FIRST SECTION

DECISION

Application no. 59030/19 Ivan TOPALUŠIĆ and Others against Croatia

The European Court of Human Rights (First Section), sitting on 7 December 2021 as a Chamber composed of:

Péter Paczolay, President, Ksenija Turković, Krzysztof Wojtyczek, Alena Poláčková, Gilberto Felici, Erik Wennerström, Ioannis Ktistakis, judges, and Renata Degener, Section Registrar,

Having regard to the above application lodged on 7 November 2019,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having regard to the observations submitted by the Croatian Government (“the Government”) and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix. They were all represented before the Court by Mr N. Vaić, a lawyer practising in Rijeka.

2. The Government were represented by their Agent, Ms Š. Stažnik.

The circumstances of the case

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

4 . The applicants are the owners of two plots of land near the town of Kastav, on which they built houses. As there was no access to those plots from the main road, the second and third applicants and their legal predecessor M.T. bought a nearby plot, on which they built an access road to their houses in 1996.

5. In 2006 a residential building with eight flats was built on a plot north of those belonging to the applicants. All the flats in the building were sold by early 2008. Since then, the private access road built by the applicants has been used by the residents of that building.

6. On 28 July 2011 the Roads Act entered into force. It provided that all unclassified roads were to become public property ( javno dobro ) owned by local government units and that they had to be recorded as such in the land register (see paragraph 16 below).

7 . On 30 March 2017 the relevant cadastral authorities ( Državna geodetska uprava, Područni ured za Katastar Rijeka ), after conducting a geodetic survey, instituted land registry proceedings before the Land Registry Division of the Rijeka Municipal Court ( Zemljišno-knjižni odjel Općinskog suda u Rijeci ) with a view to recording the road built by the applicants (see paragraph 4 above) as an unclassified road.

8 . By a decision of 5 September 2017, a land registry clerk of the Municipal Court merged the plot on which the applicants had built the access road with three neighbouring plots owned by the Kastav Township into a newly formed single plot, and recorded that new plot as public land owned by the Kastav Township.

9 . On 18 September 2017 the applicants objected to the Municipal Court’s decision, arguing that it was in breach of their ownership rights. They relied on, inter alia , Article 1 of Protocol No. 1 to the Convention. In particular, they submitted that the Kastav Township should have instituted expropriation proceedings before making the above-mentioned change (see paragraph 8 above) in the land register, as such a change should not have been carried out without their consent. They also stated that they could agree to the expropriation of the land in principle, but only if they were fairly compensated.

10 . By a decision of 16 February 2018 a judge of the Municipal Court dismissed the applicants’ objection and upheld the decision of 5 September 2017 (see paragraphs 8-9 above). The judge held that the Roads Act prescribed the proceedings for recording unclassified roads in the land register and that the land registry clerk had correctly applied the relevant provisions.

11 . On 19 March 2018 the applicants appealed against that decision, reiterating in substance the arguments put forward in their objection of 18 September 2017 (see paragraph 8 above). They also submitted that the geodetic survey on the basis of which the cadastral authorities had instituted the land registry proceedings (see paragraph 7 above) was deficient and that it did not correspond to the actual state of the land in question.

12. By a decision of 24 September 2018, the Velika Gorica County Court ( Županijski sud u Velikoj Gorici ) dismissed the applicants’ appeal and upheld the Municipal Court’s decision of 16 February 2018 (see paragraph 10 above).

13 . The County Court held that land registry proceedings were strictly formal proceedings in which the courts only examined whether the statutory requirements for the registration of property rights had been met. Therefore, in the proceedings in question, the applicants could not argue that the geodetic survey was deficient and that it did not reflect the actual state of the land in question. Such an argument should have been raised in the administrative proceedings before the cadastral authorities or by instituting civil proceedings under the general rules of civil law. The court further held that unclassified roads had become the property of local governments ex lege and that the contested decision of 5 September 2017 (see paragraph 8 above) thus had not had any effect on the creation or termination of property rights. Consequently, the applicants’ property rights could not have been breached by that decision.

14. On 22 December 2018 the applicants lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ) against the County Court’s decision. They repeated the arguments that they had raised in their objection and in the appeal (see paragraphs 9 and 11 above) and again explicitly relied on Article 1 of Protocol No. 1 to the Convention. They also suggested that the Constitutional Court should institute abstract constitutional review proceedings to examine the compatibility of the relevant provisions of the Roads Act with the Croatian Constitution.

15 . By a decision of 8 May 2019, the Constitutional Court declared the applicants’ constitutional complaint inadmissible, holding that the case did not raise a constitutional issue. The court notified the applicants’ representative of its decision on 13 May 2019.

RELEVANT LEGAL FRAMEWORK

16 . The relevant provisions of the Roads Act ( Zakon o cestama , Official Gazette no. 84/11 with subsequent amendments), which has been in force since 28 July 2011, read as follows:

VIII. Unclassified roads

Definition of unclassified roads

Section 98(1)

“Unclassified roads are roads used for vehicular traffic which everyone can use freely ..., and which are not classified as public roads within the meaning of this Act, in particular:

...

