GASUS DOSIER- UND FÖRDERTECHNIK GmbH v. the NETHERLANDSDISSENTING OPINION OF MR. H.G. SCHERMERS

Doc ref: • ECHR ID:

Document date: October 21, 1993

Doc ref: • ECHR ID:

Document date: October 21, 1993

Cited paragraphs only

DISSENTING OPINION OF MR. H.G. SCHERMERS

I agree with the majority of the Commission that the

Netherlands's legal rules on the "bodemrecht" do not infringe the

Convention. In fact I support the majority's reasoning up to para. 60

of the Report.

However, deprivation of property, even if legal, should be

executed in a fair and non-discriminatory manner. The wide margin of

appreciation which the Governments have under Article 1 of

Protocol No. 1 remains under the supervision of the Convention organs.

In the present case the possessions of Atlas were sold for

500,000 Dutch guilders. This amount was arbitrarily divided between

the two largest creditors, the tax authorities and the fiduciary owners

of Atlas' assets. Gasus, as the third largest creditor and holding a

security right which is, in my opinion, equivalent to that of the

fiduciary owners, did not receive any part of these proceeds. This

fundamentally different way of compensating one creditor holding

ownership from another creditor also holding ownership infringes in

my opinion the general principles underlying the European Convention

of Human Rights which are by their nature general principles of

international law.

I therefore conclude that there has been a violation of Article 1

of Protocol No. 1.

(ORG. E)

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