic courts either, and they invited the Court alternatively to declare the applications inadmissible for failure to exhaust domestic remedies.

3.  We will first address the issue of the applicability of the extra/ultra petita rule, then the objection of non-exhaustion, and finally we will provide some clarification in support of the Chamber’s judgments on the merits.

1.  Whether the Chamber had acted extra/ultra petita

4.  The majority concentrated on the Government’s argument that the applicants’ complaints did not include the period between 6 April 1941 and 8 October 1991. For the majority, that period was relevant for determining the scope of the case. On the basis of certain statements that could be found in the applicants’ respective replies to the Government’s Observations before the Chamber, the majority concluded that the applicants had intended to exclude the said periodfrom their complaints (see paragraphs 130 and 134 of the judgment). On this basis the majority further concluded that by taking into consideration the said period the Chamber had acted beyond the scope of the case as delimited by the applicants (see paragraph 133 of the judgment). In other words, the majority held, although they have not said so expressly, that the Chamber had transgressed the non extra/ultra petita rule and had thus acted ultra vires.

5.  In their submissions to the Grand Chamber, the applicants argued and attempted to clarify that in fact it had not been their intention to exclude the said period from the Chamber’s review (see paragraph 134 of the judgment). Evidently the majority did not trust those clarifications, but did not dismiss them either. The majority treated the applicants’ clarifications as a request to include that period in the scope of the case before the Grand Chamber. For the majority, this was a new and separate complaint that was submitted by the applicants for the first time before the Grand Chamber and thus the majority declared it inadmissible as being barred by the six-month rule (see paragraph 139 of the judgment).

6.  We respectfully disagree with all of the above findings for four principal reasons. First, lacking sufficient criteria for determining the scope of the case, the majority failed to make a thorough analysis of the applicants’ submissions to ascertain and establish the true scope of the Radomilja and Jakeljić cases. Second, the majority did not establish with the requisite degree of certainty that it was indeed the intention of the applicants to exclude the said period from the scope of the case. Third, the said period and its effects on the calculation of the time-limits necessary for acquiring ownership through adverse possession is not the fact constitutive of the complaint (i.e. of the interference), but has only evidential value and thus is irrelevant for determining the scope of the case. Fourth, in the circumstances of the present case, it was unjustified and overly formalistic to exclude the said period from the consideration of the merits in the Grand Chamber.

1.1.  The majority failed to establish the scope of the case, albeit a prerequisite for the application of the extra/ultra petita rule

7.  The extra/ultra/infra petita rule applies only to the submissions of the applicants to the extent that these submissions determine the scope of the case. Thus, for the application of the extra/ultra petita rule it is quintessential to define how the Court determines that scope. The majority established that the scope of the case “referred to” the Court is determined by the applicant’s “claim” or complaint (see paragraph 109 of the judgment)[3].According to the majority, a “claim” or complaint in Convention terms comprises two elements, namely factual allegations and the legal arguments (see paragraphs 110, 115 and 126 of the judgment). This definition of the components of the complaint is, for the purposes of determining the scope of the case, both overly broad and vague. This is in part recognised by the majority themselves when they concede that “while it is not possible to state in the abstract the importance of legal arguments, a complaint is always characterised by the alleged facts” (see paragraph 115 of the judgment).

8.  The definition is overly broad because it encompasses components which are irrelevant for determining the scope of the case. The definition is vague because it does not provide any criteria for distinguishing relevant facts and legal arguments from those that are irrelevant for the purposes of determining that scope. For example, although “a complaint is always characterised by the alleged facts” (see paragraphs 115 and 126 of the judgment) this does not mean that all the facts alleged in the complaint are relevant for determining the scope of the case. It is a common understanding in national and international courts that, for instance, facts which serve as evidence or background information do not constitute petitum. Furthermore, as the majority themselves have noted, not all legal arguments are equally relevant for characterising the complaint. In this respect the distinction between legal grounds[4] and legal arguments is essential. According to Article 34 of the Convention only legal grounds and not the supporting legal arguments characterise the complaint[5]. Thus, by confounding the terms legal grounds and legal arguments the majority have created a certain confusion[6].

9.  Accordingly, the majority failed to provide sufficient criteria for the Court to ascertain the true petitum of the applicants, i.e. the scope of the case, and have thus left too much discretion to the Court when the application of the ne extra/ultra/infra petita rule is called for. As a result, in their reasoning the majority have jumped to their conclusion without making a thorough analysis of the applicants’ submissions.

10.  The majority simply concluded that the temporal element was of central importance for the adverse possession, such that the exclusion or addition of a period of more than fifty years must be seen as changing the substance of the complaint (see paragraph 132 of the judgment). However, the majority came to that conclusion without ever determining the scope of the case. It seems that the majority merely assumed – wrongly, as we will demonstrate below – without providing any reasoning, that the period between 1941 and 1991 was the fact determinative of the scope of the case.

