CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 décembre 2021

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB217F55E { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt }   FIRST SECTION CASE OF GRBAC v. CROATIA (Application no. 64795/19)     JUDGMENT   Art 1 P1 • Peaceful enjoyment of possessions • Domestic courts’ dismissal of applicant’s claim to ex lege ownership of socially owned property through adverse possession due to civil action being brought after Constitutional Court’s invalidation of legal provision allowing such claims • Findings contrary to domestic case-law and Court’s Trgo v. Croatia judgment • Resulting failure to assess evidence and establish facts as to whether statutory requirements for such ownership satisfied • Applicant’s claim with sufficient basis in national law • Art 1 P1 applicable • Findings in Trgo applicable: consequences of a mistake by the State authority – enacting unconstitutional legislation–to be borne by the State and not the individual • No indication of any third-party rights being affected   STRASBOURG 16 December 2021   FINAL   04/04/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Grbac v. Croatia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Péter Paczolay, President,   Ksenija Turković,   Alena Poláčková,   Erik Wennerström,   Raffaele Sabato,   Lorraine Schembri Orland,   Ioannis Ktistakis, judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   64795/19) 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 a Croatian national, Mr Milutin Grbac (“the applicant”), on 2 December 2019; the decision to give notice to the Croatian Government (“the Government”) of the complaints concerning access to court and the right of property; the parties’ observations; Having deliberated in private on 16 November 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns a property dispute between the applicant and the local authorities. The applicant claimed to have ex lege acquired ownership of certain parts of plots of land by adverse possession, as he and his legal predecessors had possessed those parts for more than eighty years. THE FACTS 2.     The applicant was born in 1949 and lives in Rijeka. He was represented by Mr K. Lanča, an advocate practising in Opatija. 3.     The Government were represented by their Agent, Ms Š. Stažnik. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5 .     The legislation of the former Yugoslavia, in particular section 29 of the 1980 Basic Property Act (see paragraph 45 below), prohibited the acquisition of ownership of socially owned property [1] by adverse possession ( dosjelost ). 6.     When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed the above-mentioned provision (see paragraph 47 below). 7 .     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 relevant time-limit for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 51 below). 8.     Following several petitions for an abstract constitutional review ( prijedlog za ocjenu ustavnosti ) lodged 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 for a review of the constitutionality of section   388(4) of the 1996 Property Act. 9 .     By 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 negative consequences for the rights of third parties (primarily those who, under restitution legislation, were entitled to the restitution of property appropriated during the socialist 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. Civil proceedings in the applicant’s case 10 .     On 27 November 2006 Rijeka Township notified the applicant that he had been unlawfully occupying parts of two plots of land owned by the Township. Those parts were situated within an enclosed area of land adjoining the applicant’s house (hereafter “the applicant’s smallholding”). 11 .     On 19 March 2007 Rijeka Township brought a civil action against the applicant in the Rijeka Municipal Court ( Općinski sud u Rijeci ) asking the court to order him to surrender the disputed parts into the Township’s possession. The Township asserted that the applicant, who was the owner of two adjacent plots, had illegally annexed parts of the two neighbouring plots of land (hereafter “the disputed parts” or “the property in dispute”) owned by the Township. 12 .     On 11 April 2007 the applicant responded to the civil action and lodged a counterclaim asking the court to issue a declaratory judgment establishing that he was the owner of the disputed parts, which he asserted that he had acquired by adverse possession. He submitted (a) that all the land within his smallholding had been bought by his father in 1955 from a certain Ms O.B. by means of an oral sale and purchase agreement, and (b) that the disputed parts allegedly belonging to Rijeka Township had always been a part of his smallholding because they were situated within the area enclosed by an old dry stone wall surrounding his property. 13 .     