JOINT DISSENTING OPINION OF JUDGES POLÁČKOVÁ AND SABATO

1. We voted against the admissibility of the application and, in any event, for a finding of no violation of Article 1 of Protocol No. 1 to the Convention. While we fully agree with the conclusion of the majority that the proprietary interests relied on by the applicant were in the nature of a claim and cannot be characterised as an “existing possession” within the meaning of the Court’s case-law (see paragraph 87 of the judgment), we respectfully disagree with the conclusion that the applicant’s claim to be declared the owner of the property in dispute had a sufficient basis in national law (see paragraph 121 of the judgment).

2. In order to reach this conclusion the majority referred to the Court´s case-law concerning the concept of a “legitimate expectation” of obtaining the effective enjoyment of a property right. Such expectations will arise only in respect of claims for which there is a sufficient basis in national law – that is, in respect of claims which are sufficiently established as to be enforceable (see paragraph 86 of the judgment). According to the majority, the applicant’s claim, given the evidence taken domestically, had a sufficient basis in national law to attract the guarantees of Article 1 of Protocol No. 1 of the Convention (see paragraph 121 of the judgment).

3. In our view, with all due respect, the stance of the majority does not reflect the concept of “legitimate expectation” as developed in the Court´s well-established case-law.

4. In order to explain our dissent, we need not take a position on those corollaries of the concept of “legitimate expectation” with reference to which legal literature [4] has criticised the Court for alleged inconsistencies and lack of clarity [5] . Indeed, it will suffice for us to refer to two features of the above notion that appear to us to be unquestionable.

5. Firstly, under the Court’s case-law “where the applicants’ claim ... failed because they had not met one of the essential statutory conditions, ... the claim was not sufficiently established”, there being “a difference between a mere hope ... and a ‘legitimate expectation’, which must ... be based on a legal provision or a legal act such as a judicial decision”; moreover, “...no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts” (see, for example, Kopecký v. Slovakia , no. 44912/98, §§ 49-50, 28 September 2004, and Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 142, 20 March 2018, where “settled” domestic case-law is indicated as being a sufficient basis).

6. We consider that, in the present case, since there was a “dispute as to the correct interpretation and application of domestic law” and there was no clearly applicable “legal provision or ... legal act such as a judicial decision”, no legitimate expectation accordingly existed.

7. The majority themselves indeed clarify that “... the question of whether the possessors satisfied the statutory conditions for acquiring ownership by adverse possession must be determined in proceedings before civil courts, because possessors need a declaratory judgment acknowledging their ownership in order to be able to effectively enjoy their property” (see paragraph 87). It follows that, in order to prove a currently enforceable claim that was sufficiently established, a successful applicant in a similar situation should either be the registered owner of the plot of land or a successive proprietor, registration being a “legal act” within the above meaning (which was the case in J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 62, 30 August 2007, and, more recently, in Liamberi and Others v. Greece , no. 18312/12, § 59, 8 October 2020), or he or she should have obtained a domestic declaratory judgment, this being a “judicial decision”. As in the present case all the requirements for a “legitimate expectation” are lacking (see paragraph 5 of this opinion), the applicant had a “mere hope” to be recognised as owner of the land in question.

8. The applicant showed some awareness of such a need, as he lodged a counterclaim asking the domestic courts to issue a declaratory judgment establishing that he was the owner of the disputed areas of land which, he asserted, he had acquired by adverse possession (see paragraph 12 of the judgment). But this claim was definitively dismissed by the domestic courts in the decision of the Supreme Court of 16 April 2019 and subsequently, in a decision of 25 September 2019, the Constitutional Court declared the applicant’s constitutional complaint inadmissible.

9. Secondly, and more importantly, in order to assess “whether there was a sufficient basis in domestic law” for a legitimate expectation, the Court must consider the same law “as [that] interpreted by domestic courts” ( Kopecký, cited above, § 54), while the Court “has only limited power to deal with alleged errors of fact or law committed by national courts, to which it falls in the first place to interpret and apply domestic law”; such power being limited to the finding of an “appearance of arbitrariness” (ibid., § 56).

