Communicated on 25 June 2015
FIRST SECTION
Application no. 22768/12
Jakov JAKELJIĆ and Ivica JAKELJIĆ
against Croatia
lodged on 27 March 2012
STATEMENT OF FACTS
The applicants, Mr Jakov Jakeljić and Mr Ivica Jakeljić are Croatian nationals, who were born in 1960 and 1970 respectively and live in Split. They are represented before the Court by Mr B. Duplančić, an advocate practising in Split.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
The legislation of the former Yugoslavia, in particular section 29 of the Basic Property Act of 1980, prohibited the acquisition of ownership of socially owned property by adverse possession (dosjelost).
When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed that provision.
Subsequently, the new Property Act of 1996 provided in section 388(4) that the period prior to 8 October 1991 was to be included in calculating the period for acquisition of ownership by adverse possession of socially owned immovable property.
Following several petitions for constitutional review (prijedlog za ocjenu ustavnosti) submitted by the former owners of property that had been appropriated during socialism, on 8 July 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the initiative, and decided to institute proceedings to review the constitutionality of section 388(4) of the 1996 Property Act.
On 17 November 1999 the Constitutional Court invalidated section 388(4) of the 1996 Property Act. It held that the impugned provision had retroactive effects with adverse consequences for the rights of third persons and was therefore unconstitutional (for the relevant part of the Constitutional Court’s decision see Trgo v. Croatia, no. 35298/04, § 17, 11 June 2009).
2. Proceedings in the particular case
In 1994, 1996 and 1999 the applicants bought three plots of land from various persons. However, those plots had been recorded in the land register as being in social ownership.
On 4 April 2002 the applicants brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against the Split Township (Grad Split) seeking a declaration of their ownership of three plots of land in question and their registration in their name in the land register. They submitted that the property at issue, even though it had been recorded in the land register as being in social ownership, had been in the possession of their legal predecessors for more than 100 years. Given that the statutory prescribed period for acquisition of ownership by adverse possession had elapsed in respect of their legal predecessors, the applicants claimed that by buying it from them they had validly acquired ownership of the land.
By a judgment of 1 June 2007 the Municipal Court ruled for the applicants. It held that they had proved that their predecessors had continuously and in good faith possessed the land in question since at least 1912. Consequently, it held that the statutory time-limit for acquiring ownership by adverse possession had elapsed after forty years, that is, the latest in 1952.
Following an appeal by the defendant, on 29 May 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment by dismissing the action. It held that the Municipal Court had established the facts correctly (continuous possession in good faith of the land since 1912) but had erred in its application of the substantive law. In particular, the property in question had been nationalised on 16 April 1954 and thereby transferred into social ownership with the effect from 6 April 1941. That being so, and given that before 8 October 1991 it had been legally impossible to acquire ownership of socially owned property by adverse possession, the statutory time-limit for doing so could not have in the applicant’s case even started to run before that date.
The applicants then lodged a constitutional complaint against the second-instance judgment, alleging infringements of their constitutional rights to equality before the law, equality before the courts and to fair procedure.
By a decision of 15 December 2011 the Constitutional Court dismissed their constitutional complaint and served its decision on their representative on 4 October 2011.
B. Relevant domestic law and practice
Paragraph 1472 of the Civil Code of 1811 (Opći građanski zakonik) provided that a possessor acting in good faith could acquire ownership of State-owned immovable property by adverse possession after forty years.
The other relevant domestic law and practice is set out in Trgo, cited above, §§ 26-29).
COMPLAINT
The applicants complain under Article 1 of Protocol No. 1 to the Convention that the decisions of the domestic courts deprived them of the property they had lawfully acquired.
QUESTION TO THE PARTIES
Was the refusal of the domestic courts to acknowledge the applicants’ ownership of three plots of land their legal predecessors had allegedly acquired by adverse possession, in violation of their right to peaceful enjoyment of their possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention (see Trgo v. Croatia, no. 35298/04, 11 June 2009)?
Full & Egal Universal Law Academy