The applicant also stated that in 1955 his father and O.B. had not known that the property which had been the object of their sale and purchase agreement had formally (as recorded in the land register and cadastre) consisted of several plots of land. In 1963 his father had realised that some of that property had not been formally owned by O.B. but that it had been recorded in the land register as socially owned property. However, his father had believed that this situation had been fully regulated by a decision of the so-called Usurpation Commission of 27 April 1963 whereby one plot of land that had until then been recorded in the land register as being in social ownership had been recorded in his father’s name. 14 .     The applicant furthermore explained that in 1972 his father had wished to transfer to him by deed of gift the property that he had bought from O.B. However, at that time they had realised that one plot – which was a part of that property – was still recorded in the land register under O.B.’s name. In order to correct this the applicant had on 12 January 1972 concluded a written sale and purchase agreement whereby O.B. had sold him that plot (which his father had actually already bought from her and taken possession of in 1955 – this was expressly mentioned in the agreement). On the same day the applicant’s father had transferred another plot (which was a part of that property) into the applicant’s ownership by deed of gift. These two plots were in 1986 merged into a single plot and recorded as such in the land register under the applicant’s name. 15 .     In reply Rijeka Township submitted that by the applicant’s own admission the applicant’s father had by 1963 already known that what he had bought from O.B. had not been owned by her (see paragraph 13 above). Furthermore, it was unclear how his father could have believed that the discrepancy between the actual situation and the status of the property in the land register had been resolved by a decision of the Usurpation Commission, which had only transferred into his ownership the land that had been in his possession at that time. From that decision a contrary conclusion had to be drawn – namely that the disputed parts had not been in the applicant’s father’s possession, as otherwise they would have been transferred into his ownership as well. 16 .     Rijeka Township furthermore submitted that in 1986 the cadastral authorities had conducted a survey in the area, the purpose of which had been to update and consolidate the cadastre so to reflect the actual situation. Had the applicant been in possession of the disputed parts at the time, a new plot would have been created and he would have been recorded as its possessor in the cadastre. The Township therefore argued that the applicant had not been in possession of the disputed parts before 1986 but that he had occupied them afterwards. Since, in their view, from his counterclaim it followed that he and his father had known that those parts had not been theirs (see paragraphs 13-14 above), the applicant and his father had not held those parts in good faith. This meant that under domestic law the applicant could not have become the owner of those parts by adverse possession (under section 159(3) of the 1996 Property Act – see   paragraph   50 below). 17 .     In the course of the first-instance proceedings, the Municipal Court heard the applicant and three witnesses called by him, conducted an on-site inspection, ordered a report from an expert surveyor and consulted various documents (including the letter of 12 May 2009 – see paragraph 20 below). 18 .     In his testimony the applicant stated that he had not known that the disputed parts had not been covered by the sale and purchase agreement between his father and O.B. (see paragraph 13 above) because the object of the sale had actually been a single piece of land enclosed by a dry stone wall. When replying to a question posed by the plaintiff’s representative he also stated: “I am aware that in 1985 and 1986 the cadastral authorities were surveying the land in the area ... and that I was invited to comment. The employees in the Cadastre [Office] told me that they were undertaking a consolidation [of the cadastre] and that my plot was too big and had to be reduced and asked me to sign some documents. I signed those [documents] but told them that my father had left that [land] to me as a gift. They [replied] that all that was socially owned in any case and that I was only the beneficiary of the land in question. I did not exactly read what I signed on that occasion.” 19 .     All three witnesses (two of whom were born in 1944 and one in 1947) testified that the disputed parts had been in the possession of the applicant’s family since 1955 and before that in the possession of Ms O.B., and that no one had ever contested their ownership of those parts. 20 .     