FIRST SECTION

DECISION

Application no . 5076/09 Danijel GURDULIĆ and others against Croatia

The European Court of Human Rights ( First Section ), sitting on 8 April 2014 as a Chamber composed of:

Isabelle Berro-Lefèvre, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Erik Møse, Ksenija Turković, Dmitry Dedov, judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 29 December 2008 ,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Danijel Gurduli ć , Ms Katica Gurdulić , Mr Ivan Gurdulić , Ms Antica Gurdulić Å verko and Ms Adela Marangunić are Croatian nationals who were born in 19 7 4 (the first applicant), 1938 (the second applicant), 1972 (the third applicant) and 1939 (the fourth and the fifth applicant). The fifth applicant lives in Trieste (Italy) whereas the other applicants live in Zagreb. They were all represented before the Court by Ms I. Bojić, an advocate practising in Zagreb.

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

A. The circumstances of the case

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

1. Background to the case

4 . In 1905 the applicant s ’ ancestor J.G. bought and thereby became the owner of the land at issue. On 13 April 1931 he leased it to a sports association , A.T.K. (later on T.D.S. and T.K.S., here in after “ the tennis club ” ) , which intended to build tennis courts on them.

5 . It would appear that the land has remained in the possession of the tennis club ever since. Even though some tennis courts were built before the Second World War, it seems that the tennis club carried out significant (re)construction works in the period between 1949 and 1952 , which resulted in the sports complex consisting of four tennis courts and the central stadium.

6 . By the entry into force of the Nationalisation of Rental Buildings and Construction Land Act (here in after “the Nationalisation Act of 1958 ”) on 26 December 1958 the land was nationalised as undeveloped construction land ( neizgrađeno građevinsko zemljište ) and thereby passed into social ownership ( društveno vlasništvo ). Under sections 38-39 of that Act undeveloped construction land remained in the possession of the former owner until the former owner, on the basis of a decision by the relevant municipal authority, surrendered possession of the land to the local authorities or to another person, for construction of a building or other facility or for other works. While in possession of the nationalised land the former owner had the right to use the nationalised land free of charge or to allow another person to use it with or without a charge , according to the rules governing lease of agricultural land (see paragraph 42 below).

7 . In 1961 the two plots of land were recorded in the land register as being in social ownership ; the former owners (the applicants ’ relatives) had the right to use them until the relevant authority issued a decision transferring possession of the plots to the local authorities or to another person.

8 . On 2 March 1977 the two plots were joined into a single cadastral plot.

9 . In preparation for the Mediterranean Games held in Split between 15 and 29 September 1979 further (re)construction works were carried out to the Firule Sports Centre. It would appear that two more tennis courts, a stadium and a gym were built. The construction was completed in 1979.

10 . On 16 March 1981 the Split Municipality and the tennis club concluded a “self-management agreement ” (“the Self-Management Agreement”) under which the Split Municipality transferred to the tennis club the right to manage , use and maintain the tennis courts the Municipality had built for the Mediterranean Games. The Split Municipality also agreed that the tennis club could record the right to use those tennis courts in the land register. The agreement did not specify the cadastral plots on which those tennis courts were located (see paragraph 51 below).

11. O n 12 October 1995 the 1995 Amendment to the Sports Act entered into force. It provided that all sports facilities and other socially owned immovable property which sports organisations and associations had the right to use was to pass into the ownership of the local authorities in whose territory such property was located . However, in order to become owners the local authorities had to issue a decision taking over such property within ninety days of the entry into force of the Amendments (see paragr aph 43 below) .

12 . By a decision of 5 December 1995, published in the local official gazette and based on the 1995 Amendment to the Sports Act (see paragraph 43 below), the Split Township took over and thus became the owner of all sports facilities and other socially owned immovable property on its territory referred to in those Amendments . The decision listed “Firule tennis courts ” among the sports facilities taken over by the township.

13. On 1 January 1997 the Property Act entered into force. Pursuant to its section 361 all holders of the right to use undeveloped construction land in social ownership became by the operation of law the owners of the land they had the right to use (see paragraph 44 below).

14. By a decision of 31 December 2009 the Split Township specified the cadastral plots to which its decision of 5 December 1995 (see paragraph 12 above) referred. The plot in question (no. 687) was listed therein.

2. The first set of civ il proceedings for compensation

15. Meanwhile, on 15 April 1969 the applicants ’ relatives brought a civil action in the Split Municipal Court ( Općinski sud u Splitu ), seeking compensation from the tennis club for unauthorised use of the land at issue.

16 . By a judgment of 6 March 1989 the Split Municipal Court ordered the tennis club to pay the applicants ’ relatives 2,089,020 Yugoslav dinars (YUD) , with interest, for using the land without any legal basis in the period between 1 January 1967 and 1 January 1986.

17. By a judgment of 1 September 1989 the Split County Court ( Okružni sud u Splitu ) dismissed an appeal by the tennis club and upheld the first-instance judgment. It endorsed the finding of the first-instance court that the tennis club had had no legal basis to use the land in question .

18. By a judgment of 3 January 1997 the Supreme Court ( Vrhovni sud Republike Hrvatske ) dismissed an appeal by the tennis club by endorsing the reasoning of the lower courts. In particular, that court held as follows:

“T he land at issue was nationalised on the basis of sections 38 and 39 of [the Nationalisation Act of 1958]. However, the right to use [that land] remained until the present day, recorded [in the land register] in the name of the plaintiffs as [its] former owners. In the early 1950s the defendant commenced construction works on that land and has been using it for its own purposes ever since.

