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FIRST
SECTION
CASE OF
TRGO v. CROATIA
(Application
no. 35298/04)
JUDGMENT
STRASBOURG
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:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
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:
PROCEDURE
- The
case originated in an application (no. 35298/04) 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 a Croatian national, Mr Fabjan Trgo (“the
applicant”), on 11 October 2004.
- The
applicant was represented by Mr A. Nola, a lawyer practising in
Makarska. The Croatian Government (“the Government”) were
represented by their Agent, Mrs Š. StaZnik.
- The
applicant alleged, in particular, that his right to peaceful
enjoyment of his possessions had been violated because the domestic
courts had refused to acknowledge his ownership that he had acquired
by adverse possession.
- On
16 January 2007 the President of the First Section decided to
communicate the complaint concerning the right of property to the
Government. On 4 September 2008 the Chamber decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1924 and lives in Krilo Jesenice.
A. Property dispute
1. Background to the case
(a) Social ownership and its
transformation
- The
legal system of the former Socialist Federal Republic of Yugoslavia
(SFRY) distinguished between two types of ownership: private
ownership (privatno vlasništvo) and social ownership
(društveno vlasništvo). While owners of property
in private ownership were private individuals (natural persons) and
some private legal entities called “civil legal entities”
(građanske pravne osobe) such as foundations,
associations and religious communities, property in social ownership,
according to the official doctrine, had no owner. Nevertheless, the
federal State, the constituent Republics, municipalities being local
government units and other various legal entities called “social
legal entities” (društvene pravne osobe), among
which the most important ones were companies, known at the time as
“organisations of associated labour” (organizacije
udruZenog rada) and later on as “socially owned companies”
(društvena poduzeća), were during the socialist
period given certain quasi-ownership rights over property in social
ownership, such as the right to use it (pravo korištenja),
the right to administer it (pravo upravljanja) or the right to
dispose of it (pravo raspolaganja). Private individuals could
also acquire certain rights over property in social ownership.
Notably, many individuals living in socially owned flats had
specially protected tenancies (stanarsko pravo) in respect of
those flats.
- The
Constitution of the Republic of Croatia of 1990 (Ustav Republike
Hrvatske, Official Gazette, no. 56/1990 with subsequent
amendments) acknowledged only one type of ownership: private
ownership. Therefore, in order to bring the country's legal system in
conformity with its Constitution, in the period between 1991 and 1997
the Croatian Parliament adopted several legislative acts with a view
to transforming social ownership into private ownership.
- In
particular, the Specially Protected Tenancies (Sale to Occupier) Act
(Zakon o prodaji stanova na kojima postoji stanarsko pravo,
Official Gazette no. 27/1991 with subsequent amendments –
“the Sale to Occupier Act”), which entered into force on
19 June 1991, enabled the holders of specially protected
tenancies to purchase their flats which were in social ownership
under favourable conditions and thereby become their owners.
- The
Transformation of Socially Owned Companies Act (Zakon o pretvorbi
društvenih poduzeća, Official Gazette no. 19/1991
with subsequent amendments), which entered into force on 1 May 1991,
provided that all “socially owned companies” had to
transform into commercial companies, in particular into either
limited liability companies or joint stock companies.
- On
1 January 1997 both the Ownership and Other Rights In Rem Act
(Zakon o vlasništvu i drugim stvarnim pravima, Official
Gazette no. 91/1996 of 28 October 1996 – “the 1996
Property Act”), and the Act on Compensation for, and
Restitution of, Property Taken During the Yugoslav Communist Regime
(Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske
komunističke vladavine, Official Gazette nos. 92/1996, with
subsequent amendments – “the Denationalisation Act”),
entered into force. By entry into force of these two Acts the
transformation of social ownership into private ownership was largely
completed.
- The
1996 Property Act provided that by its entry into force the holders
of the rights to use, administer and dispose of socially owned
property (see paragraph 6 above) were to become the owners of that
property. As regards, in particular, commercial companies created
through transformation of socially owned companies pursuant to the
Transformation of Socially Owned Companies Act, the 1996 Property Act
provided that those companies were already from the moment of their
transformation to be considered the owners of socially owned property
in respect of which they previously held the rights to use,
administer and dispose of it (see section 360(1) of 1996 Property Act
in paragraph 28 below).