This was also confirmed in a letter of 12 May 2009 to Rijeka Township by the Council of the Local Board of Pehlin ( Vijeće Mjesnog odbora Pehlin ) [2] . The relevant part of that letter, which was signed by four councillors, read as follows: “The majority of the members of the Council of the Local Board of Pehlin were born in Rijeka and have permanently resided in Pehlin since their birth. They know that the disputed [parts] have been in the long-term possession of the Grbac family – first in the possession of late Milan Grbac and then, after a transfer by deed of gift, in the possession of his son Milutin Grbac. Before the Grbac family entered into possession [of the property in dispute], [it] had been in the long-term possession of the late Ms O.B. The accuracy of our statements is discernible from the Rijeka Municipal Court’s survey of 7 February 1972, which corresponds to the actual situation. We therefore suggest that Rijeka Township take these statements into account in the further course of the proceedings in this case.” 21 .     The expert surveyor’s report established that the applicant was in possession of 98   sq.   m of plot no. 388/1, as well 832   sq.   m of plot no.   388/593; both plots were recorded in the land register as being under the ownership of Rijeka Township. Neither party objected to the expert report. 22 .     By a judgment of 22 April 2011 , the Rijeka Municipal Court ruled in favour of Rijeka Township and ordered the applicant to surrender the disputed parts into the Township’s possession. At the same time the court dismissed the counterclaim lodged by the applicant (see paragraph 12 above) seeking to be declared their owner. 23 .     The court established, firstly, that the two plots in question (see   paragraph 21 above) had on 8 October 1991 been in social ownership and that under the relevant legislation it had not been possible to acquire ownership of such property by adverse possession (see paragraph 52 below) unless the statutory requirements for doing so had been met by 6 April 1941 or after 8   October 1991. 24.     However, all the witnesses called by the applicant and heard by the court had been too young (see paragraph 19 above) to know whether his predecessors had been in the possession of the property in dispute before 6   April 1941. Consequently, the applicant had not demonstrated that the statutory requirements for acquiring ownership by adverse possession had been met before that date. 25 .     The period from 8 October 1991 until 27 November 2006 (when Rijeka Township had notified the applicant that the property in dispute had not belonged to him – see paragraph 10 above) had been too short because immovable property owned by the local authorities could be acquired by adverse possession only after forty years (under section 159(4) of the 1996 Property Act – see paragraph 50 below). 26 .     The applicant appealed. In his appeal he argued that the prohibition on acquiring ownership of socially owned property by adverse possession had existed from the moment at which the property in question had passed into social ownership until 8 October 1991. It was therefore necessary to find out when the two plots of land currently owned by Rijeka Township (see paragraph 21 above) had been transferred into social ownership – a fact which the Municipal Court had not established. To his knowledge, the land in the area had not passed into social ownership until the 1960s. The applicant also argued that the period before an item of property had been transferred into social ownership and the period after 8   October   1991 had to be combined when calculating the time necessary for acquiring ownership of such property by adverse possession. 27.     By a decision of 8 May 2013 the Rijeka County Court ( Županijski sud u Rijeci ) allowed the applicant’s appeal, quashed the first-instance judgment of 22   April 2011 (see paragraph 22 above) for incompleteness of facts and remitted the case for fresh consideration. It accepted the applicant’s argument that it was necessary to ascertain when the two plots owned by Rijeka Township had passed into social ownership. 28 .     In the fresh proceedings, on 21 January 2014, the Rijeka Municipal Court heard two additional witnesses (born in 1933 and in 1940 respectively) called by the applicant who testified that the disputed parts had been situated within the area of land bounded by a dry stone wall (see   paragraph 18 above); they furthermore testified that that area of land had been in the long-term possession of (and had belonged to) Ms M.O. and her family for many years before she had sold it to the applicant’s father in 1955. 29 .     On 7 February 2014 two more witnesses were heard (who were at that time aged eighty-two and eighty-three, respectively). The testimony given by the first of those witnesses echoed that of the two above ‑ mentioned witnesses (see paragraph 28), whereas the second knew nothing of the matter. 30 .     In reply to a request for information lodged by the court, on 24 April 2014 its land registry division informed it that from the data in the land register it was impossible to discern when the two plots in question (see   paragraph 21 above) on which the disputed parts of land were located had passed into social ownership because the old land register folio containing that information had been damaged. 