DISSENTING OPINION OF JUDGE SPIELMANN

1. I disagree with the majority . Through its judgment in this case the Court has departed from its settled case-law, a case-law that, moreover, is in conformity with the principles of international law on r e paration, initiated more than eighty years ago by the Permanent Court of International Justice in its judgment in the Case concerning the Factory at Chorzów [1] and confirmed by our Court in its judgment in the case of Papamichalopoulos v. Greece [2] . I refer to the principle of restitutio in integrum . This principle enshrines the obligation on a State that is guilty of a violation to make reparation for the consequences of the violation found . In the case concerning the factory at Chorzów ( judgment of 13 September 1928), the Permanent Court of International Justice held as follows:

“ The essential principle contained in the actual notion of an illegal act - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.” [3]

2. As my colleague Françoise Tulkens pointed out in her dissenting opinion, annexed to the judgment of 21 October 2008, the subject of the present referral to the Grand Chamber:

“It is not disputed that the situation in the instant case is that of an arbitrary deprivation of possessions ... [and that] the act of the respondent State which the Court has held to be contrary to the Convention was not an expropriation that would have been legitimate but for the failure to pay reasonable compensation; on the contrary, it was an unlawful taking by the State of the applicants ' land (see paragraphs 94-95 of the principal judgment of 8 December 2005) . ”

3. Where there is unlawful taking, there is a violation of international law and, consequently, a corresponding obligation to compensate for the loss sustained in its entirety. Indeed, in this Grand Chamber judgment , the Court “ reiterates that it is impossible to equate lawful expropriation and constructive expropriation, at issue in the instant case ” ( see paragraph 95 of the judgment) and that constructive expropriation “seeks to confirm a factual situation arising from unlawful acts committed by the authorities and thus permits the latter to profit from their illegal conduct ” (see paragraph 94 of the judgment).

4. I have already drawn attention on several occasions to the importance of the princip l e of restitutio in integrum [4] as enshrined in the case-law of international and arbitration courts (r eferred to in paragraphs 49 to 52 of the judgment), and even in the Draft Articles on State Responsibility, drawn up by the International Law Commission of the United Nations (mentioned in paragraphs 53 and 54 of the judgment) [5] . There is no need to return to the arguments here.

5 . Until now, our case-law has been in perfect harmony with these principles.

6 . In the Court ' s case-law, as in general international law, the question of whether expropriation is “lawful” or “unlawful” is relevant in calculating compensation. The Court has held on numerous occasions that t he issue of whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the individual ' s fundamental rights becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary [6] .

7 . To date, the Court has always applied the principle set out in the Chorzów Factory judgment [7] , notably in the Papamichalopoulos case [8] , where it held :

“ 34. The Court points out that by Article 53 (art. 53) of the Convention the High Contracting Parties undertook to abide by the decision of the Court in any case to which they were parties; furthermore, Article 54 (art. 54) provides that the judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach.

The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (art. 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 50 (art. 50) empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate ” .

...

36. The act of the Greek Government which the Court held to be contrary to the Convention was not an expropriation that would have been legitimate but for the failure to pay fair compensation; it was a taking by the State of land belonging to private individuals, which has lasted twenty-eight years, the authorities ignoring the decisions of national courts and their own promises to the applicants to redress the injustice committed in 1967 by the dictatorial regime.

The unlawfulness of such a dispossession inevitably affects the criteria to be used for determining the reparation owed by the respondent State, since the pecuniary consequences of a lawful expropriation cannot be assimilated to those of an unlawful dispossession. In this connection, international case-law, of courts or arbitration tribunals, affords the Court a precious source of inspiration; although that case-law concerns more particularly the expropriation of industrial and commercial undertakings, the principles identified in that field are valid for situations such as the one in the instant case .” [9]

8 . In the case of Papamichalopoulos , the Court decided on the compensation to be awarded on the basis of the “fundamental principle” set out in the Chorzów Factory judgment [10] and held that the applicants were entitled to restitution of their land and to compensation for loss of enjoyment of the property or, if that were impossible, to damages corresponding to the current value of their land, plus an amount in respect of indirect damage . The Court thus took into consideration the current value of the disputed land [11] .

