SECOND SECTION

DECISION

Application no. 45366/14 Josip MAJCAN against Croatia

The European Court of Human Rights (Second Section), sitting on 18 September 2018 as a Chamber composed of:

Işıl Karakaş , President, Julia Laffranque , Paul Lemmens , Valeriu Griţco , Ksenija Turković , Jon Fridrik Kjølbro , Georges Ravarani , judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 16 June 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Josip Majcan , is a Croatian national who was born in 1943 and lives in Buzet . He was represented before the Court by Mr I. Milanović , a lawyer practising in Umag .

2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background to the case

4. The legal system of the former Yugoslavia prohibited the acquisition of ownership of socially owned property by adverse possession ( dosjelost ) unless the statutory requirements for doing so had been met by 6 April 1941.

5. On 8 October 1991 the Croatian Parliament lifted the above-mentioned ban.

6. Subsequently, the new Property Act of 1996, which entered into force on 1 January 1997, provided in section 388(4) that the period prior to 8 October 1991 was to be included in calculating the period for acquiring ownership of socially owned immovable property by adverse possession.

7. By a decision of 17 November 1999 the Constitutional Court invalidated that provision as being contrary to the Croatian Constitution.

2. Proceedings in the present case

8. On 6 November 2006 the applicant brought a civil action against the State in the Buzet Municipal Court ( Općinski sud u Buzetu ), seeking to be declared the owner of twelve plots of land and to have them registered in his name in the land register. He submitted that the property at issue, even though it had been recorded in the land register as being in social ownership, had been in his and his ancestors ’ possession since the 1890s. Given that the statutory period for acquiring ownership by adverse possession had elapsed, the applicant claimed to have acquired ownership of the land.

9. By a judgment of 24 June 2008 the Buzet Municipal Court ruled in favour of the applicant.

10. Following an appeal by the State, on 12 April 2010 the Pula County Court ( Županijski sud u Puli ) quashed the first-instance judgment and remitted the case for fresh consideration.

11. In resumed proceedings, by a judgment of 24 December 2012 the Pazin Municipal Court ( Općinski sud u Pazinu ), to which the Buzet Municipal Court had in the meantime been annexed, dismissed the applicant ’ s action.

12. On 16 December 2013 the Pula County Court dismissed an appeal by the applicant and upheld the first-instance judgment, which thereby became final.

13. The ordinary courts found that the applicant had proved that he and his predecessors had been in continuous possession of the property in good faith since 1947 until the present day, but not before that period. That being so, and given that in the period between 6 April 1941 and 8 October 1991 it had been legally impossible to acquire ownership of socially owned property by adverse possession (see paragraph 4 above), the statutory time ‑ limit for doing so could not, in the applicant ’ s case, have even started to run before 8 October 1991. Furthermore, the time between 8 October 1991 and the dates on which those courts had given their judgments was not sufficiently long as ownership of State-owned immovable property could have been acquired by adverse possession only after forty years of continuous uninterrupted possession in good faith.

14. On 31 October 2013 the applicant lodged a constitutional complaint. He complained that the ordinary courts had dismissed his action and infringed his constitutionally guaranteed right of ownership because they had wrongly assessed the evidence. In particular, the courts had held that he had managed to prove that his ancestors had been in continuous possession of the property in question since 1947 but not before only because none of the witnesses who had given evidence in the proceedings had been born before 1943. In addition, the courts had completely ignored the statement given by one of the two oldest witnesses, who had testified that his father had told him that the land in question had been in the possession of the applicant ’ s family even before 1947. In that way the ordinary courts had disregarded the collective memory of the small village (consisting of only ten houses) in which the land was located, where each family had known for generations which land belonged to whom and passed this information on by word of mouth from one generation to another.

15. By a decision of 11 December 2013 the Constitutional Court declared the applicant ’ s constitutional complaint inadmissible, finding that the case did not raise any constitutional issues. The court served its decision on the applicant ’ s representative on 20 December 2013.

B. Relevant domestic law and practice

16. The relevant domestic law and practice is set out in the Grand Chamber case of Radomilja and Others v. Croatia ([GC], nos. 37685/10 and 22768/12, §§ 46-61, ECHR 2018).

COMPLAINT

17. The applicant complained under Article 1 of Protocol No. 1 to the Convention that his right to peaceful enjoyment of his possessions had been violated because the domestic courts had refused to acknowledge his ownership of land he had acquired by adverse possession.

THE LAW

18. The applicant complained that the Pazin Municipal Court ’ s judgment of 24 December 2012 had deprived him of property he had acquired by the operation of law. 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.”

A . The parties ’ submissions

1. The Government

19. The Government disputed the admissibility of the application, arguing that Article 1 of Protocol No. 1 to the Convention was not applicable to the present case, that the applicant had failed to exhaust domestic remedies and that the application was in any event manifestly ill ‑ founded.

