PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY

As regards Article 6 para. 1 of the Convention

1.     I agree that there has been a violation of the Convention in

that the applicant did not receive a fair hearing before an impartial

tribunal.

As regards Article 1 of Protocol No. 1 to the Convention

2.     The applicant had a road built on his property against his will

but for the benefit of neighbouring private individuals, who were given

a right of way over his property. He did not receive any financial

compensation, it being considered that he also would benefit from the

road (para. 34 of the Report). On the contrary he was obliged to

contribute to the costs of the road. When all avenues of appeal were

exhausted he signed, under protest, the relevant road agreement in

order to reduce the extent of his financial contribution because

signature of the agreement qualified him for a small subsidy and

low-interest loan.

3.     A first preliminary question is whether the construction of the

road and creation of the right of way can be categorised as a

deprivation of possessions under paragraph 1 of Article 1 of

Protocol No. 1 or whether it was a control of the use of property

within the meaning of paragraph 2 of that Article. On balance, I agree

with the majority that the measure more closely resembles a

deprivation. This was not a measure enabling a public authority to have

occasional access to a structure built on the land (such as an

electricity pylon) in the public interest. It was, rather, the

deprivation of an essential attribute of private ownership, the right

to refuse entry to private individuals. At the same time it was a

transfer to those private individuals of the right to use the land for

the purpose of passage subject to the applicant's right to use the land

for that purpose and no other purpose.

3.     A second preliminary question is whether the Commission's

case-law to the effect that an obligation to contribute to road costs

is a "contribution" within the meaning of paragraph 2 of Article 1

(Application No. 7489/76, D.R. 9 p. 114) is still valid. The Court has

recently, in the case of Gasus Dosier- und Fördertechnik GmbH v. the

Netherlands (Eur. Court H.R., judgment of 23 February 1995, to be

published in Series A no. 306-B), left open a particular question. That

question is whether the right of States to enact such laws as they deem

necessary for the purpose of "securing the payment of taxes" is, as the

wording may suggest, limited to procedural tax laws (that is to say:

laws which regulate the formalities of taxation, including the

enforcement of tax debts) or whether it also covers substantive tax

laws (that is to say: laws which lay down the circumstances under which

tax is due and the amounts payable) (para. 60 of the judgment). The

same question would appear to arise in relation to the State's right

to "secure" the payment of "other contributions". In my opinion the

word "secure" covers not only technical devices to make certain

("assurer" in the French text) that payment is made. It also carries

the broader meaning of obtaining, or satisfying oneself that one has

not only the means but the legal right to have the payment made.

Accordingly, the applicant's obligation to participate in the road

costs falls to be examined under paragraph 2 of Article 1.

4.     It is then necessary to examine in relation to both measures

(the deprivation of a property right and the obligation to make

contributions) whether a fair balance has been struck between the

demands of the general interest of stimulating forestry in the area and

the interest of the individual. In particular it is necessary to

examine whether the procedures in question afforded the applicant a

reasonable opportunity of putting his case to the responsible

authorities (Eur. Court H.R., Hentrich v. France judgment of 22

September 1994, paras. 44 and 49, to be published in Series A

no. 296-A; Agosi v. the United Kingdom judgment of 24 October

1986,-Series A no. 108, paras. 52 and 55; the above-mentioned Gasus

Dosier- und Fördertechnik GmbH judgment, paras. 62 and 73).

5.     The following features of the procedures occurring after

10 May 1990 seem relevant to this assessment:-

(i)    The proceedings before the Expert and Trustees and before the

       Land Court took place against the background that the applicant

       had not been summonsed to the meetings arranged by the Forestry

       Board, although his address was known.

(ii)   The Forestry Board's plan had a significant bearing on the

       final outcome of the proceedings before the Expert and Trustees

       and the Land Court, because, as conceded by the Government

       (para. 104 of the Report), only "weighty" reasons could lead to

       its amendment.

(iii)  The applicant did not have an identifiable opponent at any

       stage. Before the Land Court his de facto opponents were the

       Forestry Board and the Expert, who had drawn up or upheld the

       plan and list of contributions. However, they were not seen as

       opposing parties. The Expert was heard as an independent expert

       rather than as an interested party.

(iv)   The applicant had no minutes of the proceedings that had been

       arranged by the Forestry Board, notwithstanding that he needed

       "weighty" reasons to upset the Board's plan.

(v)    The applicant was given no written notice of the list of

       contributions.

(vi)   The Land Court did not satisfy the requirement of impartiality

       contained in Article 6 para. 1 of the Convention.

6.     Taking "a comprehensive view of the applicable procedures" (the

above-mentioned Agosi judgment, para. 55), it appears to me that the

applicant's original disadvantage in not being summonsed to the

meetings arranged by the Forestry Board was exacerbated by numerous

features of the proceedings that followed. I cannot conclude that he

had a reasonable opportunity of putting his case to the competent

authorities.

7.     Accordingly, the procedural requirements of Article 1 of

Protocol No. 1 were not observed, with the consequence that no fair

balance was struck between the demands of the general interest and the

interest of the individual. For these reasons I voted for violations

of the Convention on both aspects of the issue under that provision.