Communicated on 23 May 2014
FIRST SECTION
Application no. 37685/10
Gašpar PERASOVIĆ and others
against Croatia
lodged on 17 May 2010
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
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When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed that provision.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 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 five plots of land 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 their possession and the possession of their ancestors since 1912. Given that the statutory prescribed period for acquisition of ownership by adverse possession had elapsed, the applicants claimed to have acquired ownership of the land.
By a judgment of 20 September 2004 the Municipal Court ruled for the applicants. It held that they had proved that they and their predecessors had possessed the land in question since 1912. Consequently, it held that the statutory time-limit for acquiring ownership by adverse possession had elapsed after twenty years, that is, in 1932. That was before 6 April 1941 as the date from which it was no longer possible to acquire ownership of socially owned property by adverse possession.
Following an appeal by the defendant, on 17 May 2007 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 of the land since 1912) but had erred in its application of the substantive law. In particular, the first-instance court should have applied the law applicable in the relevant period, i.e. paragraph 1472 of the Civil Code of 1811, which was applicable in Croatia from 1852 until 1980. As that provision provided that immovable property in State ownership could be acquired by adverse possession only after forty years, the applicant’s action should have been dismissed because that time limit had not expired before 6 April 1941.
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 30 September 2009 the Constitutional Court dismissed their constitutional complaint and served its decision on their representative on 19 November 2009.
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).
COMPLAINTS
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 acquired by the operation of law.
QUESTION TO THE PARTIES
Was the refusal of the domestic courts to acknowledge the applicants’ ownership of five plots of land they claim to have 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)?
Appendix
Gašpar PERASOVIĆ is a Croatian national, lives in Stobreč and is represented by B. DUPLANČIĆ Ivan BRČIĆ born on 12/08/1959 is a Croatian national who was born in 1959, lives in Stobreč and is represented by B. DUPLANČIĆ Marin RADOMILJA born on 30/09/1990 is a Croatian national who was born in 1990, lives in Stobreč and is represented by B. DUPLANČIĆ Mladen RADOMILJA born on 29/06/1948 is a Croatian national who was born in 1948, lives in Stobreč and is represented by B. DUPLANČIĆ Nenad RADOMILJA born on 02/10/1986 is a Croatian national who was born in 1986, lives in Stobreč and is represented by B. DUPLANČIĆ Vesna RADOMILJA born on 09/02/1963 is a Croatian national who was born in 1963, lives in Stobreč and is represented by B. DUPLANČIĆ
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