FIRST SECTION
Application no. 5076/09
Danijel GURDULIĆ and others
against Croatia
lodged on 29 December 2008
STATEMENT OF FACTS
1. The applicants are Croatian nationals, born between 1939 and 1974 and live in Zagreb. They are all represented by Ms Ines Bojić, a lawyer practicing in Zagreb. Their names are set out in the Appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
3. In 1950 a sports association, T.D.S. (subsequently T.K.S.), took possession of two plots of land (Nos. 687 and 688, Land Register Split Municipality) owned by the applicants’ relatives I.G, C.G. and B.M. and built tennis courts in accordance with a building permit issued to it.
4. In 1958 the plots of land of the applicants’ relatives were nationalized as underdeveloped construction land under sections 38 and 39 of the Act on Nationalisation of Rental Buildings and Construction Land of 1958 (Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta, Official Gazette of the Federal People’s Republic of Yugoslavia no. 52/1958 – “the 1958 Nationalisation Act”). Under these provisions underdeveloped construction land remained in the possession of the former owner until the former owner, on the basis of a decision by the competent municipality, surrendered possession of the land to the municipality or to another person, for construction of a building or other facility or for other works (section 38). 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 with or without a charge according to the provisions regulating lease of agricultural land (section 39).
5. Consequently, in 1961 the plots of land were registered in the land registry as social ownership as was the right of the former owners (the applicants’ relatives) to use the plots of land until the authorities issued a decision transferring the possession of the plots to the municipality or to another person.
6. On 16 March 1981 the Split Municipality and sports association T.K.S. concluded an agreement by which the Split Municipality transferred the right to administer, use and maintain the newly built tennis courts to T.K.S. The Split Municipality also agreed that T.K.S. could register the right to use the tennis courts in the land registry.
7. On 5 December 1995 the Split Municipality issued a decision under section 88(a) of the 1995 Amendment of the Sports Act, by which ownership of all sports facilities and other real estate in social ownership in respect of which the right to use had been given to sports organisations and associations was transferred to the Split Municipality.
2. The first set of civil proceedings for compensation
8. On 15 April 1969 the applicants’ relatives brought a civil action in the Split Municipal Court (Općinski sud u Splitu), seeking compensation from T.K.S. for the use of the plots of land at issue.
9. On 6 March 1989 the Split Municipal Court ordered the defendant to pay the applicants’ relatives 2,089,020 Yugoslav dinars, with interest, for using plots of land without any legal basis between 1966 and 1986. This judgment was upheld by the Split County Court (Županijski sud u Splitu) on 1 September 1989 and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 3 January 1997, both of which endorsed the finding that there was no legal basis for allowing the defendant to use the plots of land in question.
3. The second set of civil proceedings for compensation
10. On 7 May 1990 the applicants brought a civil action in the Split Municipal Court, seeking compensation from T.K.S. for the use of the plots of land between 1 January 1990 and 30 April 2006.
11. On 19 July 2007 the Split Municipal Court ordered the sports association T.K.S. to pay the applicants 6,071,752.00 Croatian kunas, with interest.
12. The defendant appealed and on 20 November 2008 the Split County Court reversed the first-instance judgment and dismissed the applicants’ compensation claim on the ground that the 1992 Sports Act and its 1995 Amendment had came into force before the Ownership and Other Rights In Rem Act. The former Act provided for the conversion of social ownership of sports facilities into the ownership vesting in the Split Municipality which then transferred these plots to T.K.S. which had thus secured a legal basis for using the plots of land.
4. The civil proceedings for repossession
13. On 25 August 1994 the applicants brought a civil action in the Split Municipal Court against the State and the sports association T.K.S., seeking the repossession of the same plots of land. They argued that they were the owners of the plots of land in question and registered as such in the land registry. They also submitted that T.K.S. was in possession of the tennis courts situated on the same plots without any legal basis.
14. On 13 September 1999 the Split Municipal Court ordered T.K.S. to transfer possession of the plots at issue to the applicants. The applicants withdrew their action against the State.
15. On 17 October 2005 the Split County Court upon the defendant’s appeal reversed the first–instance judgment and dismissed the applicants’ claim acknowledging that the applicants’ relatives had succeeded in their compensation claim for the period between 1966 and 1986, but that since then the transformation of social ownership into private ownership in respect of sports facilities had taken place, under the 1992 Sports Act and the 1995 Amendment. It also established that on 5 December 1995 the Split Municipality had issued a decision by which it had acquired the ownership of the plots at issue, under the 1995 Amendment of the 1992 Sports Act. The second-instance court also stressed that the Split Municipality and T.K.S. had concluded an agreement, published in the local official gazette, by which the Split Municipality gave the right to manage, use and maintain the tennis courts to T.K.S.
16. The applicants then lodged a constitutional complaint which was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 9 October 2008. It endorsed the view of the second-instance court.
COMPLAINTS
The applicants complain under Article 6 of the Convention about the lack of fairness of the civil proceedings and under Article 1 of Protocol No. 1 that they were deprived of their right to the peaceful enjoyment of their possessions.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?
2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference 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? In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
Appendix
Danijel GURDULIĆ, born in 1974 Katica GURDULIĆ, born in 1938 Ivan GURDULIĆ, born in 1972 Antica GURDULIĆ ŠVERKO, born in 1939 Adela MARANGUNIĆ, born in 1939
Full & Egal Universal Law Academy