Last Updated on November 2, 2019 by LawEuro
Information Note on the Court’s case-law 216
March 2018
Radomilja and Others v. Croatia [GC] – 37685/10 and 22768/12
Judgment 20.3.2018 [GC]
Article 35
Article 35-1
Six-month period
Later addition by applicants of a period of more than 50 years to facts of complaint based on adverse possession: inadmissible
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Possessions
Claims to ownership of socially owned property through adverse possession: no violation
Facts – On 6 April 1941 the legislation of the former Yugoslavia prohibited the acquisition of ownership of socially owned property by adverse possession. That provision was repealed by the Croatian Parliament in 1991 and section 388(4) of the 1996 Property Act provided that the period from 6 April 1941 to 8 October 1991 was to be included in calculating the period for acquiring ownership by adverse possession of socially owned immovable property. However, in 1999 the Constitutional Court invalidated section 388(4) of the 1996 Property Act on the grounds that its retrospective effect and the adverse consequences it produced on the rights of third parties were unconstitutional.
The domestic courts refused to make a declaration that the applicants had, through adverse possession, acquired title to land registered in the name of local authorities. The 1996 Property Act had fixed the period for acquisition of ownership by adverse possession at 40 years for socially owned property. The running of the statutory 40-year period had been interrupted in April 1941 and had only started to run again after 8 October 1991. The applicants and their predecessors-in-title had only been in possession of the land (continuously and in good faith) since 1912, and therefore they fell short of the requisite period as of 6 April 1941.
Relying on Article 1 of Protocol No. 1, the applicants complained that, in dismissing their claims, the domestic courts had misapplied the relevant domestic law, as the statutory period for acquiring ownership by adverse possession had been 20, not 40, years. They pointed out that according to the interpretation of the Federal Supreme Court of Yugoslavia in April 1960, a bone fide possessor of immovable property was entitled to acquire it by adverse possession after 20 years.
In its judgments of 28 June 2016 (Radomilja and Others v. Croatia, 37685/10, and Jakeljić v. Croatia, 22768/12), a Chamber of the Court held by six votes to one in both cases that there had been a violation of Article 1 of Protocol No. 1. Following the approach adopted in Trgo v. Croatia (35298/04, 11 June 2009) the Chamber took account of the period from 6 April 1941 to 8 October 1991 and found that the applicants’ claim to ownership of the plots of land had a sufficient basis in national law (section 388(4) of the 1996 Property Act) to qualify as an “asset” protected by Article 1 of Protocol No. 1. On the merits, the Court found that – in the absence of any prejudice to the rights of others – it was not justified to exclude the 1941-1991 period from the calculation of the period for acquiring ownership by adverse possession of socially owned property.
On 28 November 2016 the cases were referred to the Grand Chamber at the Government’s request (see Information Note 201).
Law – As the two applications were based on similar facts and complaints and raised the same questions under the Convention, the Court decided to join them.
(a) Scope of the case – The scope of a case “referred to” the Court through the exercise of the right of individual petition was circumscribed by the applicant’s complaint, comprising factual allegations and legal arguments. By virtue of the jura novit curia principle the Court was not bound by the legal grounds adduced by the applicant and had 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 were different from those relied upon by the applicant. It could not, however, base its decision on facts that were 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 had not been “referred to” it, within the meaning of Article 32 of the Convention.
The applicants’ initial complaints before the Court, as formulated in their application forms, were rather open-ended. Subsequently, in their observations before the Chamber, they did not include the period between 6 April 1941 and 8 October 1991 in the factual and legal basis of their complaints. This they confirmed subsequently in their reply to the Government’s observations before the Chamber where they expressly excluded that period.
The Chamber had 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 v. Croatia judgment, resulting in the finding that the applicants’ claims to become owners of the land in question had a sufficient basis in national law, namely, in the 1996 version of section 388(4) of the 1996 Property Act. That finding necessarily entailed taking into account the period between 6 April 1941 and 8 October 1991. By doing so, the Chamber had based its judgment on facts that were substantially different from those that had been relied on by the applicants and had thus decided beyond the scope of the case as delimited by the applicants’ complaints under Article 1 of Protocol No. 1.
In their observations before the Grand Chamber, the applicants had 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, whereas their submissions before the Chamber evidently suggested otherwise.
The Grand Chamber took the view that the belated addition of the period of more than 50 years to the factual basis of their complaint about adverse possession, a means of property acquisition for which the time factor was crucial, had to be seen as changing the substance of that complaint. Thus it amounted, in effect, to raising before the Grand Chamber new and distinct complaints. While nothing prevented an applicant from raising a new complaint in the course of the proceedings before the Court, such a complaint had, like any other, to comply with the admissibility requirements.
(b) Admissibility – The domestic proceedings in the applicants’ cases ended on 30 September 2009 and 4 October 2011, respectively. The new and extended complaints (including the period from 6 April 1941 to 8 October 1991) were made as late as in their observations before the Grand Chamber of 13 February 2017, more than six months later.
Conclusion: inadmissible (out of time).
(c) Merits – Article 1 of Protocol No. 1: As regards the alleged misapplication by the domestic courts of the relevant domestic law in the case, the Court reiterated the principle that an applicant could not be regarded as enjoying a sufficiently established claim, constituting an “asset” for the purposes of Article 1 of Protocol No. 1, where there was 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 was to be determined in judicial proceedings.
As to the factual questions, there was no reason for the Court to contradict the findings of the domestic courts.
Accordingly, the applicants’ claims to be declared the owners of the land in question (excluding the period from 6 April 1941 to 8 October 1991) did not have a sufficient basis in the national law to qualify as “possessions” within the meaning of Article 1 of Protocol No. 1. The guarantees of that provision therefore did not apply to the present case.
Conclusion: no violation (fourteen votes to three).
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