Even though the defendant applied on several occasions to [the relevant authority within] the former Split Municipality to order dispossession of the plaintiffs in its favour, those requests were never met. ..

The plaintiffs throughout this period, namely from the commencement of the construction of the tennis courts until the action was brought in this case, demanded compensation for the land at issue, either by awarding them other immovable property or by paying them financial compensation. However, they did not obtain it, either from the defendant or in the regular proceedings for determining the level of compensation ...

Given that the land in dispute was not taken out of the possession of the plaintiffs, either on the basis of a decision by the Split Municipality or on any other basis, nor was it given to the defendant on the basis of a decision by the relevant authority ... the defendant does not have any [legal] basis to use the land at issue. Even if the defendant had received building permit ... for construction of a tennis court during the time the land was privately owned by the plaintiffs or afterwards, namely after the nationalisation of the land, the possession of building permit itself is not a [legal] basis for losing or acquiring the right of ownership or, after nationalisation, the right to use the land.

By unlawfully retaining the plaintiffs ’ land in its possession, the plaintiffs being the holders of the right to use that land, and by not paying them any compensation throughout the entire period the land was in its possession, the defendant is obliged to pay the plaintiffs compensation at their request corresponding at least to the level of rent they would have received if they had been leasing that land to third parties.”

3. The second set of civil proceedings for compensation

19 . In the meantime, o n 7 May 1990 the applicants brought a civil action in the Split Municipal Court, seeking compensation from the tennis club for the use of the land in the period after 1 January 1990.

20. By a judgment of 19 July 2007 the Split Municipal Court ruled for the applicants, and ordered the tennis club to pay the applicants a total of 6,071,752 Croatian kunas (HRK) in compensation for the use of the land in the period between 1 January 1990 and 30 April 2006, together with the accrued statutory default interest. In particular, it held as follows:

“ ... section 88 of the Sports Act as amended by the 1995 Amendments provided that only those sports facilities which sports organisations and associations or other legal entities had the right to use passed into the ownership of townships and municipalities in whose territory they were located.

The defendant does not have the right to use the sports facilities built on the plot of land in dispute, because the right to use the land was, on the basis of sections 38 and 39 of [the Nationalisation Act of 1958], recorded [in the land register] in the name of the plaintiffs ’ ancestors, which situation remained unaltered until the entry into force of the Property Act whereby the right to use was converted into the right of ownership of those recorded as users, that is, of the plaintiffs ...

The defendant did not acquire even an unrecorded right of use, because [the defendant] did not provide the court with relevant evidence [to that effect]. The defendant has been continuously in dispute with the plaintiffs and their ancestors over the immovable property in question since 1966 ... the Split Township could not transfer to the defendant the right to administer and use land which it did not have. The immovable property at issue was never taken out of the possession of the plaintiffs in accordance with the law [and] in the relevant proceedings; there is no decision by the relevant authority to that effect; this last is not disputed between the parties. The plaintiffs and their ancestors were recorded as users and now (co-) owners of the land in question.”

21 . Following an appeal by the defendant, by a judgment of 20 November 2008 the Split County Court ( Županijski sud u Splitu ) reversed the first-instance judgment and dismissed the applicants ’ action. It held that the right to use the land in question had been transferred to the tennis club by the Self-Management Agreement of 16 March 1981 (see paragraphs 10 above and 51 below), and that b y a decision of 5 December 1995 (see paragraph 12 above), based on the 1995 Amendments to the Sports Act (see paragraph 43 below), the local authorities had become the owners of that land. This meant that since 16 March 1981 the applicants had not had the right to use the land or to claim any compensation from the tennis club. The relevant part of that judgment reads as follows:

“In the early 1950s the defendant had commenced the construction of tennis courts on the land in dispute , which was then nationalis ed on the basis of [the Nationalisation Act of 1958]. The Split Municipality, which had built the tennis courts, took possession of them and long after the nationalisation [had taken place] transferred to the defendant (the tennis club), the right to administer, use and maintain the tennis courts by the self-management agreement of [ 16 March ] 1981 , in accordance with the law.

By the entry into force of the [1995] Amendments to the Sports Act the social ownership of sports facilities was transformed by the operation of law, before the entry into force of the Property Act. On the basis of section 88 of the Sports Act [as amended by the 1995 Amendments], the sports facilities in social ownership, in the present case the tennis courts built on the land in dispute, passed into the ownership of the Split Township, which transferred that immovable property to the defendant, who has thus been using them, in this appellate court ’ s view, on the basis of a valid legal title.

Contrary to the view of the first-instance court, this appellate court considers in the light of the foregoing that in the period between 1990 and 2006 the defendant was not unlawfully using the cadastral plot no. 687 on which the tennis courts were built.

Therefore, there is no legal basis for the plaintiffs ’ compensation claim for the unauthorised use of the disputed land during the above sixteen-year period.”