- access roads to residential, commercial and other buildings,

...”

Legal status of an unclassified road Section 101(1)

“An unclassified road is public [property] in general use owned by the local government unit in whose territory the road is located.”

Expropriation for the construction of an unclassified road

Section 105

“(1) The construction, reconstruction and maintenance of an unclassified road shall be in the interest of the Republic of Croatia.

(2) Unless otherwise provided by this Act, expropriation legislation shall apply to proceedings for the expropriation of immovable property for the purpose of construction, reconstruction or maintenance of unclassified roads.

...”

Registration of unclassified roads in the land register

Section 131

“(1) Roads which, on the date of entry into force of this Act, are used for vehicular traffic on any grounds, which are accessible to a large number of users and which are not classified as public roads within the meaning of this Act, shall become unclassified roads.

...

(3) Unclassified roads as referred to in paragraph 1 of this section which have not been recorded in the land register or whose actual state has not been recorded in that register shall be recorded in the land register ex proprio motu on the basis of a registration form which, after the unclassified road or its actual state is recorded in the cadastre, shall be submitted to the land registry court by the cadastral authorities of their own motion.

(4) Unclassified roads constructed before the date of the entry into force of [this Act] which have not been recorded in the cadastre or whose actual state has not been recorded shall be recorded in the cadastre on the basis of a geodetic survey ... obtained and submitted to the relevant cadastral authority by a local government unit ...

...

(6) Unclassified roads as referred to in paragraph 1 of this section shall be recorded in the land register as public [property] in general use and as [being under the] inalienable ownership of a local government unit ... regardless of the existing entries in the land register.

(7) Immovable property which is considered an unclassified road under this Act and which was in use as an unclassified or public road prior to 1 January 1997 shall be public [property] in general use under the inalienable ownership of the local government unit in whose territory the road is located.”

Section 133(1)

“Unclassified roads as referred to in sections 131(1) and 132(1) of this Act shall be recorded in the cadastre and in the land register as unclassified roads – public [property] in general use – and as under the inalienable ownership of the local government unit in whose territory they are located, regardless of the existing registration of ownership and/or other rights in rem of a third party.”

(a) Decision of 7 February 2017

17. In a decision (no. U-I-6326/2011) of 7 February 2017, the Constitutional Court refused eight petitions to institute proceedings for a review of the constitutionality of sections 131-133 of the Roads Act.

18. The court first explained that under the relevant domestic law in force before 2009, roads could not be owned, even by the State. As a result of the legislative changes in 2009, the State had become the owner of all public roads in the territory of Croatia by the operation of law.

19. The Constitutional Court further held that the Roads Act had merely reclassified the existing public roads according to their technical characteristics into (a) public roads, which were to remain under State ownership, and (b) unclassified roads, which were to be transferred from State ownership to the ownership of local government units. Thus, all public and unclassified roads were those which had passed into State ownership before the entry into force of the Roads Act and in respect of which “expropriation proceedings were (or should have been) carried out and compensation paid”.

20. However, not all such roads had been recorded in the land register as being under State ownership. Sections 131 and 133 had thus merely governed the registration in the name of local government units of the unclassified roads previously owned by the State, regardless of whether the previous State ownership of such roads had been recorded in the land register.

21. In the Constitutional Court’s view, former owners of land with unclassified roads were not prevented from protecting their rights, as they could institute civil proceedings under the general rules of civil law and seek compensation for the land taken from them, if such compensation had not already been paid. In that respect the Constitutional Court specifically referred to section 33 of the Property Act (see paragraph 23 below).

(b) Decision of 19 March 2019

22 . In a decision (no. U-I-774/2019) of 19 March 2019, the Constitutional Court refused a petition to institute proceedings for a review of the constitutionality of sections 131-133 of the Roads Act and emphasised that, although the misapplication of any legislation was always possible, that in itself was not sufficient grounds to find the contested legislation unconstitutional. Instead, legal remedies were available against decisions in which the law had been wrongly applied. The Constitutional Court in that case specifically drew the petitioner’s attention to section 168 of the Property Act (see paragraph 23 below).

23 . The relevant provisions of the Ownership and Other Rights In Rem Act ( Zakon o vlasništvu i drugim stvarnim pravima , Official Gazette no. 91/96 with subsequent amendments – “the Property Act”), which has been in force since 1 January 1997, provide as follows:

Compensation

Section 33

“(1) Ownership may, in the interest of the Republic of Croatia and in accordance with the law, be taken away (complete expropriation) or restricted by establishing a right over the owner’s property in favour of another person (partial expropriation), in which case the owner shall be entitled to compensation in accordance with the expropriation legislation.

...

(3) If the owners are, in respect of an item of their property, subject to restrictions for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health, which require from them, but not from all other owners of such property, a heavier sacrifice, or otherwise place them in a position similar to the one in which they would have been had the expropriation been carried out, they shall be entitled to compensation as for expropriation.”

Protection from breaches resulting from land register entries

Section 168

“If the right of ownership is breached as a result of an invalid entry in the land register, the owners shall be entitled to protect themselves by [resorting to] remedies ... provided for by the rules of land-register law.”

