GRAND CHAMBER
 
 
 
 
 
 
 
CASE OF RADOMILJA AND OTHERS v. CROATIA
 
(Applications nos. 37685/10 and 22768/12)
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
20 March 2018
 
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Radomilja and Others v. Croatia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Guido Raimondi, President,
 Angelika Nußberger,
 Linos-Alexandre Sicilianos,
 Ganna Yudkivska,
 Robert Spano,
 Branko Lubarda,
 Vincent A. De Gaetano,
 Julia Laffranque,
 Erik Møse,
 Helen Keller,
 Faris Vehabović,
 Ksenija Turković,
 Egidijus Kūris,
 Iulia Motoc,
 Síofra O’Leary,
 Mārtiņš Mits,
 Pere Pastor Vilanova, judges,
and Søren Prebensen, Deputy Grand Chamber Registrar,
Having deliberated in private on 3 May and 4 December 2017,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in two applications (nos. 37685/10 and 22768/12) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Croatian nationals, (“the applicants”), on 17 May 2010 and 27 March 2012 respectively. As a result of the Grand Chamber’s decision referred to in paragraph 62 below, the applications were subsequently joined to form a single case. 2. The applicants were represented by Mr B. Duplančić, a lawyer practising in Split. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The applicants alleged, in particular, that their right to peaceful enjoyment of their possessions had been violated because the domestic courts had refused to acknowledge the ownership of property they had acquired by adverse possession. 4. The applications were allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 23 May 2014 and 25 June 2015 respectively, notice of the complaints concerning the property rights was given to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3. 5. In two judgments of 28 June 2016 (Radomilja and Others v. Croatia, no. 37685/10, 28 June 2016, and Jakeljić v. Croatia, no. 22768/12, 28 June 2016) a Chamber of the Second Section, by a majority, declared the applications admissible, except in so far as the application in the case of Radomilja and Others had been lodged in the name of Mr Gašpar Perasović (see the Chamber judgment in that case, §§ 38-39). The Chamber in both judgments, by six votes to one, also held that there had been a violation of Article 1 of Protocol No. 1 to the Convention. The Chamber was in each case composed of Işıl Karakaş, President, Nebojša Vučinić, Paul Lemmens, Valeriu Griţco, Ksenija Turković, Stéphanie Mourou-Vikström, Georges Ravarani, judges, and Stanley Naismith, Section Registrar. Judge Lemmens expressed a partly dissenting opinion in the case of Radomilja and Others and a dissenting opinion in the Jakeljić case. 6. On 28 September 2016 the Government requested the referral of both cases to the Grand Chamber in accordance with Article 43 of the Convention and Rule 73. On 28 November 2016 a panel of the Grand Chamber accepted the request. 7. The composition of the Grand Chamber was determined in accordance with the provisions of Articles 26 §§ 4 and 5 of the Convention and Rule 24. 8. On 16 January 2017 the President of the Grand Chamber, after consulting the parties, decided not to hold a hearing (Rules 71 § 2 and 59 § 3 in fine). 9. The applicants and the Government each filed written observations on the admissibility and merits. The Government replied in writing to the applicants’ observations, whereas the applicants did not reply to those of the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicants live in Stobreč (application no. 37685/10) and Split (application no. 22768/12). Their names and dates of birth are set out in the Appendix. A. Background to the case
11. The legislation of the former Yugoslavia, in particular section 29 of the 1980 Basic Property Act (see paragraph 53 below), prohibited the acquisition of ownership of socially owned property[1] by adverse possession (dosjelost). 12. When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed the above-mentioned provision (see paragraph 54 below). 13. Subsequently, the new Property Act of 1996, which entered into force on 1 January 1997, provided in section 388(4) that the period prior to 8 October 1991 was to be included in calculating the time-limit necessary for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 56 below). 14. Following several petitions for an abstract constitutional review (prijedlog za ocjenu ustavnosti) submitted by former owners of properties that had been appropriated under the socialist regime, 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. 15. In a decision of 17 November 1999 the Constitutional Court invalidated with ex nunc effect section 388(4) of the 1996 Property Act. It held that the impugned provision had retroactive effect resulting in adverse consequences for the rights of third parties (primarily those who, under the restitution legislation, were entitled to the restitution of property appropriated during the Communist regime) 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). The Constitutional Court’s decision came into effect on 14 December 1999 when it was published in the Official Gazette. B. Proceedings before the domestic courts
1. Civil proceedings in the case of Radomilja and Others (no. 37685/10)
16. On 19 April 2002 the applicants brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against Split Township (Grad Split – hereinafter “the respondent authority”) seeking a declaration of their ownership of five plots of land and registration in their names in the land register. They submitted that the property at issue, even though it had been recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township, had been in their possession and the possession of their predecessors for more than seventy years. Given that the statutory period for acquiring ownership by adverse possession had elapsed, the applicants claimed to have acquired ownership of the land. Their statement of claim (tužba) read as follows:
“Plots of land nos. 866/91 (...), 866/117 (...), 866/136 (...) and 866/175 ... are registered in the name of the Stobreč Municipality. EVIDENCE: Extract from the land register. However, the plaintiffs and their legal predecessors have been holding the above-mentioned immovable property in their possession for more than 70 years, and thereby acquired the ownership of that immovable property. EVIDENCE: Extract from the cadastre, testimony of the witness N.P., parties’ testimonies and other evidence, if needed. (a)  [...]
(b)  Plot no. 866/136 belongs to the plaintiffs Mladen Radomilja and Frane Radomilja in two equal parts;
(c)  Plot no. 866/175 belongs to the plaintiff Ivan Brčić in its entirety. EVIDENCE: See above

Outcome for Article P1-1: no_violation