22 . On 27 March 2012 the Supreme Court dismissed an appeal on points of law ( revizija ) by the applicants. It endorsed the reasons given by the second-instance court. It added, in reply to the applicants ’ main argument in their appeal:

“The plaintiffs ’ argument that section 88 of the Sports Act [as amended by the 1995 Amendments] is not applicable in the present case because [the case] does not concern sports facilities in social ownership which sports organisations had the right to use, is unfounded. In particular, the disputed immovable property had passed into social ownership on the basis of [the Nationalisation Act of 1958]; the Split Municipality ... had entered into possession of that property and commenced the construction of tennis courts and by the Self-Management Agreement of [ 16 March ] 1981 transferred to the defendant the right to manage, use and maintain the tennis courts. Therefore, the present case concerns immovable property in social ownership the defendant had the right to use and which, on the basis of section 88 of the Sports Act [as amended by 1995 Amendments], passed into the ownership of the Split Township.”

23 . On 18 June 2012 the applicants lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) against the Supreme Court ’ s judgment. Relying on Articles 14 paragraph 2, 26 and 48 of the Croatian Constitution (see paragraph 41 below), they alleged violations of their constitutional rights to equality before the law, equality before the courts, fair hearing and the right of ownership.

24. It would appear that those proceedings are still pending before the Constitutional Court.

4. The civil proceedings for repossession

25 . Meanwhile, o n 25 August 1994 the applicants brought a civil action in the Split Municipal Court against the tennis club, seeking repossession of the land in question . They argued that the tennis club was in possession of the tennis courts situated on that land without any legal basis.

26. By a judgment of 13 September 1999 the Split Municipal Court ordered the tennis club to surrender possession of the land to the applicants. The relevant part of that judgment reads as follows:

“The defendant has been using the immovable property at issue by building a tennis court on it, which thus serves the needs of the defendant as a tennis club. As can be seen from the [first proceedings for compensation] the disputed immovable property has never been taken out of the plaintiffs ’ possession even though the defendant on several occasions unsuccessfully sought possession from [the relevant authority within] the former Split Municipality. It is therefore indisputable that until the present day the immovable property in question has not been taken out of the plaintiffs ’ possession, which means that the defendant has been holding it unlawfully without a valid legal title. The plaintiffs therefore have the right to seek that the defendant vacate the property and surrender it to them.

Section 38 of the [the Nationalisation Act of 1958] provided that n ationalised construction land was to remain in the possession of its former owners until they surrender ed possession of the land to [the local authorities] or to another person, for construction of a building or other facility or for other works , or to allo w another person to use it for compensation, o n the basis of a decision by the [relevant municipal authority]. Section 39 of that Act provided that t he former owner of the nationalised undeveloped construction land had the right to use that land ... as long as it remained in his or her possession, free of charge

Given that the relevant authority has not so far issued a decision on dispossession allowing the disputed immovable property to be taken from the possession of the plaintiffs, [they] still have the right to use it permanently, and the defendant has been unlawfully disturbing them in the exercise of that right, and has not been paying compensation for the entire period during which it has been using the immovable property at issue.

In the light of the foregoing, and given that the land in dispute was not the subject of a decision by the Split Municipality or of any other relevant authority, and has not been taken out of the possession of the plaintiffs and ... given to the defendant for use, this court finds that the defendant does not have any [legal] basis to use the land at issue and thus has to surrender it to the plaintiffs ... to whom that right lawfully belongs. [The] plaintiffs ’ claim is therefore well-founded. ”

27. Following an appeal by the defendant, by a judgment of 17 October 2005 the Split County Court reversed the first–instance judgment and dismissed the applicants ’ action. In so doing it held as follows:

“It is undisputed that the plaintiffs succeeded in [the first set of civil proceedings for compensation].

What is disputed, however, is whether the plaintiffs can successfully seek repossession and return of the nationalised land relying on the absence of a decision by the relevant authority whereby the defendant would be allowed to take possession of the immovable property in question.

In the view of this court [this] dispute is to be resolved by applying the provisions of the Sports Act. That Act regulated transformation [of ownership] ... of sports facilities ...

By the entry into force of the 1995 Amendments to the Sports Act sports facilities ex lege passed from social ownership ... into the ownership of those townships and municipalities on whose territory they were located.

Section 88a of the Sports Act provided that those entitled [ town councils or municipal council s] had to pass an act taking over sports facilities and other immovable property within ninety days of the day of the entry into force of the 1995 Amendments to the Sports Act ...

In the Official Gazette of the Split Municipality no. 5 of 27 March 1981 the Self-Management Agreement was published, transferring the right to administer, and regulating the [legal] relationships concerning the use and maintenance, of newly built tennis courts in Split, whereby the Split Municipality as the developer ... transferred to the [tennis club] the right to use and maintain the tennis courts ...

On 5 December 1995 the Split Township (on the basis of section 88a of the Sports Act) passed the Decision on takeover of sports facilities and other immovable property in social ownership into the ownership of the Split Township, whereby ... inter alia , the Firule tennis courts passed into the ownership of the Split Township ...

In the present case the sequence of events shows that the tennis courts passed into the ownership of the Split Township, and thus the plaintiffs are not entitled to sue the defendant by their rei vindicatio action acting as the owners.

For these reasons ... the contested judgment had to be reversed and the plaintiffs ’ action dismissed in its entirety. ”

28 . On 17 January 2006 t he applicants , alleging violations of their constitutional right to equality before the law and the right of ownership, lodged a constitutional complaint with the Constitutional Court against the County Court ’ s judgment. They relied on Articles 14 paragraph 2 and 48 of the Croatian Constitution (see paragraph 41 below).

29. By a decision of 9 October 2008 the Constitutional Court di smissed the applicants ’ constitutional complaint. It held:

“The legal views expressed in the contested judgment are based on a constitutionally acceptable interpretation and application of the relevant substantive law. The Constitutional Court finds that the Split County Court gave reasons for its views expressed in the contested judgment, which indisputably are not the result of an arbitrary interpretation and application of the relevant substantive law.