- The
Denationalisation Act provided that in respect of certain property
that had been through nationalisation or confiscation appropriated
from its former owners during socialism and transferred into social
ownership there was to be restitution in kind. It thereby enabled
some former owners or their heirs to obtain ownership of such
property which had until then been socially owned property.
(b) Acquisition of ownership of socially
owned property by adverse possession
- The
legislation of the former SFRY, in particular section 29 of the Basic
Property Act of 1980 (see paragraph 27 below), prohibited the
acquisition of ownership of socially owned property by adverse
possession (dosjelost).
- When
incorporating the 1980 Basic Property Act into the Croatian legal
system on 8 October 1991, Parliament repealed that provision (see
paragraph 27 below).
- Subsequently,
the new Property Act of 1996 provided in section 388(4) that the
period prior to 8 October 1991 was to be included in calculating the
period for acquisition of ownership by adverse possession of socially
owned immovable property (see paragraph 28 below).
- Following
several petitions for constitutional review (prijedlog za ocjenu
ustavnosti) submitted by the former owners of property that had
been appropriated during socialism, 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
(decision nos. U-I-58/1997, U-I-235/1997, U-I-237/1997,
U-I-1053/1997 and U-I-1054/1997 of 8 July 1999, Official Gazette no.
80/1999 of 30 July 1999).
- On
17 November 1999 the Constitutional Court abrogated section 388(4) of
the 1996 Property Act (decisions nos. U-I-58/1997, U-I-235/1997,
U-I-237/1997, U-I-1053/1997 and U-I-1054/1997 of 17 November 1999,
Official Gazette no. 137/99 of 4 December 1999). It held that
the impugned provision had retroactive effects with adverse
consequences for the rights of third persons and was therefore
unconstitutional.
The
Constitutional Court's decision in its relevant part reads as
follows:
DECISION
I.
The provisions of section ... 388 paragraph 4 of the
[1996 Property Act] are hereby abrogated.
II.
...
Reasons
I.
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
- In
1997 the applicant instituted civil proceedings before the Makarska
Municipal Court (Općinski sud u Makarskoj) against the
Municipality of Podgora (Općina Podgora) and the State
seeking a declaration of his ownership of certain plots of land and
their registration in his name in the land register. The applicant
claimed that the property at issue had been owned by his late uncle
and confiscated in 1949 by the socialist authorities. The applicant's
late mother had been in possession of the land since 1953, as the
applicant had continued to be after her death on 16 February 1992.
Given that the prescribed period for acquisition of ownership by
adverse possession had elapsed, the applicant claimed to have
acquired ownership of the land.
- On
16 February 2001 the Municipal Court ruled for the applicant and
ordered that he be recorded in the land register as the owner of the
property. The court held:
“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 ...”
- On
an appeal by both respondents, on 18 June 2004 the Split County Court
(Zupanijski sud u Splitu) reversed the first-instance judgment
and dismissed the applicant's claim on the following grounds:
“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.”
- The
applicant lodged a constitutional complaint against that judgment,
claiming, inter alia, an infringement of his property rights.
On 3 March 2005 the Constitutional Court dismissed the
applicant's complaint, finding that:
“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
- In
1994 the applicant requested the reopening of criminal proceedings
which had ended in 1945 and in which his uncle had been convicted.
- On
14 October 2003 the Split County Court declared the applicant's
request inadmissible, finding that he had not been entitled to make
such a request. On appeal, the Supreme Court (Vrhovni sud
Republike Hrvatske) upheld the first-instance decision on 18
February 2004.
- Subsequently,
on 30 June 2004 the Constitutional Court declared the applicant's
complaint inadmissible for lack of jurisdiction.
C. The administrative proceedings for the restitution
of confiscated property
- On
5 May 1997 the applicant applied to the competent administrative
authority seeking restitution of the above plots of land that had
been confiscated from his late uncle in 1949 by the socialist
authorities. In doing so he relied on the Denationalisation Act. It
appears that the proceedings were later on stayed and that they are
formally still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitutional Court Act
- The
1999 Constitutional Act on the Constitutional Court of the Republic
of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske,
Official Gazette no. 99/1999 of 29 September 1999, which entered into
force on 24 September 1999 – “the Constitutional Court
Act”), as amended by the 2002 Amendments (Ustavni zakon o
izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike
Hrvatske, Official Gazette no. 29/2002 of 22 March 2002, which
entered into force on 15 March 2002), in its relevant part reads as
follows:
Section 53
“(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].
