Information Note on the Court’s case-law 201

November 2016

Jakeljić v. Croatia (referral) - 22768/12

Judgment 28.6.2016 [Section II]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Possessions

Claims to ownership of socially owned property through adverse possession: case referred to the Grand Chamber

[This summary also covers the judgment in the case of Radomilja and Others v. Croatia , 37685/10, 28 June 2016 ]

Both cases concerned claims to the acquisition of plots of land through adverse possession.

The legislation of the former Yugoslavia (in particular section 29 of the 1980 Basic Property Act) prohibited the acquisition of ownership of socially owned property by adverse possession. That provision was repealed by the Croatian Parliament in 1991 and section 388(4) of the Ownership and Other Rights In Rem Act 1996, which entered into force on 1 January 1997, provided that the period prior to 8 October 1991 was to be included in calculating the period for acquiring ownership by adverse possession of socially owned immovable property. However, in a decision of 17 November 1999 the Constitutional Court invalidated section 388(4) of the 1996 Act on the grounds that its retroactive effect and the adverse consequences it produced on the rights of third parties was unconstitutional.

In the applicants’ cases, the domestic courts refused to make a declaration that the applicants had through adverse possession acquired title to land registered in the name of local authorities. They found that the applicants’ predecessors-in-title had only been in possession of the land (continuously and in good faith) since 1912 and that the running of the statutory 40-year time-limit had been interrupted in April 1941, when the legislation of the former Yugoslavia first prohibited the acquisition of ownership of socially owned property by adverse possession, and had only started to run again after October 1991, when that provision was repealed by Parliament.

Relying on Article 1 of Protocol No. 1, the applicants complain that, in dismissing their claims, the domestic courts had misapplied the relevant domestic law, as the statutory time-limit for acquiring ownership by adverse possession had been 20, not 40, years.

In its judgments of 28 June 2016, a Chamber of the Court held by six votes to one in both cases that there had been a violation of Article 1 of Protocol No. 1. As regards the applicability of that provision, it found that the fact that the applicants had not brought their actions in the domestic courts until 2002, almost three years after the Constitutional Court had invalidated section 388(4) of the 1996 Act (the provision which had allowed the period before October 1991 to be taken into account in the calculation of the period of adverse possession), was irrelevant for the purpose of establishing whether their claims to be declared the owner of property by adverse possession could qualify as an “asset”. In both cases, the applicants’ predecessors-in-title had been in possession since at least 1912 and, by virtue of section 388(4), had thus ex lege became the owners of the plots of land either on the date the 1996 Act had entered into force (1 January 1997) or, as regards one plot of land, on the date of its acquisition (20 July 1999). At the time of the alleged interference, therefore, the applicants’ claim to ownership of the plots of land had a sufficient basis in national law to qualify as an “asset” protected by Article 1 of Protocol No. 1.

As to the merits, the Court found no reason to depart from its conclusions in the similar case of Trgo v. Croatia ( 35298/04 , § 17, 11 June 2009), in which it had found a violation of Article 1 of the Protocol No. 1. It noted, in particular, that (i) there was no indication, that anyone apart from the local authorities themselves had acquired or claimed any rights over the plots of land in question, so no third-party rights had been affected; and (ii) the applicants had reasonably relied on the legislation that had later been invalidated and should not – in the absence of any prejudice to the rights of others – have to bear the consequences of the State’s own mistake in enacting unconstitutional legislation.

On 28 November 2016 the cases were referred to the Grand Chamber at the Government’s request.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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