1.2.  Intention to amend the complaint

11.  The majority, in a very formalistic way, found it established that it had been applicants’ intention to exclude the 1941-1991 period from the factual and legal basis of their respective complaints before the Chamber, merely stating that this was evident from their submissions (see paragraphs 130 and 134 of the judgment)[7]. For our part, unlike the majority, we do not find that the applicants’ alleged intentions were evident. Furthermore, we find it unacceptable that the majority dismissed the applicants’ arguments and clarifications without any plausible explanation and in total disregard of their autonomy, ignoring the Court’s well-established case-law under Article 37 § 1 (a) of the Convention related to the withdrawal of an application or part thereof.

1.2.1.  An intention to exclude the 1941-1991 period was not evident from the applicants’ impugned statements

12.  In their initial complaints (see paragraphs 32 and 33 of the judgment) and in their replies to the Government’s observations (see paragraph 42 of the judgment), the applicants maintained consistently that they had been in continuous, exclusive possession of the land in question and in good faith for a long period of time including from 1941 to 1991. Simultaneously with the two impugned sentences in their replies to the Government’s Observations, they emphasised that “[t]hey [had] possessed [the land] in that way before 6 April 1941, between 6 April 1941 and 8 October 1991 and after 8 October 1991 until the present day”. They stressed that “[t]hey [had] therefore maintained uninterrupted possession on which grounds they should have, on the basis of the relevant legislation, acquired ownership by adverse possession”. No intention of excluding the said period could be discerned from these sentences and still less any intention of amending the original complaint. Quite the contrary.

13.  Furthermore, the applicants explained that in their mind they were just making legal arguments about (i) the relevancy of the said period for appraising the existence of their legitimate expectations, and (ii) the applicability of the Trgo judgment to their respective cases (see paragraphs 91-93 of the judgment). In addition, the Government, in their comments on the applicants’ observations, themselves saw the impugned statements by the applicants as arguments related to legitimate expectations and not as statements that would amend their original complaint (see paragraph 43 of the judgment). In part because it was not clear from the applicants’ submissions before the Chamber whether their intention was to withdraw their request in relation to the period from 1941 to 1991 and to waive the application of the Trgo precedent, the Grand Chamber explicitly asked the applicants and the Government to address these issues in their submissions before it.

14.  For all these reasons, and unlike the majority, we are unable to find that it was evident from the applicants’ submissions that from the very beginning they did not intend their complaints to cover the period from 1941 to 1991, or that they intended to amend their original claim[8] by excluding the said period from the factual and legal basis of their complaints (see paragraph 134 of the judgment). At most we could say that the applicants’ submissions before the Chamber were somewhat confused and that it is difficult to derive from them, with the requisite degree of certainty, the applicants’ real intentions regarding the exclusion of the said period from the scope of the case. Thus, solely on the basis of the impugned statements it is not possible to establish unequivocally the applicants’ real intentions in this regard.

1.2.2.  The applicants’ arguments were dismissed in total disregard of their autonomy

15.  The Convention, as the majority noted, relies on the disposition principle[9] (see paragraph 108 of the judgment). According to that principle the scope of the case before the Court is delimited by the applicants. They are free to dispose of their claims – advancing, withholding or withdrawing them as they see fit – and may thereby control the course of the litigation. By preventing the Court from deciding on what it has not been asked (extra petita), or from granting more than it has been asked (ultra petita), or from failing to rule on the request (infra petita), the extra/ultra/infra petita rule reinforces the principle of free disposition. In general terms, both the disposition principle and its corollary the extra/ultra/infra petita rule are considered to be an expression of individual autonomy. Consequently, the question whether and to what extent an individual asserts his or her rights before the Court ultimately depends on that individual’s intention[10]. Whenever applicants implicitly express their intentions regarding the scope of the case, the Court should establish those intentions in an unequivocal manner to be able to act upon them, otherwise the Court risks setting itself up instead of the applicants as dominus lites, contrary to the disposition principle embedded in the Convention system[11].