10. We consider that the reasons provided by domestic courts to reject the applicant’s claim were not arbitrary at all. Nor do the majority say that they were. Since we believe that the Court should not have gone further, our views, too, could just as well end here.

However, we cannot pass over in silence the fact that we dissent also on one of the core arguments that the majority have used to “correct” (albeit, in our view, contrary to the Court’s case-law) the legal argumentation that the Supreme Court developed to hold that the Trgo judgment was not an authority in the given circumstances (paragraphs 38 and 39 of the judgment).

While it is true that the Grand Chamber in Radomilja and Others did not, for procedural reasons, address the legal issues dealt with in Trgo (paragraph 98 of the judgment), this does not at all mean, in our view, that the Trgo principles apply necessarily to the different factual circumstances in the present case (which was the essence of the Supreme Court’s finding in the present case, even though this line of case-law was subsequently overruled, see paragraphs 53-55 of the judgment). A hint of the fact that interpretations differing from that of the majority in the present case are feasible (and such a prospect should once more have encouraged them to defer to national judges, in a spirit of genuine subsidiarity) may be found in one of the separate opinions annexed to the Radomilja and Others judgment: those judges who did not share the procedural approach chosen by the majority (which made it unnecessary to explore the further legal issues) were in fact obliged to deal with the legal issues at stake. In our approach it is not surprising, but it is nevertheless a fact, that their reasoning is so similar to that which would subsequently be developed by the Supreme Court that one could infer that the Croatian judges were at least inspired by the opinion [6] .

In the light of the above, we respectfully consider that, rather than opposing an interpretation of the law given by national judges, incidentally consistent with that expressed by some judges of the Court, the majority should have abided by the principles according to which:

– “unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention” ( Radomilja and Others , cited above, § 149; see also Kopecký , cited above, § 50);

– as to the law, “whether or not [the applicant] complied with the statutory requirements is to be determined in judicial proceedings” ( Radomilja and Others , cited above, § 149);

– as to the facts, which are also relevant to applying the law, “the Court ... is sensitive to the subsidiary nature of its role and .... cautious in taking on the role of first-instance tribunal”, save for cogent reasons ( Radomilja and Others , cited above, § 150).

11. In these circumstances we are unable to conclude that the applicant did have a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1. The guarantees of that provision therefore do not apply to the present case. In any event, there has not been a violation of that Article.

12. In our view, the present judgment is a regrettable development of the Court’s case-law.

[1] Social ownership was a type of ownership which did not exist in other socialist countries but was developed in the former Yugoslavia. According to the official doctrine, property in social ownership had no owner, the role of public authorities in respect of such property being confined to management. For more details on the concept of social ownership in the former Yugoslavia see Trgo v. Croatia , no. 35298/04, § 6, 11 June 2009.

[2] Local boards are the lowest (third) level of local authorities in Croatia which are organised and operate at the level of a town or city quarter or of a village, hamlet or other small settlement.

[3] Free of vice means that the property must not have been at any time taken by force, by fraud (stealth, secretly) or by gratuitous revocable loan by the person claiming to have acquired ownership by adverse possession or by a previous possessor ( Nec vi, nec clam, nec precario ).

[4] See, for example, in a recent source, M. Cousins, “Legitimate Expectations and Social Security Law Under the European Convention of [sic] Human Rights” , European Journal of Social Security , vol. 23, I, March 2021, p. 24 et seq., esp. p. 32, where the author draws, from language in a separate Opinion annexed to the judgment in Bikić v. Croatia , no. 50101/12, 29 May 2018, inferences as to divisions in the Court and the fact that the majority in Radomilja and Others v. Croatia (cited in the text) had refused some of the principles stated in Bélané Nagy v. Hungary [GC], no. 53080/13, 13 December 2016. See also M. Sigron, “Legitimate Expectations under Article 1 of Protocol No. 1 to the European Convention on Human Rights”, Cambridge-Antwerp-Portland: Intersentia, 2014.

