PARTIALLY DISSENTING OPINION OF Mr. E. BUSUTTIL

     With regret, I demur from the conclusion reached by the majority

that there has been no violation of Article 1 of Protocol No. 1 in the

present case.

     In its Pressos Compania Naviera S.A. judgment, the Court held

that retrospective legislation having the aim and effect of depriving

the applicants of their claims for compensation was not justified, such

fundamental interference being inconsistent with the preservation of

a fair balance between the interests at stake - the public interest,

on the one hand, and the interest of the individual applicants, on the

other.

     In para. 75 of the Report, the majority would appear to accept

the general conclusion in Pressos Compania Naviera S.A. as far as the

second sentence of the first paragraph of Article 1 of Protocol No. 1

is concerned, but go on to assert that the same conclusion does not

necessarily apply to legislation purporting "to secure the payment of

taxes" in terms of the second paragraph of the same Article.  The

argument, however, is left suspended in mid-air for no explanation of

any kind is provided in support of this latter proposition.

     To my mind, this statement is in contradiction with the well-

established case-law of the Court that the second paragraph of

Article 1 of Protocol No. 1 must be construed in the light of the

general principle laid down in the Article's first sentence of the

first paragraph.  Thus, while taxation can lawfully interfere with the

right of natural or legal persons to the peaceful enjoyment of their

possessions in the general interest of establishing a more equitable

distribution of wealth in the community, any such interference must

achieve a 'fair balance' between the demands of the general interest

of the community and the requirements of the protection of the

individual's fundamental rights.  The concern to achieve this balance

is reflected in the structure of Article 1 as a whole, including

therefore the second paragraph.  In particular, there must be a

reasonable relationship of proportionality between the means employed

and the aim pursued by any measure depriving a person of his

possessions.

     In the present case, it is evident from both the timing and

retrospective character of the legislation that the intention of

Parliament in passing the 1991 and 1992 Acts was simply that of

interfering with pending judicial proceedings.  Section 53 of the

Finance Act 1991 effectively stifled the actions for restitution of two

of the applicant societies and Section 64 of the Finance Act 1992

effectively extinguished the judicial review proceedings and further

restitution proceedings by all the applicant societies.  Indeed, the

majority of the Commission itself found that this constituted a breach

of Article 6 para. 1 of the Convention in that the legislative organ

of the State intervened in a manner which deprived the applicant

societies of their right to a fair and independent determination of the

matter in issue before a court of law.

     If this is so, then the subsequent intervention by Parliament to

frustrate pending judicial proceedings must equally be material to the

assessment as to whether such intervention respected the requisite fair

balance between the demands of the general interest of the community

and the requirements of the protection of the individual's fundamental

rights.  For this fair balance to be properly respected, it seems to

me that the general public interest must be embodied in legislation

which is not flawed at its inception, as was the case here with the

Income Tax (Building Society) Regulations 1986 which were ultra vires

the enabling powers conferred on the Revenue by Section 40 of the

Finance Act 1985.  As Lord Oliver (delivering the judgment of the

majority in the House of Lords) observed, it is "unfortunate that the

Revenue, through Parliament, should have chosen by secondary rather

than primary legislation to take what was, on ordinary principles, the

very unusual course of seeking to tax more than one year's income in

a single year of assessment".

     Furthermore, it is neither fair nor even-handed to re-invent the

public interest at different moments in time through subsequent

retrospective legislation validating otherwise invalid Regulations.

If the jurisdiction of the courts were to be ousted in this fashion,

the ordinary citizen would be virtually left at the mercy of his rulers

and become subject to the misrule of law rather than to the Rule of

Law.

     Accordingly, for the State to legislate with retrospective effect

in order to deprive the applicants of their claims for compensation

constitutes such a fundamental interference with the applicant

societies' rights as to be incompatible with the preservation of a fair

balance between the interests at stake, and thus amounts to a violation

of Article 1 of Protocol No. 1 of the Convention.

                                                 (Or. English)