CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 juin 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase }     Communicated on 11 June 2015   FIRST SECTION Application no. 21372/15 Jadranka CIGANOVIĆ and Petar CIGANOVIĆ against Croatia lodged on 29 April 2015 STATEMENT OF FACTS The applicants, Ms Jadranka Ciganović and Mr Petar Ciganović, are Croatian nationals of Serbian ethnic origin, who live in Stolberg, Germany. They are represented before the Court by Mr D. Jovanić, a lawyer practising in Rijeka. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants were the owners of a summer house in Tribunj, Croatia. In 1990-ies they fled Croatia, in fear for their personal safety. On 14 March 2003 one R.A. falsified an agreement on sale of the applicants’ house and entered his ownership into the Land Register of the Šibenik Municipal Court. On 7 April 2003 R.A. sold the house to one T.P. who then sold it to V.C. In 2006 the applicants brought a civil action in the Velika Gorica Municipal Court, seeking that the above-said sale contracts be declared null and void. On 9 March 2009 the Zagreb Municipal Criminal Court found R.A. guilty of falsifying the contract of 14 March 2003 on sale of the applicants’ summer house, and sentenced him to two years’ imprisonment. On 26 November 2009 the Velika Gorica Municipal Court established that both above-said sale contracts were null and void. However, this judgment was reversed by the Velika Gorica Municipal Court in respect of the sale contract of 7 April 2003. The relevant part of this judgment, referring to the contract of sale between R.A. and T.P. and T.P. and V.C. and their acquisition of property, reads: “... Such a contract is not null and void, because a contract on sale of the other’s object obliges the contractual parties (section 460 of the Obligations Act). In a situation where the plaintiffs, as the owners of the real estate property, did not conclude the contract on its sale, the sale contract is non-existent because it has not been concluded and therefore it cannot be null and void, but non-existent and with no legal consequences in respect of the plaintiffs. ... Even though, in principle, the ownership could not be acquired from a non-owner on the basis of a deed ( pravni posao ) because no one can transfer on the other the right that he does not have ... there is an exception to this principle and that is ‘when the acquiring of ownership in good faith enjoys protection’. The preconditions to be fulfilled for acquiring the ownership in good faith from a non-owner are contained in sections 122 to 124 of the Ownership Act. According to the principle provision in section 122 paragraphs 1 and 2 of the Ownership Act, the one who acts in good faith with trust in Land Register, not knowing that what is recorded in it is not complete or is different form the real situation, enjoys as regards such acquiring the protection under the provisions of that Act. Furthermore, section 123 paragraph 1 of the Ownership Act provides that the one who has acquired property becomes the owner of it by his registration in the Land Register as if he had acquired it from the true owner if he, acting in good faith and trusting the land Register, has acquired [property] from the person registered as the owner in the Land Register, even though that person is not the true owner and if such recording in the Land Registry is not deleted as invalid. Thus, in the case at issue (by enactment of the Ownership Act on 1 January 1997) the principle that none can transfer on the other more rights that he has, has been overruled. It is important to note that in the case of acquiring ownership on the basis of the principle of trust in the Land Register it is not the acquiring of ownership on the basis of a deed, but on the basis of statue, that is to say on the basis of trust in the Land Register in which case, the [ownership] of property is acquired, on the basis of an express statutory provision, as if from its true owner with a condition subsequent ( raskidni uvjet ) – that the recording of the new ownership is not deleted as invalid (within the meaning of sections 8 paragraph 5 and section 129 of the Land Register Act, the Official Gazette nos. 91/96, 68/98, 137/99, 73/00, 114/01, 100/04, 107/07, 152/08 and 126/10 – hereinafter the “LRA”). Contrary to this, the legal consequences of the [principle] of trust in Land Register do not apply in respect of a person who acquired [property] in bad faith. His title is not protected and it is possible to bring an action to delete his ownership from the land register as long as the right registered in land register exists which right has been violated by recording of an untrue title of untrue predecessor of the third person who acquired title and acted in bad faith. The burden of proof that the third person who derived his right from untrue record in the Land Register of his predecessor is on the plaintiff since good faith is presumed.” The applicants’ appeal on points of law and their constitutional complaint were declared inadmissible. COMPLAINT The applicants under Article 1 of Protocol No. 1 that they have been deprived of peaceful possession of their property.     QUESTIONS TO THE PARTIES 1.     Have the applicants been deprived of their possessions in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?   2.     If so, was that deprivation necessary to control the use of property in accordance with the general interest?   3.     In particular, did deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?