16.  To prevent courts from disregarding an applicant’s intention, many legal systems have very strict requirements as regards precision and content as well as formalities that have to be fulfilled in order to amend the initial complaint – whether to narrow, expand or change it.[12] In the Convention system this role is to a certain extent fulfilled by the case-law developed on the basis of Article 37 § 1 (a) of the Convention[13]. The Government indeed, in their written submissions before the Grand Chamber, referred to that Article (see paragraph 71 of the judgment). When an applicant explicitly or implicitly expresses an intention to exclude certain facts or legal grounds from the scope of the case, this is tantamount to the withdrawal or waiver of his or her application, or part of it, and thus in such situations the criteria the Court has developed under Article 37 § 1 (a) of the Convention should apply. For our purposes, two criteria under that Article are of particular importance: first, the requirement that the intention to withdraw a complaint or part of it must be established unequivocally (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 30, ECHR 2006‑XIV; Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 57, ECHR 2000‑VII; and David Saakyan v. Russia, (dec.), no 78386/4, § 20, 15 September 2015); second, the criterion that a waiver will not be considered unequivocal if the applicant gives a clear indication that he or she intends to pursue his or her application (seePisano v. Italy(striking out) [GC], no. 36732/97, § 41, 21 October 2002; see also,inter alia,Ohlen v. Denmark(striking out), no. 63214/00, § 25, 24 February 2005, and Association SOS Attentats and de Boery, cited above, § 31).

17.  The majority should have treated the applicants’ statements as a waiver of part of their initial complaint and should consequently have acted in accordance with the case-law developed under Article 37 § 1 (a). That is to say, from the judgment it transpires that, according to the majority, the period from 1941 to 1991 is a fact that determined the scope of the two original cases (see paragraph 135 of the judgment). Furthermore, the majority themselves have acknowledged that the applicants’ initial complaints before the Court, as formulated in their application forms, were rather open-ended and referred to the whole period over which they had possessed the land in question (see paragraph 128 of the judgment). Thus, if the period from 1941 to 1991 is regarded as determining the scope of the two cases, it is not possible to take the position, as the majority did, that the applicants’ impugned statements related to that period were mere clarifications of their alleged initial intentions and that the respective complaints from the very beginning had thus not covered the period from 1941 to 1991. Any explanation provided by the applicants that might actually narrow or expand the scope of the case as defined in the application form would be such as to withdraw, expand or change the initial complaint and thus could not be treated as mere clarification of that complaint. Therefore, by “clarifying” that they never really wanted this period to be part of their initial complaint (according to the majority’s interpretation) the applicants would have actually (if the said period is taken as being determinative of the scope of the case, as the majority found) implicitly expressed their intention to waive the part of the application related to that period. Thus, as emphasised above in paragraph 12, the majority should have established unequivocally,in accordance with the case-law developed under Article 37 § 1 (a), the applicants’ intention to withdraw all or part of a complaint. If the applicants, subsequent to an alleged waiver, gave a clear indication that they intended to pursue their original application, such a waiver should not be considered unequivocal.

18.  In their submissions before the Grand Chamber the applicants gave a clear indication that they intended to pursue their original complaint, as it was defined in their application form. They invited the Grand Chamber to uphold the Chamber judgments (see paragraph 97 of the judgment). They argued that it had not been their intention to exclude from the factual basis of their original complaints the said period (see paragraph 92 of the judgment). They also explained that they were just making legal arguments to support the point that “they entertained legitimate expectations, even if the Trgo jurisprudence was inapplicable to their situations” (see paragraph 93 of the judgment). For all these reasons, their impugned statements could not be treated as an unequivocal waiver. Furthermore, the Government in their submissions to the Grand Chamber did not allege that their fair hearing rights had been violated in any way due to the fact that the Chamber had potentially acted beyond or outside the scope of the case. In such circumstances the majority should have proceeded to discuss the two cases on the merits.

19.  The summary dismissal of the applicants’ arguments on the basis that the opposite is allegedly evident from the two statements in their submissions, together with the complete disregard of the applicants’ explanations and clarifications as to their true wishes, in particular when they had not been given an opportunity before the Chamber to clarify their impugned statements and intentions, is at variance with the disposition principle and the essence of the ne extra/ultra petita rule. The primary purpose of these two closely interrelated principles is to reinforce the applicants’ autonomy and dominus litus position before the Court. The majority completely lost sight of the relevance of these principles.

1.3.  Facts constituting the scope of the case – principal v. surrounding facts

20.  Furthermore, we are of the opinion that the specific period between 6 April 1941 and 8 October 1991 is not the type of fact that has a bearing on determining the scope of the Radomilja and Jakeljić cases before the Court. The majority simply failed to recognise that, although a complaint is always characterised by the alleged facts (see paragraphs 115 and 126 of the judgment), not all of the facts alleged in the complaint are relevant for determining the scope of the case and thereby the jurisdiction rationae materiae. This jurisdictional aspect of the extra/ultra petita rule was completely overlooked or disregarded by the majority[14].

21.  There is no direct case-law defining or identifying the facts that are relevant for establishing jurisdiction rationae materiae. However, there is well-developed case-law on establishing jurisdiction ratione temporis. In determining jurisdiction ratione temporis the Court has differentiated between the principal facts and other facts adduced by the applicant(s), and has considered only principal facts to be constitutive of interference (see Blečić v. Croatia, [GC] no. 59532/00, § 76, 8 March 2006, and Zana v. Turkey, 25 November 1997, § 42,Reports of Judgments and Decisions1997-VII). We do not see any reason for the Court to proceed differently in determining jurisdiction rationae materiae[15]. Indeed, in Eckle v. Germany (15 July 1982, § 66, Series A no. 51), for example, the Court defined as constitutive of a claim the facts representing the interference, i.e. the factual allegations to the effect that the claimant is the “victim of an act or omission” (see paragraph 110 of the judgment). In other words, acts or omissions of which the applicant is a victim constitute the interference.