(3) ...”
Section 56
“(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.
(3) ...
(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
29 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, which
entered into force on 1 September 1980 – “the 1980 Basic
Property Act”) prohibited the acquisition by adverse possession
of ownership of socially owned property.
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
- The
relevant part of the Ownership and Other Rights In Rem Act
(Zakon o vlasništvu i drugim stvarnim pravima, Official
Gazette no. 91/1996 of 28 October 1996, which entered into force
on 1 January 1997 – “the 1996 Property Act”),
as in force at the material time, 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 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.”
Part nine
TRANSITIONAL AND FINAL PROVISIONS
Chapter 1.
TRANSFORMATION OF SOCIAL OWNERSHIP
General provisions on transformation
Section 359
“(1) ...
(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]
Section 360
“(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.”
Presumptions
Section 362
“(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.
(2) ...”
Protection of the transformed rights
Section 363
“(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 ...”
...
Chapter 4.
FINAL PROVISIONS
Section 388
“(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
- The
relevant part of the 2001 Amendment to the 1996 Property Act
(Zakon o izmjeni i dopuni Zakona vlasništvu i drugim
stvarnim pravima, Official Gazette no. 114/2001 of 20
December 2001, which entered into force on the same day) that were
enacted following the abrogation of section 388(4) of the 1996
Property Act by the Constitutional Court on 17 November 1999,
reads as follows:
Section 2
“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
- The
Act on Compensation for, and Restitution of, Property Taken During
the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu
za vrijeme jugoslavenske komunističke vladavine, Official
Gazette nos. 92/1996, 92/1999 (corrigendum), 80/2002 and 81/2002
(corrigendum), which entered into force on 1 January 1997 –
“the 1996 Denationalisation Act”) enables the former
owners of confiscated or nationalised property, or their heirs in the
first line of succession (direct descendants and a spouse), to seek
under certain conditions either restitution of or compensation for
the appropriated property.
F. The Civil Procedure Act
- The
1977 Civil Procedure Act (Zakon o parničnom
postupku, Official Gazette of
the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977
(corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990,
27/1990 and 35/1991 and Official Gazette of the Republic of Croatia
nos. 53/1991, 91/1992, 112/1999, 117/2003 and 84/2008, which entered
into force on 1 July 1977 – “the Civil Procedure
Act”), as amended by the 2003 Amendments (Official Gazette no.
117/2003, which entered into force on 1 December 2003) in its
relevant part reads as follows:
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
Section 428a
“(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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant claimed to have ex lege acquired ownership of the
above-mentioned plots of land by adverse possession on the basis of
section 388(4) of the 1996 Property Act. He complained that the
refusal of the domestic courts to acknowledge his ownership in the
above civil proceedings – because that provision had been
abrogated by the Constitutional Court while those proceedings had
been pending – had violated his property rights. He explained
that under the domestic law the ownership was acquired by adverse
possession ipso jure, that is when the conditions were met,
and that he had met those conditions prior to the Constitutional
Court's decision, which decisions have only ex nunc effects.
He 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.”
- The
Government contested that argument.
A. Admissibility
- The
Government disputed the admissibility of this complaint on two
grounds. They argued that the applicant had failed to exhaust
domestic remedies and that Article 1 of Protocol No. 1 was not
applicable to the present case.
1. Non-exhaustion of domestic remedies
- The
Government noted that, apart from bringing a civil action with a view
to being declared the owner of the property at issue on the basis of
section 388(4) of the 1996 Property Act, the applicant had also
instituted administrative proceedings under the Denationalisation Act
seeking restitution of the same property, which had been confiscated
from his late uncle, and that these proceedings were still pending.
- That
being so, the Government deemed that in a situation where an
applicant attempts to use two remedies available at the domestic
level at the same time in order to assert his rights, the rule of
exhaustion of domestic remedies required that both remedies be used,
up to the highest level of jurisdiction. Since the administrative
proceedings for the restitution of property under the
Denationalisation Act were still pending, the Government argued that
the applicant's complaint was premature.
- They
added that the Denationalisation Act was legislation adopted
precisely for the purposes of resolving the issues relating to the
restitution of property appropriated during the socialist regime.
Thus, administrative proceedings instituted on the basis of that Act
were the primary remedy to be used by persons in situations
comparable to that of the applicant.
- The
applicant did not comment on this issue.