31 .     By a judgment of 17 June 2014, the Municipal Court again ruled in favour of Rijeka Township and dismissed the applicant’s counterclaim. 32 .     The court held that the applicant had not proved that the land in the area had passed into social ownership in the 1960s (see paragraph 26 above) and thus had not demonstrated that his predecessors had acquired ownership by adverse possession before the property in dispute had become socially owned. Likewise, the applicant had not proved that his predecessors had been in the possession of the property in dispute before 6   April 1941 because the witnesses heard had been too young (see paragraph 19 and 28 ‑ 29 above) to have had any knowledge of that. It then reiterated its earlier finding that the period from 8   October 1991 until 27   November 2006 (see   paragraph 10 above) had been too short because immovable property owned by the local authorities could be acquired by adverse possession only after forty years (see paragraph 25 above and section 159(4) of the 1996 Property Act cited in paragraph 50 below). Lastly, the court held that the period before the transfer of an item of property into social ownership and the period after 8   October   1991 could not be combined for the purposes of calculating the time necessary for acquiring ownership of such property by adverse possession. 33.     The applicant again appealed. He once more argued that the Municipal Court had failed to establish when the two plots owned by Rijeka Township on which the disputed parts were located had been transferred into social ownership (see paragraph 26 above). In any event, he and his legal predecessors had acquired those parts by virtue of possessing them continuously and in good faith before and after 6 April 1941. He also reiterated his earlier argument that the period before a piece of property had been transferred into social ownership and the period after 8 October 1991 had to be combined when calculating the time necessary for acquiring ownership of such property by adverse possession (see paragraph 26 above). 34 .     By a judgment of 21 January 2015 the Rijeka County Court dismissed the applicant’s appeal and upheld the first-instance judgment of 17 June 2014 (see paragraph 31 above). It held that as the relevant land register records were damaged (see paragraph 30 above) the burden of proving when the two plots owned by Rijeka Township had passed into social ownership had rested on the applicant, who could have provided proof by other means – for example, by furnishing a decision whereby those plots had been transferred into social ownership. 35 .     On 27 April 2015 the applicant lodged an extraordinary appeal on points of law ( izvanredna revizija – see paragraph 61 below) with the Supreme Court ( Vrhovni sud Republike Hrvatske ) against the second ‑ instance judgment. He submitted that the first- and second-instance judgments had been based, inter alia , on the view that the period between 6   April 1941 and 8 October 1991 could not be included in the calculation of the relevant time-limit for acquiring ownership by adverse possession of socially owned immovable property. However, that view, reflected in the existing case-law of the domestic courts, was contrary to the Court’s judgment in the case of Trgo (cited above) and thus had to be revisited. 36.     The applicant also called into question the view of the civil courts that as the relevant records (that is to say the land register) – whose maintenance was the duty of the State – had been destroyed, it was incumbent on him (and not on the party whom it benefited – see   paragraphs   32 and 34 above) to prove when the two plots belonging to Rijeka Township had been transferred into social ownership. 37.     By a decision of 16 April 2019, the Supreme Court declared the applicant’s extraordinary appeal on points of law inadmissible because the point of law that he had raised was not important for the uniform application of the law. 38 .     The Supreme Court held that the respective factual circumstances in the applicant’s case and in Trgo were different. In particular, in Trgo the civil action had been brought while section 388(4) of the 1996 Property Act in its original text had still been in force, whereas the applicant in the present case had lodged his counterclaim after that provision had been repealed and replaced with a new one, under which the period between 6   April   1941 and 8   October   1991 could not be included in the calculation of the relevant time-limit for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 12 above and paragraphs 51-52 below). 39 .     The Supreme Court also added that the Court’s view that the time at which a civil action was brought was irrelevant – expressed in the Chamber judgment in the case of Radomilja and Others v. Croatia (no. 37685/10, §   52, 28 June 2016) – no longer had legal force because that judgment had been revised by the Grand Chamber’s judgment in respect of the same case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, 20 March 2018), when the Court, for different reasons, had held that domestic courts’ judgments dismissing applicants’ claims to be declared the owners of socially owned property by adverse possession had not been in breach of the Convention. 