22.  Consequently, for the purposes of determining jurisdiction rationae materiae, among all the facts alleged by the applicant(s) one should differentiate between principal facts, which are constitutive of interference, and surrounding facts and circumstances, which are related to the principal fact(s) and may shed light on an issue but do not constitute a separate interference under the Convention in the concrete case before the Court[16]. The latter type of facts, although submitted in the complaint, are not relevant for determining the scope of the case. They merely have evidential value as regards the existence of interference and the questions of legitimate aim, lawfulness and proportionality – the issues that the Court is called upon to address when a violation of Article 1 of Protocol No. 1 is alleged in relation to the principal facts. Thus, the Court can take subsidiary facts into consideration, proprio motu, without thereby triggering the application of the extra/ultra petita rule[17].

23.  In the present case, the applicants alleged in their respective original applications, subsequently supplemented by their respective Replies to the Government’s Observations, that the domestic courts, by refusing to acknowledge the ownership that they had ipso jure acquired by adverse possession, had breached their rights under Article 1 of Protocol No. 1 to the Convention (see paragraphs 31-34, 36-41 of the judgment). These domestic judgments delimit the scope of the Radomilja and Jakeljić cases (compare Eckle, cited above). According to the extra/ultra petita rule the Court could not act beyond or outside these judgments. The Court’s task is to review them and their compliance with the requirements of Article 1 of Protocol No. 1 concerning acknowledgment of ownership acquired ipso jure by adverse possession. In so doing, the Court has to satisfy itself that the national authorities based their decisions on an acceptable assessment of the relevant facts (see, for example, Zdanoka v. Latvia, § 96; Vogt, cited above, § 52;Socialist Party and Others v. Turkey, 25 May 1998, § 44,Reports 1998-III; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 39, ECHR 1999-VIII).

24.  The relevant surrounding facts include, for example, the various facts contained in two Split County Court judgments and in other decisions of domestic authorities which the applicants submitted to the Court, or facts that were submitted by the Government or have been established by the Court proprio motu. All these facts shed light on the principal facts and assist the Court in arriving at its decision (compare Saygili and Falakaogluv. Turkey (no. 2), no. 388991/02, § 25, 17 February 2009). They are not constitutive of a separate complaint. Thus, for example, legal acts mentioned in the two Split County Court judgments or in other documents submitted by the applicants to the Court, including the 1996 version of section 388 (4) of the 1996 Property Act, are merely subsidiary facts which the Court could view in a different manner from the applicants (see paragraph 121 of the judgment citing Foti and Others, cited above, § 44). Similarly, the different segments of time – 1912 to 1941, 1941 to 1991 and 1991 to date – are shorthand for the different legal regimes that were in force over the whole period in which the applicants and/or their predecessors possessed the land in question, continuously, exclusively and in good faith.

25.  As we have said, the Court is empowered to examine these facts, if it deems it necessary and if need be of its own motion, and could proprio motu base legal arguments on these facts (see the previous paragraph). Thus, while the applicants could freely dispose when it came to the principal facts, they do not and should not have the same powers over subsidiary facts and circumstances. They were not entitled to direct the Court as to which subsidiary facts it could take into account and which it could not. Applicants cannot withdraw such facts from the case on the basis of the principle of free disposition and the related principle of extra/ultra petita. Put simply, the reach of the principle of free disposition and its corollary the non ultra petita principle is not and should not be unlimited[18]. Judge Fitzmaurice famously stated that “unless certain distinctions are drawn, there is a danger that [the non ultra petita rule] might hamper the tribunal in coming to a correct decision, and might even cause it to arrive at a legally incorrect one, by compelling it to neglect juridically relevant factors”[19]. The danger of failing to make a distinction between these two types of facts for the purposes of establishing jurisdiction ratione materiae was certainly evident in the present case, whose end results border on absurdity – an absurdity to which the applicants contributed in part with their imprudent statements.

26.  Thus, even though the applicants said that they were not asking the Court to take the period between 1941 to 1991 into account and that they had no expectation that the Court would do so, it was erroneous to conclude that the Chamber had acted extra/ultra petita by taking that period into account in its reasoning. This period was but one fact – albeit an important one – among many other relevant surrounding facts and circumstances that the Court had to take into account in assessing whether the decisions of the domestic authorities were in compliance with Article 1 Protocol No. 1 to the Convention.