[5] A corollary of the notion of “legitimate expectation” – one of those that have formed the object of extensive judicial and doctrinal debate – is that relating to “conditional claims”. In the present case, the claim was indeed, in our view, conditional, as the applicant had to fulfil conditions concerning, inter alia , the extension of possession in time as well as good faith (the Government in their observations of 17 March 2021, §§ 66 and 67, because of the cadastral surveys conducted, provided serious factual and legal reasons supporting the view that the applicant – who bears the burden of proof – was not in material possession of the two disputed plots, let alone in good faith, until 1999). The majority seem to overlook this conditional nature of the claim, when they refer to the fact that “ownership will be acquired by adverse possession ipso jure ”; but then they add themselves that the ipso jure acquisition occurs only “when all statutory conditions are met” (paragraph 87 of the judgment). For reasons of brevity, we prefer not to deal with such an intricate matter; however, in our view, the majority should not have considered that the Court had to substitute its own assessment for that of national judges when it came to reviewing legal and factual circumstances (paragraphs 115-118 of the judgment, paragraph 10 of this opinion). The majority, in paragraphs 113-115 of the judgment, justify their approach by arguing that, since the domestic courts took a legal standpoint which made it unnecessary to proceed with factual findings, “the principle of subsidiarity requires the Court to make those findings itself” (paragraph 116), albeit “without prejudice to a possible future finding by the domestic courts” along a different pathway (paragraph 121). In this area, in which – as we try to clarify in the text – the Court must consider facts and national law “as interpreted by domestic courts” ( Kopecký , cited in the text, § 54), we have a different vision of subsidiarity, allowing the Court only to review arbitrariness. In this regard, it must be said that the majority have not found any arbitrariness when reassessing (in our view, in an inappropriate way) the facts and the law as interpreted domestically, and with which the majority merely disagreed because the domestic approach was allegedly “contrary to the Court’s judgment in the Trgo case” (paragraph 114 of the judgment).

[6] See Joint Partly Dissenting, Partly Concurring Opinion of Judges Yudkivska, Vehabović and Kūris attached to the Radomilja and Others Grand Chamber judgment, cited above. In particular, paragraph 13 of that Opinion reads as follows:

“… we cannot agree with the Chamber that section 388(4) of the Property Act was applicable to the applicants’ situation. At the time when the applicants brought their civil actions before the domestic authorities, that provision was no longer the valid law and therefore was not applicable, owing to the decision of 17 November 1999 by the Constitutional Court. ... Even conceding (which would be a hard thing to do because of the reasons stated in the preceding paragraph) that the Trgo judgment (cited above) suggests that that applicant’s claim had a sufficient basis in domestic law to qualify as an ‘asset’, because he instituted relevant proceedings as soon as the Property Act in its original version entered into force in 1997 and thus had some expectations which at the material time might have been seen, at least from some perspective, as legitimate, and which he retained over the next three years until the Constitutional Court declared section 388(4) of that Act unconstitutional, and that all this triggered the applicability of Article 1 of Protocol No. 1 in Trgo, the legal situation in the instant case is different in at least one crucial respect. In the instant case, the applicants had not instituted any proceedings regarding the adverse possession of the land in question while section 388(4) of the 1996 Property Act was still in force. Once it was declared unconstitutional by the Constitutional Court (in our opinion, very reasonably), the applicants had no legitimate expectation whatsoever in respect of the land in question. But it was exactly then (and with a not insignificant delay) that they presented their claims to the domestic authorities, already in the absence of any legal basis in domestic law for legitimation of their expectations. Expectations they might have had (and we have no doubt that they did have them) – but expectations and legitimate expectations are not necessarily two matching realities. Very often they do not match, just like in the instant case.”