CASE OF TRGO v. CROATIA
(Application no. 35298/04)
11 June 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Trgo v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 19 May 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Property dispute
1. Background to the case
(a) Social ownership and its transformation
(b) Acquisition of ownership of socially owned property by adverse possession
The Constitutional Court's decision in its relevant part reads as follows:
The provisions of section ... 388 paragraph 4 of the [1996 Property Act] are hereby abrogated.
The petitioners consider that the impugned provision tends to favour various users of property, who used it without any title, by enabling them to acquire ownership at the expense of [former] owners from whom it was taken during Communism ... They also point out that retroactive [application of the rules of] adverse possession should not be allowed.
The petition [for constitutional review] is well founded.
The impugned provision attributes a common quality to a certain state of facts even in respect of the period during which that quality was expressly excluded by law.
Namely, section 29 of the [1980 Basic Property Act] provided that ownership of socially owned property could not be acquired by adverse possession. That provision was repealed by section 3 of the Act on the Incorporation of the [1980 Basic Property Act] (...) , as a result of which all immovable property which had been in social ownership before the adoption of the [new 1990] Constitution, regardless of its status in the transitional period, came under the general regime also as regards [the acquisition of ownership by] adverse possession.
Since, in the court's view, repealing in the particular case amounts only to abrogation ex nunc [ukidanje] and not to annulment ex tunc [poništavanje], it has to be concluded that the period of possession of the socially owned property before 8 October 1991 (the day of entry into force of the Act on the Incorporation of the [1980 Basic Property Act]) cannot be taken into account for the purposes of acquiring ownership by adverse possession ...
Namely, the possessors of the property, in respect of which the acquisition of ownership by adverse possession was expressly excluded by law, were aware that this property was not susceptible to [acquisition of ownership by] adverse possession, which was also known to the holders of [various] rights over the same property (the right to administer, use and dispose of it), who therefore did not [have to] use relevant remedies against the risk of losing the property on account of its acquisition by its possessors through adverse possession. Therefore, in the application of the impugned provision it may happen that holders of certain property rights lose these rights, which the Constitution allows only exceptionally and with compensation.
What is more, the impugned provision makes possible the acquisition of ownership of certain property even before the time-limits for acquisition by adverse possession started to run, while [at the same time] the time-limits for acquisition by adverse possession of many types of former socially owned property are actually being extended (the property owned by the Republic of Croatia, counties and units of local self-government ...).
[For these reasons], the court finds that the impugned provision is not, in the substantive sense [substantive unconstitutionality], in conformity with the highest values [of the constitutional order] of equality, inviolability of property and the rule of law enshrined in Article 3 of the Constitution, and the guarantee of property enshrined in Article 48 paragraph 1 of the Constitution.
Furthermore, the court concludes that the impugned provision has retroactive effects, for which reason it is not in conformity with the provision of Article 90 paragraph 2 of the Constitution either.
..., [T]he court finds that while determining the retroactive effects of the said provision of section 388 paragraph 4 of the [1996 Property Act], the procedure prescribed by the Rules of Procedure of the Croatian Parliament was not observed.
For the court, when [in the legislative process] the legislator breaches its self-prescribed rules of procedure.... ...the legislative act adopted in such improper way, is not in accordance with ... the [principle of the] rule of law enshrined in Article 3 of the Constitution.
This further means that ... the impugned provision ... is not even in the formal sense [formal unconstitutionality] in compliance with Article 90 paragraph 2 of the Constitution.
2. Proceedings in the particular case
“After finding that the plaintiff's mother was a bona fide possessor of the immovable property in question, it needs to be established whether she possessed it during the statutory period necessary to acquire ownership by adverse possession.
Once section 29 of the 1991 Basic Property Act was repealed... it has become possible to acquire ownership by adverse possession of socially owned immovable property ... [Also], under section 388(4) of the 1996 Property Act, in calculating the period for the acquisition by adverse possession of immovable property which was socially owned on 8 October 1991, the period before that date has also to be taken into account.
Section 388(4) of the 1996 Property Act was abrogated by a decision of the Constitutional Court ... , which means that, in the period prior to its abrogation, that provision was in force, that is until late 1999...
In order to acquire ownership by adverse possession of State-owned immovable property, under section 159(4) of the 1996 Property Act, a period twice as long as that set out in paragraphs 2 and 3 of that section is required, which means that in respect of the land at issue a continuous undisturbed possession in good faith over a period of forty years is needed.
Having regard to the fact that ... the plaintiff was, through his mother, in continuous possession of the land in question since 1953, it has to be concluded that he acquired ownership by adverse possession ...”
“It is undisputed between the parties that:
- the immovable property at issue was confiscated from the plaintiff's legal predecessor... in 1949;
- the respondent was recorded [as owner] in the land register on the basis of the confiscation decision;
- the plaintiff and his legal predecessor have had continuous possession [thereof] since 1953...
The first-instance court erred in finding that the plaintiff had acquired ownership by adverse possession of the immovable property at issue because he and his legal predecessor had had continuous possession since 1953, on the basis of section 388(4) of the 1996 Property Act, which was subsequently abrogated by a decision of the Constitutional Court... In its decision the Constitutional Court held that the unconstitutionality of the abrogated provision existed already prior to it being abrogated, that is, since its entry into force, a conclusion that is also accepted by this court. Consequently, irrespective of the fact that section 388(4) was in force until the publication of the Constitutional Court's decision in the Official Gazette, the [first-instance court's] decision could not be based on an unconstitutional provision.”
“During the... proceedings ... the Constitutional Court has established that [the second-instance judgment] was reached in application of the relevant provisions of substantive law, and that the legal findings of the second-instance court were well reasoned, and that therefore there has been no infringement of the complainant's ownership rights...”