1.4.  The decision by the majority to exclude the 1941-1991 period from the scope of the case was unduly formalistic and therefore unjustified

27.  We are fully aware that the concept of ne extra/ultra petitaleans more towards the concept of procedural justice than the concept of substantive justice. However, courts are bound to apply the rules of procedure avoiding both excessive formalism that would impair the fairness of the proceedings and excessive flexibility such as would render nugatory the procedural requirements laid down in statutes (see Bulena v. the CzechRepublic, no. 57567/00, § 30, 20 April 2004, and Eşim v. Turkey, no. 59601/09, § 21, 17 September 2013). In trying to find the balance between the two, the Court has often stressed that “the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court” (see Kart v. Turkey [GC], no. 8917/05, § 79 in fine, ECHR 2009 (extracts), and Eşim, cited above, § 21; see also Zapdkav. Poland, no. 2619/05, § 61, 15 December 2009). The existence of formalism unjustifiably restricting an applicant’s access to a court will depend on the assessment of the case as a whole (see Bulena, cited above, § 69). The Court has also stressed that the relevant procedural rules cannot be construed in a manner which does not take into account the particular circumstances of the case (see Stagno v. Belgium, no. 1062/07, §§ 33-35, 7 July 2009; see also Fatma Nur Erten and Adnan Erten v. Turkey, no. 14674/11, §§ 29-32, 25 November 2014).

28.  In the present case, no injustice to the applicants had been caused by the Chamber judgments; on the contrary, those judgments were to their benefit. Moreover, the due process rights of the Government had not been undermined in any way. Both parties were treated with full respect for their equality and for their right to be heard and to present their own arguments and their views on the arguments of their opponent[20]. The Government did not even complain in that connection (compare Scoppola (no. 2) v. Italy [GC], no. 10249/03, § 56, 17 September 2009)[21]. We could not see any good reason to strike down the Chamber’s judgments for violating the extra/ultra petita rule in such circumstances[22], especially as the scope of the case was never precisely determined, there is no incontrovertibly clear evidence that the Chamber exceeded its powers, the applicants actually denied that their intention was to narrow the complaint (see paragraphs 17-18 above) and they have adopted the Chamber’s arguments as their own by asking the Grand Chamber to confirm the Chamber’s judgments (see paragraph 97 of the judgment). For all these reasons, we consider the approach by the majority to the application of the extra/ultra petita rule in the circumstances of the present case to be unduly formalistic and therefore unjustified (compare Delcourt v. Belgium, no. 2689/65, §§ 39-40, 17 January 1970).

1.5.  Application of the Trgo judgment – jura novit curia

29.  The application of the Trgo judgment is covered by the jura novit curia principle (the law is a matter for the court) and we believe that this does not require any further explanation. It is widely accepted that the courts in general – and this Court in particular – are free to base their decisions on any legal grounds and legal arguments. The Court is not bound by the legal arguments of the parties and especially not by the application and interpretation of its own cases(see paragraphs 124 and 126 of the judgment). This is well established in the international arena. For example, the International Court of Justice has sometimes had recourse to arguments that are quite different from those proposed in order to resolve the case. An example of this is furnished by the North Sea Continental Shelf cases (Judgment of 20 February 1969, ICJ Reports 1969), where the ICJ shaped a doctrine on the legal handling of continental shelf delimitations which went largely beyond what the parties had in effect pleaded.

1.6.  Conclusion

30.  For any and all of the above reasons the Grand Chamber should have dismissed the Government’s argument that the Chamber had acted extra/ultra petita by basing its judgments on facts and legal arguments which had not been part of the applicants’ complaints before the Court. Therefore, there are no grounds for the application of the six-month rule to any of these facts or legal arguments.

2.  Exhaustion of domestic remedies

31.  Finding the complaints inadmissible on the basis of the six-month rule (see paragraph 139 of the judgment), the majority did not find it necessary to address the Government’s objection as to the failure to exhaust domestic remedies (see paragraph 140 of the judgment). However, to be able to proceed to the merits, the minority now has to address the exhaustion objection.

32.  The Government, for the first time before the Grand Chamber, raised the issue of non-exhaustion of domestic remedies owing to the fact that the Chamber judgments had been based on facts and legal arguments which had not been part of the applicants’ case before the domestic courts. However, there had been nothing to prevent the Government from raising a non-exhaustion objection in due time.