- For
the Court, it is sufficient to note that under the Denationalisation
Act the only persons entitled to restitution of, or compensation for,
property appropriated during the socialist regime are the former
owners themselves or their heirs in the first line of succession,
that is, a former owner's spouse and direct descendants. Since the
applicant is only a nephew of his late uncle he is not entitled to
restitution of the property in question. Accordingly, his application
for restitution before the administrative authorities, in the Court's
view, has no prospects of success.
- It
follows that the Government's objection concerning non-exhaustion of
domestic remedies must be dismissed.
2. Applicability of Article 1 of Protocol No. 1
- The
Government argued that the applicant had never had a “possession”
within the meaning of Article 1 of Protocol No. 1 to the Convention.
They considered it undisputed that he had never had “effective
enjoyment of a property right over the immovable property in
question.” In their view, the applicant had only a conditional
claim in respect of those plots of land, on the basis of which he
thought he could acquire, by adverse possession, the right of
ownership. However, under the domestic law, the applicant could not
have had a legitimate expectation of having his claim satisfied.
- The
Government admitted that at a specific moment in time, the legislator
had adopted the provision under which the applicant's conditional
claim would have been granted had that provision remained in force.
However, that provision had been abrogated by the Constitutional
Court as being unconstitutional. Accordingly, as early as the time of
passing of the first-instance judgment, let alone at the time when
the second-instance court reversed it, the applicant could not have
had a legitimate expectation that he would acquire ownership by
adverse possession, because it had been clear that he had not met the
necessary requirements and that the first-instance court could not
have based its judgment on that provision.
- The
applicant disagreed.
- 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. “Possessions” can be “existing
possessions” or claims that are sufficiently established to be
regarded as “assets”. 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,
ECHR 2002 VII, § 69, and Kopecký v.
Slovakia [GC], no. 44912/98, § 35, ECHR
2004 IX). However, a legitimate expectation has no independent
existence; it must be attached to a proprietary interest which must
itself be sufficiently established (see Kopecký, cited
above, §§ 45-53). In reality, the question for the
Court is therefore whether the applicant has a sufficiently
established claim to attract the protection of Article 1 of Protocol
No. 1.
- Turning
to the present case, the Court notes that
the applicant suggested that the ownership of the property at issue
vested in him without the intervention of the courts (see, by
converse implication, Kopecký, cited above, § 41)
whereas the Government argued that he had a
“claim” rather than an “existing possession”.
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.
- The
Court reiterates that 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 or, in
other words, when the claim is sufficiently established to be
enforceable (see paragraph 44 above, as well as Kopecký,
cited above, §§ 49 and 52; and Stran Greek Refineries
and Stratis Andreadis v. Greece, 9 December 1994, § 59,
Series A no. 301 B).
- It
would appear from the findings of the domestic courts (see paragraphs
19-20 above) that it was uncontested that the applicant and his
mother had been in exclusive and continuous possession in good faith
of the property in question since 1953, that is for more than forty
years, and that he had thus already in 1993 met the statutory
conditions for acquiring ownership by adverse possession. It may
therefore be inferred that the applicant, on the basis of section
388(4) of the 1996 Property Act, ex lege became the owner of
the land at issue on 1 January 1997 when the Act entered into
force. That provision remained in force until the Constitutional
Court abrogated it almost three years later. The Court thus considers
that the applicant's claim had a sufficient basis in national law to
qualify as an “asset” protected by Article 1 of Protocol
No. 1.
- It
follows that the Government's objection as to the non-applicability
of Article 1 of Protocol No. 1 must also be dismissed.
- The
Court furthermore concludes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It also notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government submitted that the case did not disclose any interference
with the applicant's property rights. They explained that the
applicant had complained against the second-instance judgment, which
had reversed that of the first-instance court passed in his favour.
However, since he could not have acquired any right under the
first-instance judgment that had not become final, the judgment of
the second-instance court could not have interfered with his property
rights.
