Communicated on 8 September 2014
FIRST SECTION
Application no. 45366/14
Josip MAJCAN
against Croatia
lodged on 16 June 2014
STATEMENT OF FACTS
The applicant, Mr Josip Majcan, is a Croatian national, who was born in 1943 and lives in Buzet. He is represented before the Court by Mr I. Milanović, an advocate practising in Umag.
A. The circumstances of the case
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When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed that provision.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
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2008 the applicants brought a civil action in the Pazin Municipal Court (Općinski sud u Pazinu) against the State seeking a declaration of their ownership of twelve plots of land and their registration in his name in the land register. He submitted that the property at issue, even though it had been recorded in the land register as being in social ownership, had been in his possession and the possession of his ancestors since 1890s. Given that the statutory prescribed period for acquisition of ownership by adverse possession had elapsed, the applicant claimed to have acquired ownership of the land.
By a judgment of 24 June 2008 the Municipal Court ruled for the applicant.
Following an appeal by the State, on 12 April 2010 the Pula County Court (Županijski sud u Puli) quashed the first-instance judgment and remitted the case.
In the resumed proceedings, by a judgment of 24 December 2012 the Pazin Municipal Court dismissed the applicant’s action.
On 16 December 2013 the Pula County Court dismissed the applicant’s appeal and upheld the first-instance judgment.
The ordinary courts found that the applicant had proved that he and his predecessors had been in the continuous possession of the property in question since 1947 until the present day, but not before that period. They also established that 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 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 neither before 6 April 1941 or in the period between that date and 8 October 1991. Furthermore, the time elapsed between 8 October 1991 and the present day was not sufficiently long as the ownership of State-owned immovable property could have been acquired by adverse possession only after forty years of continuous uninterrupted possession in good faith.
On 31 October 2013 the applicant lodged a constitutional complaint against the second-instance judgment, alleging infringement of, inter alia, his constitutionally-guaranteed right of ownership.
By a decision of 11 December 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible and served its decision on his representative on 20 December 2013. It found that even though the applicant relied in his constitutional complaint on the relevant Articles of the Constitution he had not substantiated his complaint by any constitutional law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint.
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 applicant complains under Article 1 of Protocol No. 1 to the Convention that the decisions of the domestic courts deprived him of the property he had acquired by the operation of law.
QUESTION TO THE PARTIES
Was the refusal of the domestic courts to acknowledge the applicant’s ownership of twelve plots of land he claims to have acquired by adverse possession, in violation of his right to peaceful enjoyment of his possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention (see Trgo v. Croatia, no. 35298/04, 11 June 2009)?
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