20. In particular, the Government averred that the present case had to be distinguished from the case of Trgo v. Croatia ( no. 35298/04, 11 June 2009 ), in which the Court had found Article 1 of Protocol No. 1 to the Convention applicable and had eventually found a violation of that Article. In particular, they submitted that, unlike in Trgo , in the present case the applicant had instituted civil proceedings after the Constitutional Court had invalidated section 388(4) of the 1996 Property Act (see paragraphs 6 and 7 above). Accordingly, he could not have had legitimate expectations that that provision would be applied in his case and that his claim to be declared owner of the property in question would be allowed.

21. The Government further stated that the applicant had fully agreed with that argument by admitting that his case had a factual and legal background different from the Trgo case (see paragraph 23 below). In the Government ’ s view, his arguments as to why Article 1 of Protocol No. 1 to the Convention was nevertheless applicable (see paragraphs 22 below) concerned questions of fact and the application of domestic law, which under the Convention were not the Court ’ s task to examine.

2. The applicant

22. The applicant replied that his civil action had been aimed at establishing that his ancestors had acquired the land in question by adverse possession before 6 April 1941. The domestic courts had held that he had succeeded in proving that his ancestors had been in continuous possession of the property in question since 1947 but not before only because none of the witnesses heard in the proceedings had been born before 1943. They had however completely ignored the collective memory of the small community where every family had always known to whom land belonged and passed this information on by word of mouth from generation to generation.

23. In view of those arguments, the applicant submitted that the Government ’ s argument referring to the Trgo case was not relevant in the present case. In particular, in his reply to the Government ’ s observations he stated:

“Even though from the observations themselves it follows that the applicant Josip Majcan does not rely on the period between 6 April 1941 and 8 October 1991, this did not prevent the Government from [arguing] that in the said period it had not been possible to acquire ownership of socially owned immovable property by adverse possession. The applicant points out that his civil action had been aimed at establishing that the ownership of the immovable property [in question] had been acquired by adverse possession through his predecessors before 6 April 1941.

...

... the applicant points out that the Government has erroneously referred to the decision in [the case of] Trgo v. Croatia because the applicant did not argue that he had acquired ownership by adverse possession in the period between 6 April 1941 and 8 October 1991 but, on the contrary, [argued that he had] acquired [it] before 6 April 1941.”

B . The Court ’ s assessment

24. 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” (see, for example, Radomilja and Others , cited above, § 142, and the cases cited therein).

25. In this connection the Court first observes that the applicant ’ s civil action before the domestic courts was aimed at establishing that his ancestors had acquired the land in question by adverse possession (see paragraphs 8 and 22 above).

26. It further notes that under Croatian law ownership will, in principle, be acquired by adverse possession ipso jure when all statutory conditions are met (see Trgo , cited above, § 46) . 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 “possession” relied on by the applicant was a claim rather than an “existing possession” (see Radomilja and Others , cited above, § § 142-152).

27. Where a proprietary interest is in the nature of a claim, it may be regarded as an “asset” only if there is a sufficient basis for that interest in national law (for example, where there is settled case-law of the domestic courts confirming it), that is, when the claim is sufficiently established as to be enforceable (see, for example, Radomilja and Others , cited above, § 142, and the cases cited therein).

28. In this connection the Court takes note of the applicant ’ s submission that his civil action was aimed at establishing that his ancestors had acquired the land at issue by adverse possession before 6 April 1941 and that therefore the Court ’ s findings in Trgo were not relevant in his case (see paragraphs 22-23 above).

29. That being so, and having regard to the Grand Chamber judgment in the case of Radomilja and Others (cited above, §§ 98-133), it must be concluded that the applicant limited the factual basis of his complaint, and thereby the scope of the case before the Court, to the period before 6 April 1941. Consequently, the Court ’ s findings in Trgo , which primarily relate to the period between 6 April 1941 and 8 October 1991, are not relevant in the present case.

30. Therefore, the issue to be examined is whether the applicant ’ s claim to be declared the owner of the land in question because his ancestors had acquired it by adverse possession before 6 April 1941 had sufficient basis in national law to be regarded as an “asset” and therefore a “possession” protected by Article 1 of Protocol No. 1 (see, mutatis mutandis , Radomilja and Others , cited above, § 144).

31. It is to be noted in this regard that the applicant challenged certain findings of fact of the domestic courts (see paragraph 22 above). However, the Court reiterates that it is not its task to substitute its own assessment of the facts for that of the domestic courts, and that it requires cogent elements to lead it to depart from the findings of fact made by those courts (see, for example, Radomilja and Others , cited above, § 150).

32. Since, in the present case, there are no elements that would lead it to contradict the findings of fact of the domestic courts, the Court concludes that the applicant ’ s claim to be declared the owner of the land in question because his ancestors had acquired it by adverse possession before 6 April 1941 did not have sufficient basis in the national law to qualify as “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.

33. It follows that the present application is inadmissible as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 thereof.

34. In the light of this conclusion, the Court does not find it necessary to rule on the Government ’ s remaining inadmissibility objections (see paragraph 19 above).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 October 2018 .

Stanley Naismith Işıl Karakaş Registrar President