24 . Croatian law provides for a special civil action, a so-called “strike-out action” ( brisovna tužba ), which aims to protect property owners and holders of other rights recordable in the land register from interferences with their rights as a result of wrongful entries in that register. Section 129(1) of the 1996 Land Register Act ( Zakon o zemljišnim knjigama , Official Gazette no. 91/96 with further amendments), which was in force between 1 January 1997 and 5 July 2019, provided that any holder of a land register right which had been breached as a result of an entry in favour of another person could bring a civil action with a view to having that entry struck out and the previous land register status restored. The same provision is contained in section 150(1) of the 2019 Land Register Act ( Zakon o zemljišnim knjigama , Official Gazette no. 63/19), which has been in force since 6 July 2019.

COMPLAINTS

25. The applicants complained under Article 1 of Protocol No. 1 to the Convention that they had been deprived of their property without compensation.

26. They also complained under Article 6 § 1 of the Convention that they had not had access to a court to challenge the registration of ownership in the name of the local government in the land register.

THE LAW

27. The applicants complained that they had been deprived of their land and that they had not received any compensation. 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.”

(a) The Government

28. The Government disputed the admissibility of this complaint, arguing that the applicants had not exhausted domestic remedies. In the alternative, the Government submitted that the applicants had not complied with the six ‑ month rule.

29 . In the context of their objection of non-exhaustion of domestic remedies, the Government submitted in particular that disputes about property rights could not be resolved in land registry proceedings, which were, by their legal nature, non-contentious and served only to record property rights (see paragraph 13 above). Therefore, any complaints concerning breaches of ownership rights could not be examined in those proceedings. Instead, the applicants had had other remedies available to them in which their grievances could have been properly addressed and examined.

30 . The Government pointed out specifically that, since the applicants had submitted before the domestic courts that, if they had been fairly compensated, they might have agreed to the expropriation of the land in question (see paragraph 9 above), the applicants should have instituted regular civil proceedings under section 33 of the Property Act (see paragraph 23 above). In those proceedings, the applicants could have sought compensation as if their land had been expropriated.

(b) The applicants

31 . The applicants did not comment on the Government’s objections as to the admissibility of their complaint.

32 . The Court first observes that the applicants indeed stated in the domestic proceedings that they might have agreed to the expropriation of their land if they had been fairly compensated (see paragraph 9 above). It further notes that the remedy provided for in section 33 of the Property Act (see paragraph 23 above) seems to have been devised precisely to address situations such as the one in which the applicants found themselves in the present case. The Government therefore argued that the applicants should have brought a civil action under that provision (see paragraph 30 above). The applicants, for their part, did not argue that this remedy had been unavailable to them or that it had been ineffective (see paragraph 31 above).

33. That being so, and having regard to its case-law (see, for example, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 77, 25 March 2014), the Court sees no reason that could exempt the applicants from their obligation under Article 35 § 1 of the Convention to avail themselves of that remedy. The Government’s objection regarding the exhaustion of domestic remedies must therefore be upheld.

34 . It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and that it must be rejected pursuant to Article 35 § 4.

35. In view of this finding the Court does not find it necessary to examine the Government’s remaining objection as to non-compliance with the six ‑ month term (see paragraph 29 above).

36. The applicants also complained of the lack of access to a court in that they had been unable to effectively challenge the transfer of ownership of their property to the local government. 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 ... hearing ... by [a] ... tribunal ...”

37. The Government disputed the admissibility of this complaint, arguing that Article 6 § 1 of the Convention was inapplicable to the land registry proceedings complained of (see paragraphs 7-15 above). In the alternative, they submitted that this complaint was in any event manifestly ill-founded for the reasons stated above (see paragraph 30 above).

38. The Court does not find it necessary to reproduce the parties’ arguments in detail, as this complaint is in any event inadmissible for the reasons set out below.

39. The Court first notes that, from its above findings under Article 1 of Protocol No. 1 (see paragraphs 32-34 above), it follows that the applicants did have access to a court, as they had at their disposal a civil action whereby they could have obtained compensation for the taking of their property as if it had been expropriated.

40. The Court further notes that, if the applicants considered that the Roads Act was not applicable to the facts of their case, they could have instituted regular civil proceedings under section 129(1) of the 1996 Land Register Act (see paragraph 24 above). By pointing to section 168 of the Property Act, the Constitutional Court in its decision of 19 March 2019 indirectly referred to that avenue of redress (see paragraphs 22-23 above).

41. It would appear that in those proceedings the civil courts would have been able to take and assess evidence, establish the facts and examine whether the road built by the applicants indeed fell under the definition of an unclassified road provided in section 98(1) of the Roads Act (see paragraph 16 above), and that they could have reversed the changes resulting from the Municipal Court’s decision of 5 September 2017 (see paragraph 8 above) if they were to find that the civil action was well ‑ founded.

42. It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and that it must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

{signure_p_1}

Renata Degener Péter Paczolay Registrar President

Appendix

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Ivan TOPALUŠIĆ

1978Croatian

Kastav

2.Giza MATIĆ

1952Croatian

Rijeka

3.Mara MATKOVIĆ

1949Croatian

Rijeka