40 .     Then, on 3 July 2019, the applicant lodged a constitutional complaint against the Supreme Court’s decision. He relied on the relevant Articles of the Croatian Constitution guaranteeing the right to fair proceedings, the right of ownership and the right to equality before the law. The applicant argued that the Supreme Court and the lower courts had not applied the relevant provisions of the Convention and that the Supreme Court had unjustifiably declared his extraordinary appeal on points of law inadmissible. He averred that, contrary to the reasoning of the Supreme Court (see paragraph 39 above), the Grand Chamber in its judgment in Radomilja and Others had not called into question the Chamber’s finding that the time at which a civil action was brought was irrelevant for the application of the Trgo- related case-law, but had found no violation of Article 1 of Protocol No. 1 for different reasons. 41 .     By a decision of 25 September 2019, the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared the applicant’s constitutional complaint inadmissible, finding that the case did not raise a constitutional issue. It expressly agreed with and reiterated the Supreme Court’s reasoning concerning the legal effects of the Court’s judgments in Trgo and Radomilja and Others on the applicant’s case (see paragraphs 38-39 above). 42.     The Constitutional Court’s decision was served on the applicant’s representative on 9 October 2019. RELEVANT LEGAL FRAMEWORK AND PRACTICE Property legislation and practice The 1811 Civil Code 43 .     Article 1468 of the Austrian General Civil Code of 1811 ( Opći građanski zakonik – “the 1811 Civil Code”), which was applicable in Croatia from 1852 until 1980 (see Radomilja and Others , cited above, §§   47-49), provided that if immovable property was not recorded in the land register in the name of the person in whose possession it was, the possessor could acquire the ownership of such property by adverse possession after thirty years. The 1980 Basic Property Act 44 .     Section 28 of the Basic Ownership Relations Act ( Zakon o osnovnim vlasničkopravnim odnosima , Official Gazette of the Socialist Federal Republic of Yugoslavia nos.   6/80 and 36/90 – “the 1980 Basic Property Act”), which entered into force on 1   September 1980, provided that a person possessing in good faith immovable property owned by someone else would become its owner by adverse possession after twenty years. 45 .     Section 29 prohibited the acquisition of ownership by adverse possession of socially owned property. 46.     Section 72(1) provided that possession had to be considered in good faith if the possessors did not know or could not have known that the property they possessed was not theirs. Section 72(2) provided that possession in good faith had to be presumed. 47 .     Section 3 of the Act on the Incorporation of the Basic Ownership Relations Act ( Zakon o preuzimanju zakona o osnovnim vlasničkopravnim odnosima , Official Gazette of the Republic of Croatia no.   53/91 of 8   October 1991), which entered into force on 8   October 1991, repealed section 29 of the Basic Property Act. The 1996 Property Act 48.     Since 1   January 1997 matters concerning possession and ownership have been regulated by the Ownership and Other Rights In Rem Act ( Zakon o vlasništvu i drugim stvarnim pravima , Official Gazette no.   91/96, with subsequent amendments – “the 1996 Property Act”). 49 .     Section 18 provides when a possessor is considered to be in good faith. The relevant part of that provision reads as follows: Section 18 “(1) Possession is lawful if the possessor has a valid legal basis for that possession (right to possession). (2) ...   (3) Possession is in good faith if the possessor, when he or she acquired it, did not know nor, given the circumstances, did not have sufficient reason to suspect that he or she did not have the right to possession. However, good faith ceases as soon as the possessor learns that he or she does not have the right to possession. (4) If, in a dispute over the right to possession, it has been decided by a final decision that the right to possession does not belong to the possessor, his possession shall be [considered to be] in bad faith from the moment at which he or she received the [relevant] statement of claim. .... (5) Possession shall be considered to be in good faith, unless proven otherwise.” 50 .     