- They
further claimed that, even assuming that there had been interference,
it had been justified as lawful, pursuing a legitimate aim and
proportionate. In particular, they argued that the case should be
viewed in the context of process of restitution of, and compensation
for, the property appropriated during the socialist regime, which
process involved comprehensive moral, political and economic
considerations. In such situations, which necessarily involve
balancing of conflicting interests between current users of the
property and persons from whom it had been taken, the State had a
wide margin of appreciation. The Split County Court in its judgment
relied on the decision of the Constitutional Court which abrogated
section 388(4) of the 1996 Property Act because it retroactively
allowed acquisition of ownership of socially owned property by
adverse possession to persons who held the possession of it without
any title and who knew that they could not have acquired its
ownership through adverse possession. In such circumstances the
impugned provision had thus created a completely new legal situation
affording those persons preferential treatment over the former owners
from whom the property had been taken by force during the socialist
regime. Therefore, the abrogation had had a legitimate aim of
protecting the rights of others and maintaining the principle of
legal certainty. Furthermore, the Constitutional Court's decision had
not been contrary to the principle of proportionality because by
adopting the Denationalisation Act the State had regulated the issue
of restitution of, and compensation for, the nationalised and
confiscated property, and it was under that Act the applicant should
have, and indeed had, asserted his right in respect of the property
confiscated from his late uncle.
- The
applicant disagreed.
2. The Court's assessment
(a) Whether there was an interference with the
peaceful enjoyment of “'possessions”'
- In
the light of the above finding that the applicant's claim was
sufficiently established to qualify as an “asset”
attracting the protection of Article 1 of Protocol No. 1, the Court
considers that the refusal of the second-instance court to grant that
claim and thereby acknowledge the applicant's ownership of the
property in question undoubtedly constituted interference with his
property rights.
- In
order to further establish whether that interference was justified it
has to be borne in mind that the applicant did not complain about the
abrogation of section 388(4) of the Property Act by the
Constitutional Court in its decision of 17 November 1999, and the
reasons behind that decision. Rather, he complained that, unlike the
first-instance court, the second-instance court had not acknowledged
the legal consequences that that provision had already produced
before it had been abrogated, namely that he had ex lege
acquired the ownership of the property at issue. Instead, the County
Court had, in the applicant's opinion, unwarrantedly applied the
Constitutional Court's decision of 17 November 1999, contrary to
section 53(2) of the Constitutional Court Act. This resulted in the
refusal of his claim, which in the applicant's view amounted to a
violation of his property rights.
- While
the reasons justifying the application of the Constitutional Court's
decision in the applicant's case resulting in refusal of his claim
and those justifying the abrogation of section 388(4) are different
and should be kept analytically separate, they are nevertheless
interrelated and the Court will examine them together when
determining whether the interference pursued an aim that was in the
public (general) interest and whether it was proportional to that
aim. However, it has first to establish whether the interference was
lawful.
(b) Whether the interference was “provided for
by law”
- The
Court notes that, as a consequence of the abrogation of section
388(4) of the 1996 Property Act by the Constitutional Court, the
Split County Court was under an obligation to apply the
Constitutional Court's decision of 17 November 1999 in the
(pending) proceedings before it pursuant to the Constitutional Court
Act, in particular its section 56(5). The County Court's judgment was
thus in accordance with the law. Apart from this constitutional law
aspect, the judgment was lawful in its civil law aspect as it was
based on the provisions of the 1996 Property Act, as amended by the
2001 Amendment.
(c) Whether the interference was “in
the public interest”
- The
Court observes that under section 53(2) of the Constitutional Court
Act, the abrogation of a statute or statutory provision has only ex
nunc effects. However, this rule – that was motivated by
the principle of legal certainty, which aims to protect acquired
rights – is not absolute. For instance, that rule does not
apply to pending cases, that is to situations where one party to the
proceedings claims to have acquired certain rights relying on a
statute or statutory provision in force at the time of the
institution of the proceedings but later on abrogated by the
Constitutional Court before the adoption of a final decision (section
56(5) of the Constitutional Court Act). This provision is not only
intended to protect the rights of persons who have suffered
consequences of an unconstitutional statute or provision. It also
reflects the principle that the courts cannot decide on the basis of
a statute or statutory provision that has been abrogated as
unconstitutional.
- In
that situation, as well as in those envisaged in other paragraphs of
section 56 of the Constitutional Court Act, the protection of the
rights of those who have suffered consequences of an unconstitutional
statute or statutory provision prevails over the principle of legal
certainty, that is, over the acquired rights of those who have
benefited from an unconstitutional statute or provision.