The immovable property in question , being socially owned , had been passed on the basis of section 88 of the Sports Act [as amended by 1995 Amendments] into the ownership of the Split Township, which transferred them to the defendant, who has thus been using them on the basis of a valid legal title. The Constitutional Court therefore finds that the second-instance court correctly applied the substantive law when holding that the complainants were not entitled to sue the defendant acting as the owners.

As regards the complainants ’ argument that the relevant provisions of the Property Act (in particular section 361) should have been applied in the present case, the Constitutional Court notes that this provision is not relevant in the present instance. The Constitutional Court finds that in the instant case the [statutory] requirement for returning the immovable property in question, which in kind constitutes a sports facility (the Firule tennis courts), to the complainants was not satisfied because [that property] had been transferred into social ownership when [the Nationalisation Act of 1958] was applied. [That is so because] the transformation of social ownership of sports facilities was regulated by the Sports Act, which entered into force before the Property Act.

Since the second-instance court by reversing the first-instance judgment correctly applied the relevant substantive law and dismissed the complainant ’ s action, the Constitutional Court finds that the complainants ’ constitutional right guaranteed by Article 14 paragraph 2 of the Constitution was not breached ...

The Constitutional Court protects the right of ownership at the constitutional level in a manner that prevents restriction or taking of that right by the S tate authorities, unless a restriction or taking is provided for by law ... interferences with ownership by other legal subjects (natural or legal persons) are property disputes of a private-law nature. The Constitutional Court examines also such decisions of judicial and other authorities if it finds that the contested decision, having regard to the protection of human rights and fundamental freedoms guaranteed by the Constitution, is based on an erroneous or unacceptable legal view.

Given the subject matter of the civil proceedings that preceded these proceedings before [it], the Constitutional Court finds that the complainants ’ right [of ownership] guaranteed by Article 48 of the Constitution were not breached. ”

5. Other relevant proceedings

(a) Land registry proceedings

31. On 27 September 1996 the Split Township, relying on section 88 of the 1995 Amendment to the Sports Act (see paragraph 43 below), lodged an application with the Land Registry Division of the Split Municipal Court seeking to be recorded in the land register as the owner of the plot of land claimed by the applicants.

32. On 17 April 1998 and 2 March 1999 the applicants, relying on section 361 of the Property Act (see paragraph 44 below), lodged an application with the same judicial authority , seeking to be recorded in the land register as the owners of the same plot of land.

33 . On 15 June 2005 the Land Registry Division of the Split Municipal Court allowed the application by the applicants and recorded them in the land register as the owners of the plot of land in question.

34. By a decision of 5 December 2011 the Land Registry Division of the Split Municipal Court dismissed the Split Township ’ s application of 27 September 1996 for recordation as owner. The Split Township appealed and the appellate proceedings are currently pending before the Split County Court.

(b) Third civil proceedings for compensation and proceedings for declaration of ownership

35. On 3 January 2007 the applicants brought a civil action against the tennis club and the Split Township seeking compensation for the unlawful use of the land in question from June 2006.

36. On 15 May 2009 the Split Township brought a counterclaim against the applicants, seeking to be declared the owner of the land in dispute. Shortly afterwards the Municipal Court decided to split the proceedings into two, one for compensation and the other for declaration of ownership.

37. By a judgment of 29 October 2010 the Split Municipal Court dismissed the applicants ’ action for compensation.

38. By a judgment of 5 June 2012 the Split County Court dismissed an appeal by the applicants and upheld the first-instance judgment.

39. On 24 September 2012 the applicants lodged an appeal on points of law with the Supreme Court against the second-instance judgment. The proceedings are currently pending before that court.

40. The proceedings between the applicants and the Split Township for declaration of ownership are currently still pending before the Split Municipal Court as the first-instance court.

B. Relevant domestic law and practice

1. The Constitution

41 . The relevant Articles of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)), 76/10 and 85/10 read as follows:

Article 14

“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other beliefs, national or social origin, property, birth, education, social status or other characteristics.

All shall be equal before the law.”

Article 26

“All citizens of the Republic of Croatia and foreigners shall be equal before the courts and other State or public authorities.”

Article 29 § 1

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

Article 48

“1. The right of ownership shall be guaranteed.

2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.”

2 . The Nationalisation of Rental Buildings and Construction Land Act

42. The relevant provisions of the Nationalisation of Rental Buildings and Construction Land Act ( Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta , Official Gazette of the Federal People ’ s Republic of Yugoslavia no. 52/58 – “the Nationalisation Act of 1958 ”), which entered into force on 26 December 1958, provided as follows:

I. GENERAL PROVISIONS

Section 8

“(1) Buildings, parts of buildings and construction land nationalised by this Act shall pass into social ownership on the day of its entry into force.

(2) A decision of the relevant authority rendered in the proceedings prescribed by this Act and [relevant] subordinate legislation ... shall determine which objects are nationalised by this Act.”

II. OBJECT OF NATIONALISATION

3. Construction land

Section 34(1)

“All developed or undeveloped construction land located in ... towns ... shall be considered construction land and shall be nationalised [pursuant to this Act].”