33.  Notice of both cases (Radomilja and Jakeljić) had been given with reference to the Trgo case. Both the Government and the applicants were then given the opportunity to develop their arguments in that connection and they all availed themselves of that opportunity (see footnote 19 above). In their observations, they concentrated their arguments on the effects of the Trgo judgment for legitimate expectations (see paragraphs 35-42 of the judgment). The Government did not raise a non-exhaustion argument although they were aware of the Chamber’s intention to examine the issues raised in the light of Trgo. In the Government’s comments on the applicants’ observations they reiterated their arguments related to legitimate expectations. The Government emphasised that in their reply to the Government’s observations the applicants had admitted that section 388(4) of the 1996 Property Act had no significance in their cases and had expressly argued that the cases had a factual and legal background that was different from that of the Trgo case. Again, the Government failed to raise a non-exhaustion argument (see paragraphs 43-45 of the judgment).

34.  Around the same time, notices of three cases related to a similar issue were given to the Government: Radomilja, Majcan (Majcan v. Croatia, no. 45366/14, communication, 8 September 2014) and the Jakeljić case. In all three cases the Government basically copied and pasted its response, except for the argument related to the exhaustion of domestic remedies, which we find in Majcan, but not in the Radomilja and Jakeljić cases. Chronologically, the Government first dealt with the Radomilja case, then the Majcan case and then the Jakeljić case. Thus, the omission of the exhaustion objection in the Radomilja and Jakeljić cases could not be seen as accidental.

35.  We find the above points sufficient to conclude that there is estoppel in both the Radomilja and the Jakeljić cases (see Foti and Others, cited above, §§ 47-49).

36.  However, we would like, in addition, to emphasise that the domestic courts, including the Constitutional Court, dealt with the period between 1941 and 1991, and with the issue of the applicability of section 388(4) of the 1996 Property Act to the said period, in the light of the fact that that provision was invalidated by the Constitutional Court’s decision. They examined the issue either on the motion of the respondent authority or proprio motu (see paragraphs 18, 19, 21, 24, 26, 27, 28, 30). For the exhaustion of domestic remedies, it is important that domestic authorities “have had an opportunity to put matters right through their own legal system” (see De Wilde, Ooms and Versyp, cited above, § 50). In this respect, it is irrelevant how domestic authorities have seized that opportunity, whether on the basis of the complaint by the applicant, on the motion of the respondent authority, or proprio motu (compare Gäfgen v. Germany, [GC] no. 22978/10, § 143, 1 June 2010).

3.  Merits

37.  As regards the merits of the case, we also dissent in taking the view that there has been a violation of Article 1 of Protocol No. 1 to the Convention for the reasons advanced in the Chamber judgments, which followed the precedent set in theTrgojudgment (seeTrgo v. Croatia, cited above). We wish, however, to provide some further clarification as to whether the applicants’ claims to be declared the owners of the land in question – when taking into account the impugned period of 50 years – amounted to “possessions” and thus enjoyed the guarantees of Article 1 of Protocol No. 1 to the Convention.

38.  In reaching the delicate balance between the requirements of legal certainty and the requirement that legislation must be in line with the Constitution, the Croatian constitutional system gives precedence to the principle of legal certainty. Therefore, under the Croatian Constitutional Court Act, primary legislation (statutes) can only be invalidated as unconstitutional by the Constitutional Court withex nunc, that is, withpro futuroeffects, meaning that the legal effects they produced before being invalidated will remain. Secondary (subordinate) legislation can be invalidated withex tunceffects under certain, rather restrictive, circumstances, in which case the effects they produced before being invalidated are erased.

39.  This was recently confirmed by the Constitutional Court in a case involving the refusal of an insurance company to pay the State a contribution related to protection from hail. The legislation imposing that contribution had been invalidated by the Constitutional Court as unconstitutional. The State, after the Constitutional Court adopted the decision invalidating the legislation in question, brought a civil action against the insurance company seeking payment of the contribution. The courts ruled for the State, finding that the insurance company had to pay the contributions due in respect of the period before the invalidation of the legislation at issue, because the Constitutional Court decision invalidating the legislation did not have retroactive,ex tunc, effects. This decision by the civil courts was upheld by the Constitutional Court following a constitutional complaint by the insurance company (see decision no. U-III-971/2016 of 15 September 2016).

40.  Such constitutional systems, which give precedence to legal certainty, exist in a number of Contracting States. This was acknowledged by the Court itself in the case ofMarckx v. Belgium(13 June 1979, § 58, Series A no. 31): “… in certain Contracting States having a constitutional court: their public law limits the retroactive effect of those decisions of that court that annul legislation”.

41.  One exception to this rule in the Croatian constitutional system is the right of the individuals or legal entities who have sought constitutional review proceedings, which have resulted in the legislation being invalidated, to request the reopening of proceedings in which the invalidated legislation or its provision had been applied.

42.  The other exception is the rule that the courts are no longer allowed to apply the invalidated legislation in pending proceedings, specifically in those where the judgment has not yet become final. This rule, properly understood, applies only to constitutive claims which could result in constitutive judgments, as such judgments would create legal effects on the basis of unconstitutional legislation after that legislation has been invalidated. The rule cannot apply to declaratory claims resulting in declaratory judgments acknowledging the effects that the unconstitutional legislation had already produced before being invalidated. This is precisely the situation in the present case.

