PARTLY DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KOVLER

(Translation)

I voted against point 6 of the operative provisions as I am of the opinion that the applicant in the present case suffered pecuniary as well as non ‑ pecuniary damage.

The reason invoked by the majority for refusing any award in respect of the pecuniary damage sustained by the applicant is that it “does not discern any causal link between the violations found and the pecuniary damage claimed by the applicant” (see paragraph 92).

Again in the view of the majority, the lack of a causal link between the violation of Article 1 of Protocol No. 1 and the compensation claimed for pecuniary damage stems from the fact that the breach of the applicant ' s property rights was of a procedural nature (paragraph 65):

“In the present case, neither the protection of the bona fide purchaser nor the general interest of preserving legal certainty are sufficient to outweigh the consideration that the applicant, who lacked legal capacity, was dispossessed of her home without being able to participate effectively in the proceedings and without having any possibility to have the proportionality of the measure determined by the courts. It follows that, because of the lack of procedural safeguards, there has been a violation of ... the Convention ... ”

I am not wholly persuaded by the distinction thus drawn between the legal consequences of a substantive violation of Article 1 of Protocol No. 1 and those of a procedural violation. Furthermore, the majority itself appears to concede that the procedural violation was accompanied by a substantive violation, when it states (paragraph 76) :

“It has doubts as to whether the debtor ' s interests are adequately taken into account where a payment order for a comparatively minor sum issued in summary proceedings can serve as a basis for the judicial sale of real estate of considerable value.”

Moreover, the Court in the end finds a violation of Article 1 of Protocol No. 1, without specifying whether it is substantive or procedural in nature (paragraph 79).

According to the Court ' s settled case-law, any violation of the right to peaceful enjoyment of one ' s possessions calls in principle for reparation to be made in the form of restitutio in integrum . As it has reiterated on several occasions, the most appropriate means of redress for a violation of Article 1 of Protocol No. 1 is for the victim to have his or her ownership rights restored (see Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34 , Series A no. 330 ‑ B ); see also, for example, Vontas and Others v. Greece , no. 43588/06, § 50 , 5 February 2009 ).

In the present case, the difficulty of implementing the principle of restitutio in integrum lies in the fact that the applicant ' s apartment was sold almost ten years ago, on 17 November 1999. Is this sufficient reason not to award the applicant compensation for pecuniary damage?

The Court has always maintained that “[i] f the nature of the breach allows of restitutio in integrum , it is for the respondent State to effect it .. . If, on the other hand, national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate ” (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 33 , ECHR 2000 ‑ XI ).

I am of the view that, in the present case, the victim should have been awarded just satisfaction for pecuniary damage, irrespective of whether the violation of Article 1 of Protocol No. 1 was substantive or procedural in nature.

In order to repay the applicant ' s debts to her creditors, totalling a little over EUR 10,000 (see paragraphs 6 to 8), the domestic authorities organised the compulsory sale of the apartment she owned in Vienna, with a surface area of 115 square metres, at the ridiculously low price of approximately EUR 59,000 (see paragraph 10).

Admittedly, it is difficult for the Court to assess the pecuniary damage sustained by the applicant, nor is it its task to do so. One way forward might therefore have been to reserve the question of application of Article 41 until such time as the parties had arrived at a fair and mutually acceptable solution.

One thing is certain – the award of EUR 30,000 for non-pecuniary damage (see point 5 (a) of the operative provisions) is not – by any means – sufficient to redress the injustice suffered by the applicant.