Section 38

“Nationalised undeveloped construction land shall remain in the possession of its former owners until they surrender possession of the land to [the local authorities] or to another person for construction of a building or other facility or for other works , on the basis of a decision by the [relevant municipal authority],

P ossession of the land shall not be surrendered to [the local authorities] or to another user before the user needs it to perform construction or other works with a view to bringing the land into its designated use .”

Section 39(1)

“ T he former owner of nationalised undeveloped construction land shall have the right to use that land ... as long as it remains in his or her possession, free of charge , and shall also have the right to allow another person to use it with or without charge , according to the legislation governing the lease of agricultural land.”

3 . The 1995 Amendments to the Sports Act

43 . The relevant provisions of the Sports Act ( Zakon o Å¡portu , Official Gazette of the Republic of Croatia nos. 60/92 69/92 (corrigendum), 25/93, 11/94 and 77/95), which was in force between 9 October 1992 and 30 October 1997, as amended by the 1995 Amendment ( Zakon o izmjenama i dopunama Zakona o Å¡portu , Official Gazette of the Republic of Croatia no. 77/95), which entered into force on 12 October 1995, read as follows:

Section 88(1)

“Sports facilities and other immovable property in social ownership which sports organisations and associations or other legal entities established to manage sports facilities (companies, institutions, work organisations) have the right to use shall pass into the ownership of townships and municipalities in whose territory they are located.”

Section 88a(1)

“ An act of taking over the sports facilities and other immovable property referred to in paragraph 1 of section 88 of this Act shall be passed by the town or municipal council within ninety days of the entry into force of this Act.”

4 . The Property Act

44 . The relevant provisions of the Ownership and Other Rights In Rem Act ( Zakon o vlasništvu i drugim stvarnim pravima , Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09 and 143/12), which entered into force on 1 January 1997, read as follows:

Transformation of the right to use undeveloped construction land

Section 361

“(1) The right to use undeveloped construction land in social ownership which has not been extinguished before the enactment of this Act shall by its entry into force be converted into the right of ownership of the holder of that right or of his or her legal successor ...

(2) ...

(3) The entries in the land register of the right [to use undeveloped construction land] referred to in paragraph 1 ... of this section made before the entry into force of this Act shall be consi dered as entries of the right of ownership.”

5 . The Civil Procedure Act

(a) Relevant provisions

45 . The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/77, 36/77 (corrigendum), 36/80, 69/82, 58/84, 74/1987, 57/89, 20/90, 27/1990 and 35/91 and Official Gazette of the Republic of Croatia nos. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 57/11 and 148/11), which has been in force since 1 July 1977, are as follows:

Section 12(1) and (2)

“When a court ’ s decision depends on the prior resolution of the question whether a certain right or legal relationship exists, and this question has not yet been decided by a court or other competent authority (the preliminary question ), the court may settle that question itself, unless special legislation provides otherwise.

The court ’ s decision on a preliminary question shall have legal effect only in the civil proceedings in which that question was settled.”

Declaratory action

Section 187(1) and (3)

“(1) The plaintiff may by his or her action ask the court merely to establish the existence or non-existence of a right or legal relationship, or authenticity or inauthenticity of a document.

...

(3) If the decision in a case depends on the existence or non-existence of a particular legal relationship which became disputed before or during civil proceedings, the plaintiff may [amend his or her original action and] raise another claim asking the court to declare that this legal relationship does or does not exist, provided that the court before which the civil proceedings are pending is competent to deal with such a claim.”

Section 213(1)

“ The court shall order a stay of proceedings :

1) if it has decided not to settle the preliminary issue itself (section 12) ...,

2) ..., ”

5. Reopening of proceedings

Section 421(1)

“[Civil] proceedings concluded by a final court decision may be reopened following a petition by a party ...

9) if the competent authority by a final decision subsequently resolve s the preliminary issue (section 12 paragraph 1 and 2) on which the court decision is based ...”

Section 422(1) and (3)

“ A p etition for reopening [of civil proceedings] shall be filed within a thirty-day time-limit ...

5) in cases referred to in section 421 paragraph 1 sub-paragraph ... 9 of this Act – from the time the party had available to it the final decision which is the ground for reopening ...

...

A p etition for reopening [of civil proceedings] cannot be filed after the expiry of the five-year time-limit from the day the decision [contested by the petition] became final.”

(b) Relevant practice

(i) The case-law of the Supreme Court

46 . In decision no. Rev 54/1993 of 7 October 1993 the Supreme Court held that the courts in the new civil proceedings for (further) compensation for injuries sustained in a road traffic accident were not bound by the findings on the defendant ’ s tort liability made in the earlier civil proceedings for compensation between the same parties concerning the same accident. That was so because in both proceedings the issue of the defendant ’ s tort liability was a preliminary question for ruling on the main issue, namely whether the plaintiff was entitled to compensation from the defendant. The relevant part of that decision reads as follows:

“The question of the defendant ’ s liability was in those [earlier] proceedings the preliminary question on which the court decided in those proceedings (section 12 of the Civil Procedure Act). The court ’ s assessment of the defendant ’ s liability is contained in the reasons for the judgment delivered in those proceedings. That assessment binds the court and has legal effect only in those proceedings (section 12 paragraph 2 of the Civil Procedure Act). It does not have the force of res judicata . That ruling on the defendant ’ s possible liability was not entered into the operative provisions but in the reasons for that judgment. In any other civil proceedings that question of the defendant ’ s liability for the road traffic accident which took place on 1 December 1990 can be resolved differently. That further means that this assessment and view of the court made in the [earlier] proceedings on the exclusive liability of the defendant binds the court only in those proceedings and is of no relevance in the present proceedings, in which the plaintiff asks for further compensation.”