9 . The rule laid down in that judgment is applicable to unlawfu l expropriations . It can be found, in particular, in the judgments Belvedere Alberghiera S.r.l. v . Italy [12] and Carbonara and Ventura v . Italy [13] . This position was endorsed by the Grand Chamber – albeit as an obiter dictum , in the judgment on just satisfaction in the case of Th e former King of Greece and Others v. Greece [14] and, more recently, – again in an obiter dictum – in paragraphs 250 to 254 of the Scordino (n o. 1) judgment [15] . Even more recently, a Section of the Court adopted it as the r atio decidendi in the case of Scordino v . Italy (n o. 3) [16] .

10 . To sum up, in the case of unlawful expropriation, the basic principle is that of restitutio in integrum : the consequences of the violation must be totally eliminated, either by the restoration of the statu s quo ante , or by compensation for the d is possession and of all indirect loss .

11 . The Grand Chamber ' s judgment in the instant case confirms the Chamber judgment with regard to the reversal of the case-law , thus breaking with an approach that had been in perfect harmony with the rules and principles of international law [17] . At the same time, it differs from the Chamber judgment in taking the years 1982 and 1983 as the critical dates ( see paragraph 105 of the judgment), thus adopting a position that is even more restrictive than that of the Chamber.

12 . The total elimination of the consequenc es of the impugned interference implies that the applicants ought to have been placed in a situation that was equivalent to that in which they would have found themselves had there not been a breach of the State ' s obligations under A rticle 1 of Protocol No. 1. In retaining the date of the loss of ownership of the land as the key date, the majority has not taken account of the land ' s economic potential, which is of relevance in the context of full compensation for the damage sustained. In the instant case, the violation is a de facto expropriation , one that was unlawful irrespective of the lack of compensation. In international case-law, such a situation entails an obligation to pay compensation not only for the direct loss, but also for any derived loss. In the instant case, the expropriation has resulted in continued and adverse c onsequences on the right of property of the applicants, who have lived in a state of uncertainty with regard to the fate of their property .

13 . The Grand Chamb e r ' s decision, however, has the effect of setting aside the distinction between unlawful taking and lawful expropriation.

14 . This new approach is justified, notably in paragraphs 103 and 104 , by :

( 1) the concern to avoid unequal treatment of applicants depending on the nature of the public works constructed by the authorities ;

( 2) the wish to avoid assigning a punitive or dissuasive role to the compensation ;

( 3) developments in the domestic legislation .

15 . I find none of these three arguments, which the Grand Chamber has essentially adopted from the Chamber judgment, convincing.

As my colleague Françoise Tulkens pointed out in her dissenting opinion, already referred to, with regard to the first argument ( a fear of causing unequal treatment of applicants depending on the nature of the public works constructed by the authorities, which is not necessarily related to the potential of the land in its original state ),

“ It is, to say the least, odd to wish to correct an inequality of treatment, more virtual than real in the instant case, by reducing , in an arbitrary fashion, the compensation applicable to all the persons concerned by an unlawful dispossession. Further, in seeking to correct a possible inequality in treatment, the majority merely reintroduces another, that which now affects the applicants in this case with regard to the true state of affairs and to other applicants whose cases were dealt with previously. Finally, and more fundamentally, the very practice of “constructive expropriation”, a euphemism to describe what is in fact unlawful expropriation, leads to unpredictable and arbitrary results which deprive the individuals concerned of effective protection of their rights .”

Further, with regard to the second a rgument ( a refusal to assign a punitive or dissuasive role to compensation with regard to the respondent State ), my colleague Françoise Tulkens stated :

“ The second argument is the refusal to assign a punitive or dissuasive goal with regard to the respondent State to compensation for pecuniary damage. This is not the issue. Pecuniary damage would have such an aim or quality if the amount awarded had no link or relationship to the damage found. Yet this is not the case here, in that the compensatory function of the alleged damage is clearly established. Had they remained in possession of their land, the applicants could clearly have used or developed it in one way or another .”

Finally, with regard to the third argument (d e velopments in the domestic legislation) , Judge Tulkens correctly noted that :

“... a lthough this was not decisive for the purposes of their decision, the majority considers that it must take into consideration a “new fact” in the national system. In judgments nos. 348 and 349 of 22 October 2007, the Constitutional Court held that the domestic legislation had to be compatible with the Convention, as interpreted by the Court ' s case-law; in consequence, it declared unconstitutional section 5 bis of Legislative Decree no. 333 du 11 July 1992, as amended by Law no. 662 of 1996. Subsequently, the Finance Act (Law no. 244) of 24 December 2007 established that expropriation compensation for building land must correspond to the property ' s market value. Nothing in this case-law, which seems to concern primarily the place of the European Convention on Human Rights in the Italian constitutional system, or in the new law contradicts the Court ' s method of calculating compensation with regard to constructive expropriation in that, in both cases, the other types of damages are not taken into account .”