The relevant provision of the 1996 Property Act concerning acquisition of ownership in general and, specifically, by adverse possession, read as follows: Legal grounds for acquisition Section 114 (1)     Ownership may be acquired by legal transaction, by decision of a court or other public authority, by succession, or by operation of law. Acquisition [of ownership] by operation of law ... (d)     Acquisition by adverse possession Section 159 (1)     Ownership may be acquired by adverse possession on the basis of the exclusive possession of a [particular] property if such possession is of the quality required by law and has lasted continuously for a period of time determined by law, and if the possessor is capable of being the owner of such property. (2)     An exclusive possessor who possesses lawfully, in good faith and whose possession is free of vice [3] shall acquire ownership of movable property after three years and of immovable property after ten years. (3)     An exclusive possessor who possesses at least in good faith shall acquire ownership of movable property after ten years and of immovable property after twenty years of continuous exclusive possession. (4)     An exclusive possessor of a property owned by the Republic of Croatia, counties or [other local authorities] ... shall acquire ownership by adverse possession once his or her ... possession has lasted continuously for a period twice as long as that set out in paragraphs 2 and 3 of this section.” 51 .     The original text of section 388 of the 1996 Property Act provided as follows: Section 388 “(1)     The acquisition, modification, legal effects and termination of rights in rem after the entry into force of this Act shall be assessed on the basis of its provisions ... (2)     The acquisition, modification, legal effects and termination of rights in rem until the entry into force of this Act shall be assessed on the basis of the rules applicable at the time of the acquisition, modification or termination of those rights or of their legal effects. (3)     If the prescribed time-limits for acquiring or terminating rights in rem set out in this Act started to run before its entry into force, they shall continue to run pursuant to paragraph 2 of this section ... (4)     In calculating the period for acquiring by adverse possession immovable property socially owned on 8 October 1991, and for acquiring [other] rights in rem over such property, the period before that date shall also be taken into account.” 52 .     After the Constitutional Court, on 17   November 1999, had invalidated paragraph 4 of section 388 of the 1996 Property Act as unconstitutional (see paragraph 9 above), that provision was amended by the 2001 Amendment to the 1996 Property Act ( Zakon o izmjeni i dopuni Zakona vlasništvu i drugim stvarnim pravima , Official Gazette no.   114/01), which entered into force on 20 December 2001. The new text of paragraph 4 reads as follows: “In calculating the period for acquiring by adverse possession immovable property socially owned on 8 October 1991, and for acquiring [other] rights in rem over such property, the period before that date shall not be taken into account.” Relevant practice As regards the acquisition of immovable property by adverse possession in the period between 6 April 1941 and 8 October 1991 53.     According to the interpretation adopted at the extended plenary session of the Federal Supreme Court of Yugoslavia of 4 April 1960, a person in possession of immovable property in good faith would acquire ownership of it by adverse possession after twenty years. That interpretation applied (retroactively) from 6 April 1941 until its adoption on 4 April 1960 and from that date until 1 September 1980, when the 1980 Basic Property Act entered into force and codified that interpretation (see paragraph 44 above). In a number of cases the Supreme Court of Croatia referred to this interpretation as valid law at the time (for those cases see Radomilja and Others , cited above, §§ 59-60). 54 .     In decision no. Rev-291/14-2 of 17 April 2018 the Supreme Court, upon an extraordinary appeal on points of law and referring to the Court’s judgment in Trgo , ruled in favour of the plaintiffs, who sought to be declared the owners by adverse possession of certain land that had in earlier times been socially owned. It quashed the lower courts’ judgments whereby those courts had dismissed the plaintiffs’ action brought on 7   September 2009 and remitted the case. The relevant part of the Supreme Court’s decision reads as follows: “When acquiring ownership by adverse possession of property that before 8   October 1991 was in social ownership, the period elapsed before 8   October 1991 should also be taken into account when calculating the time necessary for acquiring ownership by adverse possession, if this does not violate the ownership rights of third persons who did not acquire those rights on the basis of section 388(4) of the [1996 Property Act] but on the basis of other provisions of that Act. The risk of any mistake made by the State authorities must be borne by the State, and the errors must not be remedied at the expense of the individual who acquired ownership by adverse possession on the basis of a statutory provision that the Constitutional Court later invalidated as unconstitutional – especially in those cases where there is no other conflicting private interest of third persons. Since from the information in the case-file it can be discerned that the plaintiffs’ predecessors possessed the immovable property in dispute even before 8 October 1991, the [first-instance] court shall in the fresh proceedings examine in detail those circumstances as well, take other evidence that the parties may propose and examine whether there are circumstances [warranting] the application of the legal view expressed by the European Court of Human Rights in the judgment of Trgo v. Croatia ... as regards the acquiring of ownership by adverse possession in respect of immovable property that was, by the acts of the former authorities, transferred from [private] ... to social ownership.” 