47. In decision no. Rev 1975/1999 of 3 May 2001 the Supreme Court held that the courts in the later civil proceedings for declaring a loan contract null and void were not bound by the findings made in the earlier civil proceedings, in which the courts had ordered payment on the basis of the same contract after having first preliminarily found that the contract was valid.

(i i ) The case-law of the Constitutional Court

48 . In decisions nos. U-III-487/2001 of 31 October 2001 and U-III-632/2001 of 5 December 2001 the Constitutional Court also held, like the Supreme Court in the case no. Rev 1975/1999 (see the preceding paragraph), that the courts in the subsequent civil proceedings were entitled to declare a loan agreement null and void because they were not bound by the earlier finding on the preliminary question that the agreement was valid made in the context of previous civil proceedings where the courts had ordered payment in performance of that agreement. The relevant part of those decisions reads as follows:

“The fact that civil proceedings were conducted between the same parties in which the plaintiff ’ s claim for specific performance was allowed, on the basis of a particular legal relationship, does not mean that it was also established with the force of res judicata that this legal relationship exists and that it is legally valid.

Therefore, in the present case the final judgment ordering the defendant to take a specific action does not at the same time presuppose the validity of the legal ground giving rise to that obligation. [That is so] because the validity of that legal ground was not the object of examination in the previous civil proceedings ...”

( c ) The doctrine

49 . Croatian legal scholars expressed the following opinion on the legal effects of the civil courts ’ rulings on preliminary questions (see Triv a, Siniša; Dika, Mihajlo: Građansko parnično procesno pravo [Civil Procedure L aw ] , Narodne novine , Zagreb, 2004, p . 100 ) :

“When the civil court itself adopts a view on the preliminary question, its view has legal effect only in the civil proceedings in which that question was settled. The decision [on the preliminary question] does not appear in the operative provisions but [only] in the reasoning, as one of the reasons for the court ’ s decision on the main issue. No other authority – including the one before which that issue arises also as a preliminary question – is bound by the views of the civil court on preliminary question. The court ’ s view on the preliminary question expressed in the reasoning of a judgment does not acquire the force of res judicata . ”

50. The “incidental declaratory action” ( incidentalna tužba za utvrđenje ) provided in section 187(3) of the Civil Procedure Act (see paragraph 45 above) is a procedural instrument enabling parties to civil proceedings to turn a preliminary question which was disputed before, or which became disputed during those proceedings, into a main issue, with the effect that the decision on that issue would be entered into the operative provisions of the judgment and thus acquire the force of res judicata and be binding in any other proceedings between the same parties in which that issue arose or may arise. The same legal scholars (see the preceding paragraph) explained the function and importance of this action in the following terms (see Triv a, Siniša; Dika, Mihajlo: Građansko parnično procesno pravo , Narodne novine , Zagreb, 2004, pp. 401-402 ) :

“ If the decision in a case depends on the existence or non-existence of a particular legal relationship which became disputed before or during the civil proceedings, the plaintiff may [amend his or her original action and] raise another claim asking the court to declare that this legal relationship does or does not exist, provided that the court before which the civil proceedings are pending is competent to deal with such a claim.

The disputed [legal] relationship must be of preliminary relevance for a decision on the main claim ... The fact that this [preliminary question] is also disputed justifies the conclusion that there is a legal interest in seeking that [this question] also be resolved with the force of res judicata .

[Section 187(3) of the Civil Procedure Act] ... enables plaintiffs to ask already in their action that the court, besides deciding on their claim for specific performance, (for example, on a claim for payment), by the same judgment declares that the legal relationship from which that claim arises exists, namely that it inserts in the operative provisions a “declaratory preamble” ... The court must in any event examine and take a preliminary view on it. Deciding on the principal legal relationship is of special importance in situations where the plaintiff in particular proceedings exercises only some of its powers ... [Therefore] a declaratory judgment on the existence of the principal legal relationship may serve as a ground for substantially identical adjudication in subsequent civil proceedings in which the plaintiff would be exercising his or her other powers from the same [legal] relationship. [The same applies] to civil proceedings on the rights in rem and other absolute rights in which a res judicata declaration of the [existence of the] principal [legal] relationship may be important even outside the particular civil proceedings for surrendering the property or for any other performance based on the existence of that absolute right.”

6. Self-Management Agreement of 16 March 1981

51 . The relevant clauses of the Self-Management Agreement of 16 March 1981 on the transfer of the right to manage, and on the regulation of relationships as regards the use and maintenance of the newly built tennis courts in Split ( Samoupravni sporazum o prijenosu prava upravljanja i uređenju odnosa u pogledu korištenja i održavanja novoizgrađenih tenis igrališta u Splitu , Official Gazette of the Split Municipality no. 5 of 27 March 1981) read as follows:

Clause 1

“ By this Agreement the parties regulate mutual rights, obligations and responsibilities as regards the management, use and maintenance of the tennis courts built by the Split Municipality as the developer for the purposes of holding the Mediterranean Games in Split in 1979. ”

Clause 2

“ The Split Municipality as the developer of the tennis courts transfers to [the tennis club] the right to manage, use and maintain the tennis courts, with all secondary facilities. ”

Clause 3

“ The Split Municipality agrees that [the tennis club] be recorded in the land register as the user of the tennis courts. ”

COMPLAINTS

52 . The applicants complained under Article 6 § 1 of the Convention that the second set of civil proceedings for compensation (see paragraphs 19-24 above) and the civil proceedings for repossession (see paragraphs 25 ‑ 30 above) had been unfair as well as that their outcome had been unfavourable .