- It
follows that the interference in the present case, that is the
judgment of the Split County Court rendered in the application of
section 56(5) of the Constitutional Court Act served to protect the
rights of those who might have suffered consequences of the
application of section 388(4) of the 1996 Property Act before its
abrogation. In particular, as it follows from the Constitutional
Court's decision, section 388(4) of the 1996 Property Act was
abrogated because of its retroactive effects and the resultant
adverse consequences for the property rights of persons (hereafter:
“the third persons”) who had acquired those rights on the
basis of: (a) other provisions of that Act (such are, for example,
commercial companies, see paragraph 11 above), (b) the
Denationalisation Act (former owners or their heirs, see paragraph 12
above) or (c) the Sale to Occupier Act (former tenants of the flats
in social ownership let under the specially protected tenancies who
purchased their flats and thereby became their owners, see paragraph
8 above).
- Thus,
the Constitutional Court's decision is to be seen as a correction of
the unfair effects of section 388(4) of the 1996 Property Act and was
therefore in the “public interest”.
(d) Proportionality of the interference
- The
Court considers that the issue it has to determine is whether the
application of the rule embodied in section 56(5) of the
Constitutional Court Act – which in the circumstances such as
those prevailing in the present case gives precedence to the rights
of those who have suffered consequences of an unconstitutional
statute or provision over the rights of those who have benefited from
it – resulting in the interference with the applicant's
property rights, struck the requisite fair balance between the
demands of the general interest and the requirements of the
protection of the individual's fundamental rights, and whether it
imposed a disproportionate and excessive burden on the applicant
(see, inter alia, Jahn and Others v. Germany [GC], nos.
46720/99, 72203/01 and 72552/01, § 93, ECHR 2005 ...).
- In
this connection the Court reiterates that in situations such as the
one in the present case, involving fundamental
reform of a country's political, legal and economic system
during the transition from the socialist regime to a
democratic state, the national authorities face an
exceptionally difficult exercise in having to balance the rights of
different persons affected by the process. Under these circumstances,
a wide margin of appreciation should be accorded to the respondent
State (see, Jahn and Others, cited above, §§ 91-92,
and, mutatis mutandis, Broniowski v. Poland [GC], no.
31443/96, § 182, ECHR 2004 V).
- The
Court observes that during the socialist regime in Croatia, that is
for more than forty years, the acquisition of ownership of the
socially owned property by adverse possession was expressly
prohibited by law. The Court adheres to the Constitutional Court's
view that given the mentioned prohibition the persons enjoying
certain rights over socially owned property (see paragraph 6 above)
in the socialist period had no need to exercise those rights with the
same vigour, or to use appropriate remedies to protect that property
against the adverse possessors, as if the prohibition had not
existed. Thus, by enacting section 388(4) of the 1996 Property Act
the legislator indeed legislated retroactively as it attached legal
consequences to a previous behaviour to which such consequences could
not have been attached at the relevant time. By doing so it failed to
give the opportunity to the persons enjoying rights over socially
owned property to adjust their conduct.
- Against
this background, the domestic authorities balancing the competing
interests took the stance that the mere fact that for a brief period
of time amounting to less than three years (between the 1996 Property
Act's entry into force on 1 January 1997 and the abrogation of
its section 388(4) by the Constitutional Court on 17 November 1999)
the possessors of the socially owned property (like the applicant in
the present case) had a legal opportunity to become its owners
through adverse possession was not sufficient to outweigh the rights
and interests of third persons (see paragraph 60 above) over such
property. To hold otherwise would mean to allow section 388(4) to
subsist and produce consequences even after it had been abrogated as
unconstitutional, and effectively prevent those third persons from
realising their legally acknowledged rights over the socially owned
property.
- Turning
to the particular circumstances of the present case, the Court
observes that he domestic courts established: (a) that the land in
question had been owned by the applicant's late uncle, (b) that it
had been confiscated in 1949 by the socialist authorities and that
the State had been recorded as its owner in the land register ever
since, (c) that the applicant's mother had been in possession of the
land since 1953, as the applicant had continued to be after her death
on 16 February 1992. There is no indication that anyone, apart from
the State itself, acquired any rights over that land during
socialism, or that any (third) person (see paragraph 60 above),
except the applicant himself (see paragraph 25 above), has ever
claimed any rights in respect of that land. The Court therefore
considers that the concerns that prompted the Constitutional Court to
abrogate section 388(4) of 1996 Property Act were not present in the
applicant's case. That provision was abrogated to protect the rights
of third persons whereas in the applicant's case there were no rights
of third persons involved.