55 .     The Supreme Court reiterated the same view in cases nos.   Rev ‑ 158/2017-2 of 7 May 2019 in respect of a civil action brought on   27 February 2014, Rev-x 974/2017-2 of 7 May 2019 in respect of a civil action brought on 28 September 2004, Rev-578/2017-2 of 7 May 2019 in respect of a civil action brought on 29 November 2010, Rev-389/2014-5 of 29 May 2019 in respect of civil action brought on 9 November 2011, and Rev-2771/2013-2 of 13 August 2019 in respect of a civil action brought on   23 August 2011. As regards possession in good faith 56.     The Supreme Court of Croatia has consistently held that the mere fact that someone other than the possessor was recorded in the land register as the owner of a piece of real estate does not render his or her possession as being in bad faith and thus does not prevent such a possessor from acquiring ownership of that property by adverse possession. For example, in cases nos. Rev-2426/1990 of 15 February 1991 and Rev-1209/2016-3 of 11   February 2020 the Supreme Court held that:   “... the [lower] courts correctly concluded ... that the possession of the plaintiffs’ ancestors had been in good faith, regardless of the fact that the appellant’s ancestors were recorded in the land register as the owners of the disputed real estate. In particular, next to the established fact that the plaintiffs’ ancestors always behaved as the owners of the disputed real estate, and that the appellant’s ancestors never disputed their right of ownership, even though they exercised [it] in plain view of them, the mere fact that the appellant’s ancestors were recorded in the land register as the owners does not render the possession of the plaintiffs’ ancestors as being in bad faith. The plaintiffs’ ancestors had no reason to consult the land register to establish the land-register status of the property. On the basis of the above circumstances, they had a well-founded belief that they were the owners. Therefore, their failure to consult the land register cannot be held against them [by way of arguing] that they could not have remained unaware [of the fact] that the owners [as recorded] in the land register were the appellant’s ancestors.” 57.     However, in case nos. Rev-1719/2013 of 21 September 2016 and Rev-830/2014-2 of 16 July 2019 the Supreme Court held that the concerned possessors of immovable property had lost the possibility to claim to be acting in good faith after they, by participating in certain land registry proceedings, had learned that the property they had possessed thus far was not recorded under their name in the land register. 58 .     The Government referred to judgment of the Zagreb County Court no. Gž-1537/16-3 of 15 January 2019, in which that court held that the party opposing a possessor’s claim for acquiring ownership by adverse possession was not required to prove the possessor’s bad faith if from the possessor’s own testimony it followed that his or her possession had been in bad faith. civil procedure act 59 .     The Civil Procedure Act ( Zakon o parničnom postupku , Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77, with subsequent amendments, and Official Gazette of the Republic of Croatia no.   53/91, with subsequent amendments), in its section 2(1), provides that civil courts must decide within the bounds of the claim lodged within the proceedings. Section 354(2)(12) provides that deciding ultra or extra petitum in a judgment always constitutes a serious breach of civil procedure and grounds for appeal and an appeal on points of law. 60 .     Section 186(3) embodies the principle of iura novit curia by providing that civil courts are not bound by the legal basis indicated by the plaintiffs for their claims. 61 .     The text of paragraphs 2-4 of section 382 of the Civil Procedure Act, as in force at the relevant time, which concerned the remedy of an extraordinary appeal on points of law, is reproduced in Mirenić-Huzjak v.   Croatia (dec.), no.   72996/16, § 26, 24 September 2019. Such an appeal could have been lodged, inter alia , in the event that a decision in the civil proceedings had depended on the resolution of a point of substantive or procedural law in respect of which there had existed established case-law, but that case-law had had to be revisited in view of changes in the legal system occasioned by decisions of the European Court of Human Rights. 