53 . The applicants also complained under Article 1 of Protocol No. 1 to the Convention that they had been deprived of their property.

THE LAW

A. Alleged violations of Article 6 § 1 of the Convention on account of the unfavourable outcome of the proceedings

54 . The applicants complained that the decisions of the higher courts in the second set of civil proceedings for compensation (see paragraphs 19-24 above) and those in the civil proceedings for repossession (see paragraphs 25-30 above) had been arbi trary and in contrast with the previous decisions of the same courts in the first set of civil proceedings for compensation (see paragraphs 15-18 above) . They relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

55 . The Government disputed the admissibility of these complaints by arguing that they were manifestly ill-founded.

1. The arguments of the parties

(a) The Government

56 . The Government submitted that the domestic courts in the proceedings complained of gave detailed reasons for their decisions which were based on the correct application of the relevant domestic law and could by no means be considered arbitrary. The Government in their observations did not specifically address the applicants ’ complaint that those decisions were contrary to the decisions adopted in the first set of civil proceedings for compensation.

(b) The applicants

57 . The applicants submitted that the two sets of proceedings complained of were inextricably linked with the first set of civil proceedings for compensation. That was so because in all three sets of proceedings the courts had examined the question of whether there was a legal basis for ordering payment of compensation for the unauthoris ed use of the land in question or for ordering repossession. That legal basis was identical in all three sets of proceedings and was thus crucial for reaching a decision in each of those proceedings. The applicants emphasised that in the first set of civil proceedings for compensation the domestic courts had found that the defendant, namely the tennis club, was in possession of the disputed land without a valid legal title. In the applicants ’ view that finding had the binding force of res judicata . Despite that, in the second set of civil proceedings for compensation and in those for repossession the same domestic courts had re-examined that finding and held that the tennis club had a valid legal title for using the land at issue. In so doing those courts had not explained why they had not accepted, and why they had departed from, their previous findings. In the applicants ’ view, that situation had undermined the principle of legal certainty inherent in Article 6 § 1 of the Convention.

58. The applicants then went on to explain in detail why they considered the domestic courts ’ decisions in the two sets of proceedings complained of arbitrary. In particular, in their view those decisions were based on the incorrect finding that their right to use the land in question had passed to the tennis club by the Self-Management Agreement concluded on 16 March 1981 between that club and the Split Municipality (see paragraphs 10 and 51 above). That finding had been erroneous, because the decision on dispossession required by section 38 of the Nationalisation Act of 1958 (see paragraph 42 above) had never been adopted, which further meant that the Split Municipality could not under the agreement in question have transferred to the tennis club a right it did not have.

2. The Court ’ s assessment

59. T he Court reiterates that t he possibility of conflicting court decisions , even within the same court , is an inherent trait of any judicial system . Even when the conflicting decisions stem from the court of last resort in the matter , that in itself cannot be considered contrary to the Convention as long as the domestic law provides for machinery for overcoming these inconsistencies (see, notably, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05 , § § 51 and 53 , 20 October 2011 ) bearing in mind that the process of unifying and ensuring the consistency of the case-law may require a certain amount of time (see Albu and Others v. Romania , nos. 34796/09 and 63 other applications , § § 39 and 42 , 10 May 2012 ). The Court considers that this reasoning applies mutatis mutandis in the present instance where various domestic courts reached conflicting decisions on the same legal issue in three separate sets of civil proceedings between the same parties .

60. The Court notes that the judgments of the Split County Court of 1 September 1989 and the Supreme Court of 3 January 1997 (see paragraphs 17-18 above) in the above-described first set of civil proceedings are indeed in contrast with the judgments of the same courts in the second set of civil proceedings for compensation of 20 November 2008 and 27 March 2012 (see paragraphs 21-22 above) respectively, and with the judgment of the Split County Court adopted on 17 October 2005 (see paragraph 27 above) in the civil proceedings for repossession. In the Court ’ s view these divergences cannot be explained by factual differences, but only by a differing application of the relevant domestic law to substantially similar facts. Specifically, those courts disagreed over the issue of whether the applicants had the right to use the land in question, and if they did, when (if ever) they had lost it.

61. In particular, the main cause for divergences between the first set of civil proceedings for compensation on the one hand and the second set of civil proceedings for compensation and those for repossession on the other, lies in different approaches to the issue of whether the applicants had the right to use the disputed land in the period between the entry into force of the 1958 Nationalisation Act (see paragraphs 6 and 42 above) on 26 December 1958 and the coming into force of the 1995 Amendments to the Sports Act on 12 October 1995 (see paragraphs 11 and 43 above). Those courts which ruled in favour of the applicants held that they had that right and that it was ex lege converted into their ownership of the land at issue by the entry into force of the Property Act on 1 January 2007 (see paragraphs 16-18, 20 and 26 above). On the other hand, the courts which ruled against the applicants held that the right to use the land must in that period have rested first with the Split Municipality and then, by the Self-Management Agreement of 16 March 1981, with the tennis club as a sports association. Given that by the entry into force of the 1995 Amendments to the Sports Act the ownership of all sports facilities which sports associations had the right to use passed into the ownership of the local authorities on whose territory those facilities were located, those courts held that the Split Township became the owner of the land at issue ( see paragraphs 21-22, 27 and 29 ).