43.  The applicants’ claims in the present case to be declared the owners of the land in question thus had a sufficient basis in the national law, namely in the invalidated section 388(4) of the 1996 Property Act, taken in conjunction with the relevant provisions of the Constitutional Court Act stipulating that Constitutional Court decisions invalidating legislation had onlyex nunceffects. In view of the above, it is immaterial when the applicants brought their civil actions: while that provision was still in force or subsequently. The findings of the Chamber in this respect in its two judgments in the applicants’ cases are thus entirely correct. The Chamber was right to conclude that the applicants’ claims amounted to “possessions” and thus attracted the guarantees of Article 1 of Protocol No. 1 to the Convention.

APPENDIX

The applicants in application no. 37685/10

1.      Mladen RADOMILJA born on 29/06/1948

2.      Ivan BRČIĆ born on 12/08/1959

3.      Vesna RADOMILJA born on 09/02/1963

4.      Nenad RADOMILJA born on 02/10/1986

5.      Marin RADOMILJA born on 30/09/1990

The applicants in application no. 22768/12

1.      Jakov JAKELJIĆ born on 13/10/1960

2.      Ivica JAKELJIĆ born on 20/04/1970

______________

[1] Social ownership was a type of ownership which did not exist in other socialist countries but was developed in the former Yugoslavia. According to the official doctrine, property in social ownership had no owner, the role of public authorities in respect of such property being confined to management. For more details on the concept of social ownership in the former Yugoslavia see Trgo v. Croatia, no. 35298/04, § 6, 11 June 2009.