62 .     The relevant provision of the Civil Procedure Act concerning the reopening of proceedings following a final judgment of the European Court of Human Rights (namely, section 428a) is cited in Lovrić v. Croatia (no.   38458/15, § 24, 4 April 2017). Other relevant legislation 63 .     The relevant provision of the 1999 Constitutional Court Act is cited in Radomilja and Others , cited above, § 46). Section 53 provides that primary legislation (that is to say statutes) can only be invalidated as unconstitutional by the Constitutional Court with ex nunc – that is, with pro   futuro – effect, meaning that the legal effects that it produced before being invalidated will remain. Secondary (subordinate) legislation can be invalidated with ex tunc effect under certain, rather restrictive, circumstances, in which case the effects that it produced before being invalidated will be erased. 64 .     The Act on Compensation for, and Restitution of, Property Appropriated During the Yugoslav Communist Regime ( Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine , Official Gazette nos. 92/96, with subsequent amendments – “the Restitution Act”), which entered into force on 1 January 1997, enabled former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants or a spouse), to obtain under certain conditions either the restitution of or compensation for property appropriated under the socialist regime. THE LAW ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 to THE CONVENTION 65 .     The applicant complained that the domestic courts’ decisions dismissing his claim to be declared the owner of the property in dispute had been in breach of his right to the peaceful enjoyment of his possessions. He relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems 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.” Admissibility 66.     The Government disputed the admissibility of this complaint, arguing that Article 1 of Protocol No. 1 was not applicable to the present case and that the applicant had failed to exhaust domestic remedies. Applicability of Article 1 of Protocol No. 1 (a)    The parties’ arguments (i)       The Government 67 .     The Government submitted that the applicant’s claim to be declared the owner of the property in dispute did not have a sufficient basis in national law and thus could not qualify as an “asset” and hence a “possession” to which Article 1 of Protocol No. 1 would be applicable. In this regard they first submitted that when examining this issue, the period between 1941 and 1991 had to be excluded. In the alternative, they contended that the applicant’s claim could not be considered to constitute a “possession”, even if the Court were to take that period into account. 68.     In the Government’s view the applicant had not relied on the period between 1941 and 1991 when lodging his counterclaim (see   paragraph   12   above). Likewise, in the domestic proceedings he had never relied on the original version of section 388(4) of the 1996 Property Act (see paragraph 51 above) and had in both of his appeals against the first-instance judgments accepted the statutory prohibition on acquiring ownership of socially owned immovable property by adverse possession in that fifty-year period (see paragraphs 26 and 32 above). 69.     Thus, unlike in the Trgo case, it could not be said that the applicant before the domestic courts had “reasonably relied on legislation, later on abrogated as unconstitutional” (see Trgo , cited above, §   67). 70.     The domestic courts could not have taken the said fifty-year period into account proprio motu because under domestic law they had been bound by the factual basis of the applicant’s counterclaim, which had not included that period. In those circumstances, taking that period into account would have meant deciding beyond the scope of the case and would have constituted a serious breach of civil procedure (see paragraph 59 above). 71.     Furthermore, although the first-instance judgment in his case had been delivered on 17 June 2014 – that is, five years after the Court’s judgment in Trgo – the applicant for the first time relied on Trgo in the extraordinary appeal on points of law that he had lodged on 27 April 2015 (see paragraph 34 above). 72 .     In this regard the Government referred to the Court’s view, expressed in the Grand Chamber judgment in Radomilja and Others , that the temporal element was of central importance for acquiring ownership by adverse possession and that the later addition of a period amounting to more than fifty years to the factual basis of the complaint had therefore to be seen as changing the substance of that complaint (see Radomilja and Others , cited above, §   132). 73 .     The Government argued that the same should apply to the proceedings before the Croatian Supreme Court and that the applicant’s reliance on Trgo at as late a stage as in his appeal on points of law should be seen as changing the su