62. Irrespective of those divergences, and contrary to the applicants ’ contention (see paragraph 58 above), the Court considers that the domestic courts ’ decisions in the two sets of proceedings complained of are satisfactorily reasoned and cannot be qualified as arbitrary. It follows that for the Court the only issue to be examined in the present case is whether the Croatian legal system provides for a mechanism capable of ensuring consistency .

63. In this connection the Court first notes that the issue of whether the applicants had the right to use the disputed land constituted a preliminary question, within the meaning of section 12 of the Civil Procedure Act (see paragraph 45 above), for deciding the two main issues in the three civil proceedings in question, that is, whether the applicants could seek compensation for the use of that land, and whether they could seek repossession of it.

64. The Court further notes in this respect that under section 12 of the Civil Procedure Act the courts are not bound by their findings on a preliminary question, as their decision on such a question has legal effect only in the civil proceedings in which that question was settled (see paragraph 45-49 above) . However, once that question has been decided by a final judgment in the civil proceedings in which it constituted the main issue, the courts are bound by that finding in any other proceedings between the same parties.

65 . In this regard the Court notes that the applicants could have, either in the second civil proceedings for compensation or in the civil proceedings for repossession, turned the preliminary question of the existence or non-existence of their right to use into the main issue by bringing an “incidental declaratory action” ( incidentalna tužba za utvrđenje ) under section 187(3) of the Civil Procedure Act (see paragraphs 45 and 50 above). Alternatively, that preliminary question could have been resolved as the main issue in separate civil proceedings had the applicants brought an independent action for declaratory judgment to that effect, on the basis of paragraph 1 of the same section. If they had brought either of those two actions, the courts would have had to decide on their right to use the disputed land as the main issue. Such a decision would have had a binding effect, not only in those proceedings but in any other civil proceedings between them and the tennis club in which that questio n was, is or would be relevant.

66 . Furthermore, if that decision had been favourable for the applicants, it would have also given them a chance to seek the reopening of any civil proceedings between them and the tennis club that would in the meantime have ended unfavourably for them because the same question was decided differently. In particular, under section 421(1) of the Civil Procedure Act the party in whose favour a certain question was resolved as the main issue may ask for the reopening of all civil proceedings in which the same question was decided differently and to the detriment of that party as a preliminary question ( see paragraph 45 above ). In other words, if the issue of the applicants ’ right to use the disputed land had been resolved in their favour in the civil proceedings in which it would have been the main issue they could have asked for reopening of the second civil proceedings for compensation or the civil proceedings for repossession (depending on the fact in which of those proceedings they would have brought an “incidental declaratory action”) or of both (if they would have brought an independent declaratory action). However, the applicants have never brought either of the two declaratory actions.

69. Lastly, the Court notes that the applicants can no longer bring “incidental declaratory action” under section 187(3) of the Civil Procedure Act (see paragraphs 45, 50 and 65 above), or seek the reopening of either the second civil proceedings for compensation or those for repossession because the statutory time-limits for doing so have expired. However, they can still bring an independent declaratory action under paragraph 1 of the same section and thereby institute civil proceedings in which the existence of their right to use the land in question would be examined as the main issue and with the binding effect, thus preventing possible future divergent decisions on that issue.

70. It follows that these complaints are inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

B. Other alleged violations of Article 6 § 1 of the Convention

71 . In their observations in reply to those of the Government, on 21 December 2012 the applicants for the first time complained that the civil proceedings for repossession (see paragraphs 25-30 above) had been unfair in that : (a) the second-instance court lacked impartiality, and (b) the principle of adversarial hearing had been breached in those proceedings. The applicants explained that on 21 September 2009, almost four years after the adoption of the Split County Court ’ s judgment of 17 October 2005 (see paragraph 27 above), they had discovered that certain pieces of evidence had been added to the case file without their knowledge by a person working for the Split Township. This not only constituted a breach of the adversarial principle but also indicated that the judges who had participated in the adoption of that judgment had been subject to outside pressures and thus could not be considered impartial. This had been further illustrated by the fact that, after the applicants ’ advocate had brought criminal charges against those judges, criminal proceedings were instituted against him for the criminal offence of false prosecution.

72 . The Court notes the proceedings complained of ended on 9 October 2008 (see paragraph 30 above) whereas the applicants raised these complaints for the first time in their observations in reply to those of the Government on 21 December 2012, more than six months later. It follows that these complaints are inadmissible under Article 35 § 1 of the Convention for non-compliance with the six-month rule and must be rejected pursuant to Article 35 § 4 thereof.

C. Alleged violation of Article 1 of Protocol No. 1 to the Convention

73 . The applicants complained that the prolonged occupation of their land by the tennis club endorsed by the local authorities had amounted to de facto expropriation , and that the domestic courts ’ decisions dismissing their second action for compensation and their action for repossession had been arbitrary. They relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“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.”

74 . The Government disputed the admissibility of this complaint on four grounds. They argued that this complaint was premature, that the applicants could not be considered victims of the alleged violation, that they had failed to exhaust domestic remedies , and that this complaint was in any event manifestly ill-founded.

75. The Court does not find it necessary to examine the Government ’ s objections, because this complaint is in any event inadmissible for the following reasons.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Isabelle Berro-Lefèvre Registrar President