B. Reopening of criminal proceedings
C. The administrative proceedings for the restitution of confiscated property
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitutional Court Act
“(1) The Constitutional Court shall abrogate [ukinuti] a statute or its provisions if it finds that they are incompatible with the Constitution ...
(2) Unless the Constitutional Court decides otherwise, the abrogated [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].
“(1) The final sentence for a criminal offence based on a statutory provision that has been abrogated as contrary to the Constitution shall cease to produce legal effects from the day of the entry into force of the Constitutional Court's decision abrogating the statutory provision on the basis of which the sentence was delivered and may be set aside by [a petition for] reopening of criminal proceedings.
(2) Every natural or legal person who has lodged with the Constitutional Court a petition to review constitutionality of a statutory provision, or a constitutionality or legality of a provision of subordinate legislation, and whose petition has been accepted by the Constitutional Court and [that] provision abrogated [ex nunc], has a right to lodge with the competent authority [a petition for reopening of proceedings] and ask that the decision based on the abrogated ... provision ... be set aside.
(4) [The petition for reopening of the proceedings] referred to in paragraphs 2 and 3 of this section may be lodged within five months of the publication of the Constitutional Court's decision in the Official Gazette.
(5) In proceedings in which no final decision has been adopted before the date of the entry into force of the Constitutional Court's decision abrogating a statute, [...] or its provisions, and this statute [ ...] is directly applicable in the case, the abrogated statute [...] or its provisions shall not be applied from the date of the entry into force of the Constitutional Court's decision.”
B. The 1980 Basic Property Act
Section 3 of the Act on the Incorporation of the Act on Basic Ownership Relations (Zakon o preuzimanju zakona o osnovnim vlasničkopravnim odnosima, Official Gazette of the Republic of Croatia no. 53/1991 of 8 October 1991) repealed section 29 of the Basic Property Act.
C. The 1996 Property Act
RIGHT OF OWNERSHIP
ACQUISITION OF OWNERSHIP
Legal grounds for acquisition
“(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
“(1) Ownership may be acquired by adverse possession on the basis of the exclusive possession of a certain property... if such possession 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 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.”
TRANSITIONAL AND FINAL PROVISIONS
TRANSFORMATION OF SOCIAL OWNERSHIP
General provisions on transformation
(2) The right of ownership and other rights in rem acquired under the provisions of this Act on transformation of the rights to administer, use or dispose of socially owned property ... shall be considered acquired under the condition that they are not in collision with the rights of other persons over [such] property under the denationalisation legislation.
Transformation of the rights to administer, use and dispose of [the socially owned property]
“(1) The right to administer, use or dispose of socially owned property became by the transformation [privatisation] of its holder the right of ownership of that person who through the transformation became the former holder's universal legal successor ...
(2) The right to administer, use or dispose of socially owned property which before the entry into force of this Act was not transformed into a subject of the right of ownership, shall by this Act's entry into force become [its] right of ownership ...
(3) The provisions of paragraph 1 and 2 of this section shall be applied, mutatis mutandis, to other rights in rem.
(4) Registration of the right to administer, use or dispose of [socially owned property] in the land register ... shall be considered registration of the right of ownership.”
“(1) It is considered that the owner of a socially owned immovable property is a person registered in the land register as a holder of the right to administer, use or dispose of that immovable property.
Protection of the transformed rights
“(1) Person whose right of ownership is derived from the former right to administer, use or dispose of socially owned property ... shall have the right to protect it as any owner ...”
“(1) The acquisition, modification, legal effects or 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 rules applicable at the moment of the acquisition, modification or termination of those rights or of their legal effects.
(3) If the prescribed time-limits for the acquisition and termination of 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 the acquisition by adverse possession of immovable property which was socially owned on 8 October 1991, and for the acquisition of [other] rights in rem over such property, the period before that date shall also be taken into account.”
D. The 2001 Amendment to the 1996 Property Act
“In section 388, a new paragraph 4 shall be added after paragraph 3, to read:
'In calculating the period for the acquisition by adverse possession of immovable property which was socially owned on 8 October 1991, and for the acquisition of [other] rights in rem over such property, the period before that date shall not be taken into account.'”
E. The 1996 Denationalisation Act
F. The Civil Procedure Act
Reopening of proceedings following the final judgment of the European Court of Human Rights in Strasbourg finding a violation of a fundamental human right or freedom
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the finality of the judgment of the European Court of Human Rights, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
“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.”
1. Non-exhaustion of domestic remedies
2. Applicability of Article 1 of Protocol No. 1
46. The Court notes that under Croatian law ownership will, in principle, be acquired by adverse possession ipso jure when all statutory conditions are met. However, it also notes that the question whether or not the applicant satisfied the statutory conditions for acquiring ownership by adverse possession was to be determined in the proceedings before the competent courts, and that he needed a declaratory judgment acknowledging his ownership in order to effectively enjoy his property. The Court therefore considers that the proprietary interest relied on by the applicant was in the nature of a claim and cannot be characterised as an “existing possession” within the meaning of the Court's case-law.
1. The parties' submissions
2. The Court's assessment
(a) Whether there was an interference with the peaceful enjoyment of “'possessions”'
(b) Whether the interference was “provided for by law”
(c) Whether the interference was “in the public interest”
(d) Proportionality of the interference
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. The parties' submissions
2. The Court's assessment
(a) Pecuniary damage
(b) Non-pecuniary damage
B. Costs and expenses
FOR THESE REASONS, THE COURT UNANIMOUSLY
4. Dismisses the remainder of the applicant's claim for just satisfaction.