- In
these circumstances, the Court considers that the applicant, who
reasonably relied on legislation, later on abrogated as
unconstitutional, should not – in the absence of any damage to
the rights of other persons – bear the consequences of the
State's own mistake committed by enacting such unconstitutional
legislation. In fact, as a consequence of the abrogation, the
ownership of the property the applicant acquired by adverse
possession on the basis of the provision later on abrogated as
unconstitutional, was returned to the State, which thereby benefited
from its own mistake. In this connection, the Court reiterates that
the risk of any mistake made by the State authority must be borne by
the State and the errors must not be remedied at the expense of the
individual concerned, especially where no other conflicting private
interest is at stake (see, Gashi v. Croatia, no. 32457/05,
§ 40, 13 December 2007, and Radchikov v. Russia,
no. 65582/01, § 50, 24 May 2007).
- There
has accordingly been a violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained about the domestic courts' decisions not to
reopen criminal proceedings in which his uncle had been convicted. He
relied on Articles 2, 6, 7, 9, 10, 13 and 14 of the Convention, which
provide, respectively, for right to life, right to a fair trial, no
punishment without law, freedom of thought, conscience and religion,
freedom of expression, right to an effective remedy and prohibition
of discrimination in the enjoyment of Convention rights.
- The
Court reiterates that according to the established case-law of the
Convention organs Article 6 does not apply to proceedings concerning
the reopening of a criminal case (see, for example, Carlotto v.
Italy, no. 22420/93, Commission decision of 20 May 1997,
Decisions and Reports (DR) 89-B, p. 27). It further observes
that the remaining complaints do not concern interferences with the
applicant's Convention rights. It follows that this part of the
application is incompatible ratione materiae et personae with
the provisions of the Convention within the meaning of Article 35 § 3
and must be rejected pursuant to Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“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.”
A. Damage
1. The parties' submissions
- The
applicant claimed 15,000 euros (EUR) in respect of pecuniary damage
sustained on account of unlawful confiscation and the resultant
impossibility to use his property. He also claimed EUR 15,000 in
respect of non-pecuniary damage.
- The
Government contested these claims. They submitted, in particular,
that the applicant was not entitled to any pecuniary damage on
account of the alleged impossibility to use his property because it
was undisputed that he had actually used the land in question.
2. The Court's assessment
(a) Pecuniary damage
- As
regards the claim for pecuniary damages, the Court notes that
throughout the domestic proceedings and before the Court the
applicant argued that he and his late mother had been in continuous
possession of the land in question since 1953. That being so the
Court cannot accept his argument that he was unable to use it.
- Furthermore,
the Court reiterates that a judgment in which it finds a breach
imposes on the respondent State a legal obligation to put an end to
the breach and make reparation for its consequences. If national law
does not allow – or allows only partial – reparation to
be made, Article 41 empowers the Court to afford the injured party
such satisfaction as appears to it to be appropriate (see Iatridis
v. Greece (just satisfaction) [GC], no. 31107/96, §§
32-33, ECHR 2000-XI). In this connection the Court notes that under
section 428a of the Civil Procedure Act an applicant may file a
petition for reopening of the civil proceedings in respect of which
the Court has found a violation of the Convention. Given the nature
of the applicant's complaint under Article 1 of Protocol No. 1 and
the reasons for which it has found a violation of that Article, the
Court considers that in the present case the most appropriate way of
repairing the consequences of that violation is to reopen the
proceedings complained of. As it follows that the domestic law allows
such reparation to be made, the Court considers that there is no call
to award the applicant any sum in respect of pecuniary damage.
- In
the light of the foregoing considerations, the Court rejects the
applicant's claim for pecuniary damages.
(b) Non-pecuniary damage
- As
regards the claim for non-pecuniary damages, the Court considers that
a finding of a violation of Article 1 of Protocol No. 1 to the
Convention constitutes in itself sufficient just satisfaction in the
circumstances.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the costs and expenses incurred
before the domestic courts and EUR 2,000 for those incurred before
the Court.
- The
Government did not express an opinion on the matter.
- The
Court notes that the applicant failed to submit any relevant
supporting documents proving that he had actually incurred any costs,
although he was invited to do so. It follows that he failed to comply
with the requirements set out in Rule 60 § 2 of the Rules of
Court. The Court therefore rejects his claim for costs and expenses
(Rule 60 § 3).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the right of
property admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
4. Dismisses the remainder of the applicant's claim
for just satisfaction.
Søren Nielsen Christos Rozakis
Registrar President