16 . For my part I consider that, through this judgment, the level of compensation applicable to all those affected by an unlawful dispossession has been reduced in an arbitrary fashion. The decision by which a domestic court takes note of the unlawful occupation of a plot of land and declares that there has been constructive expropriation does not have the effect of regularising the situation complained of, but merely confirms an illegal situation, which cannot subsequently be remedied in the absence of compensation that complies with the criteria applicable to cases of illegal deprivation of property.

17 . In accordance with the Court ' s case-law, if the expropriation is without title, then failing restitutio in integrum the compensation must reflect the idea of a total elimination of the consequences of the impugned interference and represent the full value of the property ( either by the restoration of the status quo ante or by compensation for the dis possession and all indirect damage ). If, on the contrary, the expropriation is legal and no t justified by legitimate “public interest” objectives, only compensation in full ( that is, the full market value of the expropriated property at the date of expropriation) can be regarded as reasonably related to the value of the property [18] . Legitimate objectives of “ public interest ” , such as pursued in measures of economic reform or measures designed to achieve greater social justice, may however call for less than reimbursement of the full market value.

18 . In the event of constructive expropriation, the compensatory function of the alleged damage had been clearly established. Had the applicants maintained ownership of their plots of land, they would have been at liberty to use or develop them .

19 . The criteria laid down in the Papamichalopoulos case-law ought to have been applied in the instant case, which concerns constructive - and thus illegal - expropriation. I should like to add that the fact that the applicants in this case did not request the restoration of the land before the domestic courts cannot be a decisive factor for the purposes of the Court ' s decision, given that restoration was impossible once public infrastructure ha d been constructed on the site.

20 . In sum, I consider that the compensation payable to the applicants ought to have reflected the idea of a total elimination of the consequences of the impugned interference and also reflected the full value of the property .

21 . In accordance with its own case-law, the Court, in order to fully compensate the damage incurred, ought to have awarded amounts that took into account the loss sustained which would not be covered by restitution in kind or payment in place of it. Accordingly, it is to be regretted that “the Court has departed from its case-law in this way, the consequence of which is to attenuate the dichotomy between the compensation policies applied to cases of lawful and unlawful dispossession ” [19] .

22 . I n 2007 P rofessor Paul Tavernier, in an article published in the Revue trimestrielle des droits de l ' homme , expressed the hope that, with regard to pecuniary damage, “the Court... [would ] refine its Papamichalopoulos case-law” [20] . In the instant judgment, the Court has departed from that case-law instead of refining it. It has now substantially modulated “the refusal to endorse the policy of fait accompli ” [21] . This is to be regretted. After all, the principles of international responsibility underlie A rticle 41 of the Convention [22] , and this judgment represents a dangerous precedent which has the potential to water down those princip l es.

[1] C.P.J.I., 13 September 1928, Case concerning the Factory at Chorzów ( Claim for Indemnity ) ( merits ) , S eries A n o. 17.

[2] Papamichalopoulos and Others v. Greece ( A rticle 50), 31 October 1995, S eries A n o. 330 ‑ B.

[3] See p age 47 of the judgment . On the scope of the principle, see Bin Cheng, General Principles of Law as Applied by International Tribunals (Preface by Georg Schwarzenberger) , Lond on , Stevens & Sons, 1953, r eprinted Cambridge , Cambridge University Press, 2006.

[4] See, in the following cases, the opinions that I prepared alone or with colleagues: Vladimir Romanov v . Russia , n o. 41461/02, 24 July 2008 ( joint concurring opinion of J u d ges Spielmann and Malinverni ); Polufakin and C herny s hev v . Russia , n o. 30997/02 ( concurring opinion of J u d ge Spielmann), 25 September 2008; Fakiridou and Schina v . Gr ee ce , n o. 6789/06, 14 November 2008 ( concurring opinion of J u d ges Spielmann and Malinverni ); Salduz v . Tur key [GC], n o. 36391/02, 27 November 2008 ( concurring opinion of Jud ges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska) ; Panovits v . C yprus , n o. 4268/04, 11 December 2008 ( joint concurring opinion of J u d ges Spielmann and Jebens); Pishchalnikov v. Russia, n o. 7025/04, 24 September 2009 ( concurring opinion of J u d ge Spielmann); Varnava and Others v. Turkey [GC] , 18 September 2009 ( concurring opinion of J u d ge Spielmann, joined by J u d ges Ziemele and Kalaydjieva ); Prezec v . Croati a , n o. 48185/07, 15 October 2009 ( partly dissenting opinion of J u d ges Spielmann and Malinverni).