[2] Free of vice means that the property must not have been at any time taken by force, by fraud (stealth, secretly) or by gratuitous revocable loan by the person claiming to have acquired ownership by adverse possession or by a previous possessor (Nec vi, nec clam, nec precario).
[3]This is the first time the Court has explicitly fused the notion of complaint and claim as being one and the same (see paragraphs 109 and 110 of the judgment),even though Article 34 talks only about claim and not complaint (person “claiming” not complaining).
[4]In a broader sense, of course, legal grounds could be understood as a form of legal argument. However, since the distinction between the two is important for determining the scope of the case it is inappropriate to merge these terms in defining the elements of the complaint. The same is true for the purposes of determining exhaustion. In the context of exhaustion of remedies the Court’s case-law refers to “Convention arguments” not legal arguments in general (see, for example, Azinas v. Cyprus, no. 56679/00, § 38, 28 April 2004).
[5]Article 34 of the Convention speaks only of the legal grounds – “a violation by [a] Contracting Party of the rights set forth in the Convention or the Protocols thereto” – and not of the supporting legal arguments.
[6]The majority (in paragraph 110 of the judgment) suggest that Article 34 of the Convention indicates that a claim consists of factual allegations and legal arguments. However, when they provide a definition of legal arguments in brackets it is actually a definition of the underlying legal grounds (“violation by [a] Contracting Party of the rights set forth in the Convention or the Protocols thereto”) which is de factothe terminology used by Article 34 of the Convention. Furthermore, although Guerra (Guerra v. Italy, no. 14967/89, 19 February 1998) and the whole case-law following Guerra, in defining a complaint, distinguish between facts, legal grounds and legal arguments (see paragraph 113 of the judgment) the majority skip the legal grounds as a separate element and define a complaint as consisting of two elements: factual allegations and legal arguments (see paragraph 126 of the judgment); or most probably not skipping legal grounds altogether, but rather fusing the notion of legal grounds into that of legal arguments.
[7] Paragraph 130 of the judgment is very confusing. The majority refer twice in this paragraph to the same observations of theapplicants, namely their replies to the Government’s observations (paragraphs 36 to 42 of the judgment), giving the impression that the applicants repeatedly, in different submissions to the Court, had intentionally excluded the period between 6 April 1941 and 8 October 1991 from the factual and legal basis of their complaints before the Chamber.
[8]The majority themselves have acknowledged that the applicants’ initial complaints before the Court, referred to the whole period over which the applicants had possessed the land in question (see paragraph 128 of the judgment).
[9] Also called the “principle of party disposition” or the “principle of free disposition”.
[10]See, in that regard, the Opinion of Advocate General Ruiz-Jarabo Colomer in the European Court of Justice (ECJ) case of Vedial v OHIM(C‑106/03 P, EU:C:2004:457, Opinion § 28). See also the ECJ judgment of 14 December 1995 in van Schijndel and van Veen(C‑430/93 and C‑431/93, EU:C:1995:441, §§ 20 and 21).
[11]For example, in theStojaković case (Stojaković v. Croatia(dec.), no. 6504/13, 1 January 2016) the applicants’representative explicitly stated that their complaint was not about the criminal investigation but about the civil proceedings. Since it was unequivocally established by the Chamber that the applicants had not intended to complain about alleged facts of ineffective investigation under Article 2, the application was struck out of its list in accordance with Article 37 § 1 (a) of the Convention, the main reason being that the Court could not ruleextra petita. In theFoti case (Foti v. Italy, no. 7604/76, 7719/76, 7781/78, 10 December 1982), where the Government complained that “the Commission had … failed to confine itself to applying the maxim ‘da mihi facta, dabo tibi jus’, thereby exceeding its jurisdiction” (ibid., § 42), the Court felt it important to emphasise that “… the applicants declared that they were ‘adopting as their own’ the grounds that had prompted the Commission to raise the matter ex officio …” (ibid., § 44).
[12] Opinion of Advocate General Mengozzi, 30 May 2017, in the ECJ caseBritish Airways plc v European Commission (Case C-122/16 P, ECLI:EU:C:2017:406,Opinion § 124).
[13]According to Article 37§ 1 (a) the Court may at any stage of the proceedings decide to strike an application or part thereof out of its list of cases where the applicant does not intend to pursue all or part of his/her application.
[14]The extra/ultra petita rule has two aspects, jurisdictional and procedural. By putting a limit on the jurisdictional competence rationae materiae of the Court it reinforces the disposition principle. By regulating, together with thejura novit curia principle, questions such as “who does what” or “what is the matter for the judge, what is the matter for the parties”, it imposes procedural boundaries on the disposition principle. Consequently, theultra/extra petita rule reinforces the applicants’ autonomy and at the same time, together with thejura novit curia principle, imposes boundaries on it by regulating the division of work between the parties and the Court.
[15]In relation to jurisdiction ratione materiae the Court has always made mention of a case duly referred to it.
[16]Surrounding facts or circumstances are the facts or circumstances which are related to and may shed light on an issue, which closely precede or follow it, which surround and accompany it, which depend upon it, or which support or qualify it (definition fromBlacks Law Dictionary, at https://thelawdictionary.org/circumstances/, last visited 31 January 2018).
[17]It is well-established case-law of the Court that once a case is duly referred to it, the Court may take cognisance of every question of law arising in the course of the proceedings and concerning facts submitted to its examination either by an applicant, or a Contracting State, or facts establishedproprio motu. Master of the characterisation to be given in law to the facts, the Court is empowered to examine them, if it deems it necessary and if need be of its own motion, in the light of the Convention as a whole (see, inter alia, the judgment on the merits in the “Belgian linguistic case”, 23 July 1968, § 1, Series A no. 6; De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 49, Series A no. 12; Handyside v. the United Kingdom, 7 December 1976, § 41, Series A no. 24; andIreland v. the United Kingdom, 18 January 1978, § 157, Series A no. 25).
[18]In this respect, the procedural aspect of theextra/ultra petita rule is important as well. It determines the distribution of power over the facts between the parties and the Court. Seenote 12 above.
[19] See International Court of Justice (ICJ), Case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, 14 February 2002, § 12 (citing G. Fitzmaurice,The Law and Procedure of the International Court of Justice, 1986, vol. II, pp. 529-530).
[20]In the respective communications to the parties, the Chamber invited them to submit their observations taking into account theTrgo judgment. The Court is in no way precluded from raising a point of law which the parties have not relied upon. In so doing, a Chamber has not introduced a new legal ground, it has only given a hint as to the possible legal arguments. By referring to theTrgo judgment the Court indirectly invited the parties to address in particular the period of time between 1941 and 1991 and laws on adverse possession related to that period. Both the Government and the applicants had a reasonable opportunity to address all these issues and to present their cases. They all availed themselves of that possibility. In fact, in their submissions before the Grand Chamber, in relation to the merits, both the Government and the applicants just reiterated their arguments before the Chamber.
[21]In Scoppola (no. 2) (as cited) the Court found it sufficient that the Government had had an opportunity to comment on certain issues, even if only before the Grand Chamber.
[22]In this connection the practice of English courts in setting aside an arbitral award when an arbitral tribunal has rendered a decision extra/ultra petita may be instructive. Under section 68 of the 1996 English Arbitral Act, an arbitral award is open to challenge where the tribunal has exceeded its powers in situations involvinga procedural irregularity that has caused substantial injustice to the applicant. In international commercial arbitration, there is a trend towards such restrictive interpretation of the application of the extra/ultra petita rule. In AKN v. ALC, the Singapore Court of Appeal relatively recently clarified its approach to infra and ultra petita challenges to awards. In such a scenario, according to that court, the real issue will be whether the parties have had a reasonable opportunity to address or respond to a new point on the basis of jurisdiction and whether that point is so material that the denial of such opportunity caused prejudice.

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