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,

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,

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

B. Proceedings before the domestic courts

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

"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."

"In the statement of claim it is submitted ... that the plaintiffs and their predecessors had been in possession of the immovable property [in question] for more than 70 years and that they had thereby acquired ownership of that property by adverse possession.

...

The plaintiffs base their claim on ... adverse possession. [E]ven if they do not expressly state it, the facts alleged in their statement of claim suggest that they maintain that the requirements for acquiring ownership by adverse possession had been met before 6 April 1941. This means that it was necessary to establish whether the requirements prescribed by the ... laws and other regulations in force at the time were met.

...

In the opinion of this court, because of changed economic and social circumstances, the time-limits for acquiring title to property by adverse possession prescribed by ... laws and other regulations in force on 6 April 1941 do not correspond to the principle of protection of legitimate interests of individuals, long-term possessors in good faith, or to the principle of legal certainty. [The court] therefore considers that the period of 20 years is required and sufficient to acquire ownership of immovable property by adverse possession."

"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."

"... 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."

"Only those facts on the existence of which depends the assessment of a violation of a constitutional right are relevant for the Constitutional Court.

In the civil proceedings ... it was established that ... the complainants ... had been in continuous exclusive possession of the disputed property since at least 1912 and in good faith.

...

In the reasoning of its judgment the second-instance court notes that the case concerns immovable property which was socially owned on 8 October 1991 and that, in calculating the time-limit necessary for acquiring ownership by adverse possession of [such] property, the time which elapsed before that date cannot be taken into account.

In the examination of the constitutional complaint ... one has to take note of the fact that section 388(4) of the 1996 Property Act was invalidated by the Constitutional Court's decision of [17 November 1999] ... [I]n that decision the Constitutional Court held that possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time-limit for acquiring ownership by adverse possession. Given that the time-limit for acquiring ownership of property socially owned on 8 October 1991, did not run in the period between 6 April 1941 and 8 October 1991 (which view the Constitutional Court expressed in the decision 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)

"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."

"In the response to the action the respondent denied the claim because the property in question had been [in] social ownership and because, pursuant to the Constitutional Court's decision invalidating section 388(4) of the [1996 Property Act], possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time-limit for acquiring title to property by adverse possession.

...

Given that the action was brought in 2002, that in the land register the right of ownership is registered in the name of the Stobreč Municipality, that section 388(4) of the [1996 Property Act] was invalidated by the Constitutional Court's decision of 17 November 1999 - which means that the fact of possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time necessary for adverse possession - ... the plaintiffs and their predecessors could not have acquired ownership before 1991 unless they manage to prove that they had acquired [it] by adverse possession before 6 April 1941. The plaintiffs' action evidently relies precisely on that. Therefore, since [for the court] it is beyond dispute that the plot in question had been socially owned on 8 October 1991 ... in order to determine whether it had been acquired by adverse possession it had to be established whether the plaintiffs' legal predecessors had been in possession of certain quality of the disputed property before 6 April 1941 and thus for the period prescribed for adverse possession by the rules applicable at the time."

"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."

"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."

"Only those facts on the existence of which depends the assessment of a violation of a constitutional right are relevant for the Constitutional Court.

In the civil proceedings ... it was established that ... the complainants ... had been in continuous exclusive possession of the disputed property since at least 1912 and in good faith.

...

In the reasoning of its judgment the second-instance court notes that the case concerns immovable property which was socially owned on 8 October 1991 and that in calculating the time-limit necessary for acquiring ownership by adverse possession of [such] property the time which elapsed before that date cannot be taken into account.

In the examination of the constitutional complaint ... the Constitutional Court notes that section 388(4) of the 1996 Property Act was invalidated by the Constitutional Court's decision of [17 November 1999] ... [I]n that decision the Constitutional Court held that possessing socially owned property in the period before 8 October 1991 could not be taken into account in calculating the time-limit for acquiring ownership by adverse possession. Given that the time-limit for acquiring ownership of property socially owned on 8 October 1991 did not run in the period between 6 April 1941 and 8 October 1991 (which view the Constitutional Court expressed in decision 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

"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"

"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."

"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

"... 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

"... 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."

"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

"... 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."

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Constitutional Court Act

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

2. The 1980 Basic Property Act

3. The 1996 Property Act

"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."

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."

"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

"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."

"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

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

II. 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."

A. The Chamber judgments

"... 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)."

B. The parties' arguments before the Grand Chamber

1. The Government

"... 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."

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

2. The applicants

C. The Court's assessment

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

(a) The scope of the case

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

"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."

(α) The notion of complaint

"... 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."

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

(γ) Conclusion

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

(b) Admissibility

2. The remainder of the applicants' complaints

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 PrebensenGuido Raimondi
Deputy to the RegistrarPresident

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 Judges Yudkivska, Vehabović and Kūris;

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

G.R.
S.C.P.

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

I

II

JOINT DISSENTING OPINION OF JUDGES DE GAETANO, LAFFRANQUE AND TURKOVIĆ

1. Whether the Chamber had acted extra/ultra petita

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

1.2. Intention to amend the complaint

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

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

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

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

1.5. Application of the Trgo judgment - jura novit curia

1.6. Conclusion

2. Exhaustion of domestic remedies

3. Merits

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