[5] Article 35 of the Draft Articles on State Responsibility provides:

“ A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:

(a) is not materially impossible;

(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation .”

Article 36 of the same Draft Articles provides :

“ 1.  The State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution . ”

See J. Crawford, The International Law Commission’s Articles on State Responsibility . Introduction, Text and Commentaries, Cambridge , Cambridge University Press, 2002.

[6] The p rincip l e was laid down in the judgment in Iatridis v . Greece [GC], n o. 31107/96, § 58, E CH R 1999 ‑ II , and reaffirmed in Beyeler v . Italy [GC], n o. 33202/96, § 107, E CH R 2000 ‑ I . See also Belvedere Alberghieri (principal judgment ), § 55; Carbonara and Ventura (principal judgment ), § 62; Pasculli v . Italy , n o. 36818/97, § 81; Carletta v . Italy , n o. 63861/00, § 72, 15 July 2005; Scordino v . Italy (n o. 3) , cited above , § 83; and Guiso-Gallisay (principal judgment ), § 80 .

[7] Cited above .

[8] Papamichalopoulos and Others v . Gr ee ce , cited above .

[9] The Papamichalopoulos and Others ( A rticle 50) judgment is the most frequently cited in this area, but it was based on a pr incip l e that had been laid down in earlier case-law . In its judgment in Hentrich v . France (22 September 1994, S eries A n o. 296 ‑ A), the old Court found a twofold violation of A rticle 1 of Protocol No. 1 – firstly in that the legal basis of the impugned dispossession, resulting from a pr e- emption decision, did not offer sufficient guarantees against arbitra ry conduct (§ 42), and also because the amount of compensation due in that respect rendered the impugned interference disproportionate (§§ 47-49) – and held that, failing restitution of the disputed land, the compensation due was to be calculate d on the basis of the current market value of the land (§ 71). I t should be noted that the value of the land had not been altered by the buildings erected on it. The old Court subsequently “assessed on an equitable basis” … “ the damage flowing from the loss of the property and of the enjoyment of it ” ( Hentrich v. France ((Article 50), 3 July 1995, Series A no. 320-A).

[10] Cited above . For the application of the principle in the area of human rights, see Loukis G. Loucaides, “ Reparation for Violations of Human Rights under the European Convention and Restitutio in integrum ”, European Human Rights Law Review , 2008, pp. 182-192; A. Orakhelashvili, “ The European Convention on Human Rights and International Public Order ” , (2002-2003) 5 Cambridge Yearbook of European Legal Studies , p. 237, particularly p. 260.

[11] See M. Van Brutsem and E. Van Brutsem, “Les hésitations de la Cour européenne des droits de l’homme : à propos du revirement de jurisprudence en matière de satisfaction équitable applicable aux expropriations illicites”, Revue française de droit administratif , 2009, pp. 285-293, particularly p. 289.

[12] ( just satisfaction), n o. 31524/96 §§ 34-36, 30 October 2003.

[13] ( just satisfaction), n o. 24638/94, §§ 39-40, 11 December 2003 .

[14] The former King of Greece and Others v . Gr ee ce [GC] ( just satisfaction), n o. 25701/94, 28 November 2002.

[15] Scordino v. Italy (no. 1) [GC], no. 36813/97, ECHR 2006 ‑ V.

[16] ( just satisfaction), n o. 43662/98, §§ 32 et seq., ECHR 2007-III.

[17] For a critique of the Chamber judgment, see M. Van Brutsem and E. Van Brutsem, op. cit. , pp. 285-293.

[18] See Former King of Greece and Others v. Greece [GC] (just satisfaction), no. 25701/94, 28 November 2002 .

[19] M. Van Brutsem and E. Van Brutsem, op. cit. , p. 293.

[20] P. Tavernier, “La contribution de la jurisprudence de la Cour européenne des droits de l’homme relative au droit de la responsabilité internationale en matière de réparation – Une remise en cause nécessaire”, Revue trimestrielle des droits de l’homme , 2007, pp. 945-966, pp. 965-966.

[21] M. Van Brutsem and E. Van Brutsem, op. cit. et loc. cit.

[22] P. Tavernier, op. cit. et loc. cit.