PARTLY DISSENTING OPINION OF JUDGE LEMMENS

1. To my regret, I cannot agree with the conclusions of the majority in this case.

I am afraid that the decisions to declare the application admissible and well-founded (except in so far as it was lodged in the name of the late Mr Gašpar Perasović ) are based on an overly far-reaching recharacterisation of the complaint. [1]

2. In their application to the Court the applicants complained that the Split County Court had deprived them of property that they allegedly had acquired by adverse possession.

The County Court had found that property could be acquired by continuous possession over forty years, and had further held that only the years of possession before 6 April 1941 and after 8 October 1991 could be taken into account, but not the years between those dates. Turning to the facts, it determined that the applicants and their predecessors had been in possession of the plots of land, continuously and in good faith, since 1912 only, and therefore had not reached the required forty years by 6 April 1941. As a result, the plots could not be registered in the applicants ’ name, but remained registered in the name of th e Split Township (see paragraph 13 of the judgment).

The applicants complained about this decision on two grounds. First, they argued that the required time of adverse possession was not forty years, but only twenty years, and therefore they and their predecessors had fulfilled the requirement by 6 April 1941 (see paragraphs 46 and 57 of the judgment). Second, and alternatively, they argued that the County Court had erred in finding that they and their predecessors had not had possession of the plots for forty years by 6 April 1941 (see paragraphs 47 and 57 of the judgment). In sum, the applicants argued that the County Court had been wrong in considering that the vendors ’ predecessors had not already met the forty-year requirement by 6 April 1941 . They explicitly stated that they did not argue that the period between 6 April 1941 and 8 October 1991 should have been taken into account, and that they did not have any expectations that the said period would be taken into account (see paragraph 48 of the judgment).

3. The complaint examined by the majority seems to be a different one.

The majority accept the finding of the County Court that the required time of adverse possession is forty years (see paragraph 53 of the judgment), thus (implicitly) rejecting the applicants ’ first argument. In order to examine whether that number of years was reached, they base themselves on the transitional provision of section 388(4) of the 1996 Property Act – a provision which was not relied upon by the applicants in the proceedings before the domestic courts, nor in their application before our Court. By virtue of that provision, in force between 1 January 1997 and 20 December 1999 (that is 2.5 years before the applicants filed their claim for the recognition of their right of ownership), the period between 6 April 1941 and 8 October 1991 could also be taken into account for the calculation of the number of years of adverse possession (see paragraph 27 of the judgment). On that basis the majority hold that the applicants and their predecessors had acquired ownership in 1952 (see paragraph 53 of the judgment). [2] The majority thus substitute their own opinion on a crucial aspect of the dispute for that of the County Court. It seems to me that such a stark departure from the final judgment in the domestic proceedings is not very respectful of the principle of subsidiarity. But this is not my main point.

After having found that the applicants could claim the protection of Article 1 of Protocol No. 1, the majority examine the merits of the complaint. [3] That complaint is (implicitly) recharacterised as follows: by not applying section 388(4) of the 1996 Property Act, because it was invalidated on 17 November 1999 by the Constitutional Court with an ex nunc effect from 14 December 1999, the domestic courts violated the applicants ’ right to the peaceful enjoyment of the plots of land (see paragraphs 61-62 of the judgment). In sum, the majority characterise the complaint as being directed at the domestic courts ’ acceptance of the abrogation by the Constitutional Court of the (short-lived) possibility to take into account the years of possession between 6 April 1941 and 8 October 1991 .

However, as is pointed out by the Government and even acknowledged by the majority (see paragraph 48 of the judgment), the applicants explicitly did not claim that the period between 6 April 1941 and 8 October 1991 should be taken into account for the calculation of the number of years of adverse possession.

4. In order to justify the recharacterisation of the complaint, the majority refer to the case-law of the Court according to which “a complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on” (see paragraph 54 of the judgment, referring to Guerra and Others v. Italy , 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I).

That formula gives rise to problems of interpretation. What exactly is a “complaint” and to what extent is the recharacterisation of a complaint possible? According to the formula, a complaint is characterised “by the facts alleged in it” (in French: “par les faits qu ’ il (le grief) dénonce ”). My understanding is that a complaint contains an allegation, and that it is characterised by the facts of the allegation. Furthermore, the Court can, in my opinion, recharacterise the facts, or better: the complaint, by considering that the complaint is to be examined under another Article or paragraph than the one relied upon by the applicant. By contrast, however, it seems to me that the Court cannot “create” a new complaint not invoked by the applicant (see Powell and Rayner v. the United Kingdom , 21 February 1990, § 29, Series A no. 172).

It follows logically from the foregoing that, in order for an original complaint and a recharacterised complaint to be the same, it is not sufficient that both complaints are based on the same Article (Article 1 of Protocol No. 1) or that they both relate to the same measure (denial of acquisition of ownership by adverse possession). The allegations should also be the same. In my opinion, this is not the case here.

5. The majority declare the recharacterised complaint admissible and, following the Trgo precedent ( Trgo v. Croatia , no. 35298/04, 11 June 2009), conclude that there has been a violation of Article 1 of Protocol No. 1.

For my part, I have a problem with the admissibility of the complaint as invoked by the applicants.

In so far as the applicants argued that the number of years of possession required for acquiring ownership was not forty years, but twenty, I would consider that the applicants thus criticised the interpretation and application of domestic law by the domestic courts.

In so far as the applicants argued that the County Court had erroneously held that they and their predecessors were not in possession of the land for forty years on 6 April 1941, I would consider that the applicants were criticising the assessment of facts by the domestic courts.

Seeing no arbitrariness or manifest unreasonableness in either the assessment of the facts or the interpretation and application of domestic law, I would conclude that the complaint is manifestly ill-founded.

6. The majority clearly want to apply the Trgo reasoning in the present case. Even if the facts of the case could lend themselves to such an application (which seems questionable to me, given that the applicants ’ claim was lodged with and examined by the domestic courts while there was a provision in force that unambiguously stated –and continues to state- that the period before 8 October 1991 should not be taken into account; see paragraph 28 of the judgment), I find that the majority examine a complaint that has not been invoked before the Court and which the Court cannot invoke of its own motion, especially not where the applicants themselves have stated that the Court ’ s findings in the Trgo case were not relevant in the present case (see paragraph 48 of the judgment).

The fact that an applicant may be the victim of a violation of human rights cannot be a justification for extending the Court ’ s jurisdiction beyond the limits drawn by the applicant himself or herself in his or her application or submissions. To hold differently would, in my opinion, take the Court out of its judicial role.

APPENDIX

[1] . This is not the first time that the re characteris ation of a complaint by a majority is criticised by a dissenting judge. For a recent instance, see the separate opinion of Judge Keller in Aldeguer Tomás v. Spain , no. 35214/09 , 14 June 2016 (paragraph 3 of the opinion).

[2] . The majority state that “at the time of the alleged interference” , which is – according to them – the date of the judgment of the County Court (17 May 2007), “the applicants’ claim to be declared the owners of the five plots of land had a sufficient basis in national law to qualify as an ‘asset’ protected by Article 1 of Protocol No. 1” (see paragraph 53 of the judgment). It seems to me that in fact the applicants do not complain that a “claim” was extinguished, but rather that the courts refused to recognise that they had a title to the plots of land which, according to them, were part of their existing “possessions” (within the meaning of Article 1 of Protocol No. 1). I will, however, not comment on this further.

[3] . I leave open the question whether domest ic remedies have been exhausted. T he Government did not raise an objection to that effect .