SEPARATE OPINION OF JUDGE Z AGREBELSKY JOINED BY JUDGE JAEGER

(Translation)

I regret that I am unable to adhere to the reasoning adopted by the majority of the Grand Chamber.

The acceptance of the agreement between the applicant and the Government does not pose any problems in my opinion. The applicant has obtained nearly everything she sought. The fact that the Court has already found a violation of Article 1 of Protocol No. 1 in the applicant ' s case and has given ample reasons for that finding means that there is no cause to continue the proceedings in the interests of respect for human rights (Article 37 of the Convention). A judgment dealing solely with the award to be made for pecuniary damage, the only issue that still had to be resolved, would be of no interest. Indeed, that is the reason why I voted in favour of striking the application out of the list of cases following the conclusion of the friendly settlement. In my view, that conclusion should also have been reached even if the Government had done nothing, in terms of taking general measures, after the judgment on the merits.

However, the interest of the present judgment and the reason for my separate opinion plainly lie elsewhere, as the lengthy statement of facts and the Court ' s arguments indicate. The main issue relates to the measures taken and to be taken by the State in order to afford redress for the violations of Article 1 of Protocol No. 1 that have already occurred and to prevent any breaches that might occur in future. Such measures, at this stage of the proceedings, have no connection with the applicant ' s situation.

The Court ' s focus on general measures is naturally linked to the systemic nature of the violation and to the so-called pilot-judgment procedure, whereby it adjourns its examination of applications concerning similar complaints to those being dealt with in the “pilot” case. Adjournment is clearly justified by the capacity of the measures to be taken by the Government to resolve the systemic problem and to afford redress for violations forming the subject of pending cases. Indeed, following the logic behind the pilot-judgment procedure, the Court took care in its judgment in Broniowski v. Poland (merits) ([GC], no. 31443/96, § 194, ECHR 2004-V) to explain the precise scope of the general measures to be taken, in stating that “ the respondent State must, primarily, either remove any hindrance to the implementation of the right of the numerous persons affected by the situation found, in respect of the applicant, to have been in breach of the Convention, or provide equivalent redress in lieu ”.

Poland has abandoned the collectivist communist system and moved to a market economy, the fundamental requirement of which is the right to private property. It is now in the process of transforming its economic system. The social problems arising during the transition are obviously

complex, so it is understandable that they cannot be addressed from one day to the next. The Constitutional Court has already found on many occasions that the statutory rent system is unconstitutional. Our Court ' s judgment on the merits has therefore encountered a climate favourable to the reforms needed to overhaul the Polish system in accordance with the country ' s new political, social and legal order. It is thus perfectly natural that a number of legislative measures have been taken and that others are envisaged in the Government ' s programme of action.

But from the Court ' s point of view, what can be said of the impact of the measures that have been taken and are envisaged on pending (adjourned) cases and on similar applications that might be lodged in future?

The reply, to my mind, is clear. The Court is not competent (and does not have the necessary knowledge) to express a view in the abstract and in advance on the consequences of the reforms already introduced in Poland and to give a vague positive assessment of a legislative development whose practical application might subsequently be challenged by new applicants. What, for example, is “decent profit”, as referred to in the Constitutional Court ' s judgments and the statements by the Government in the friendly settlement? What is its value in relation to the claims that a Polish landlord might submit to the Court, which would then have to examine and rule on them? And what is the relevance in the present judicial proceedings of the Government ' s promises “ to continue to implement as soon as possible ...” or “to continue their endeavours ...”?

These, to my mind, are undertakings which could be taken into consideration by the Committee of Ministers in its initial interim resolution. The Court, however, should be wary of making comments on that issue, both on account of the need to exercise caution in relation to future applications it might have to examine impartially in adversarial proceedings and so as not to disturb unduly the balance provided in the Convention system between its own role and that of the Committee of Ministers.

Furthermore, I consider it relevant to draw attention, mutatis mutandis , to the Court ' s approach in its judgment in Verein g egen Tierfabriken Schweiz ( VgT ) v. Switzerland (no. 32772/02, 4 October 2007 – now referred to the Grand Chamber), where it did not conceal its somewhat critical view of a decision by the Committee of Ministers to close its procedure for supervising the execution of a judgment of the Court solely on the basis of “the existence of the remedy of a request for revision, without awaiting its outcome”. The difference between a “possibility” or “undertaking” and its “realisation”, again following the logic behind the pilot-judgment procedure, should in my view be taken int o account in connection with the

criteria for assessing a friendly settlement, as adopted by the Court in Broniowski v. Poland (friendly settlement) ([GC], no. 31443/96, § 36, ECHR 2005-IX). The Court observed in that case that “i n view of the systemic or structural character of the shortcoming at the root of the finding of a violation in a pilot judgment, it is evidently desirable for the effective functioning of the Convention system that individual and general redress should go hand in hand ” (see also Wolkenberg and Others v. Poland ( dec .), no. 50003/99, § 35, 4 December 2007).

However, similar cases already before the Court which have been adjourned (see paragraph 247 of the judgment on the merits) pending a solution in the form of Government initiatives following the pilot judgment are not affected in any way by the reforms introduced in Poland . I am referring to the fact that the applicants in such cases are seeking compensation for a violation of which they claim to be the victims.

In the present case, the Government ' s response is to be found at the end of the friendly settlement, where they acknowledge “their obligation to make available to other persons in a similar situation some form of redress for any damage caused to them ...”. However, the Government add that they “ consider that the measures provided for in the above-mentioned Bill will be capable of furnishing appropriate redress ” . A Bill, t hen, which is already appropriate and sufficient in their view, but whose content, it must be added, may change during its passage through Parliament, and which the applicants concerned will have had no opportunity to discuss (even less than Mrs Hutten- Czapska ). I have no difficulty in concluding that, for the time being, there will be no impact on the other cases, which will consequently remain pending ten years after being brought before the Court.

The Court adopted the pilot-judgment procedure (with, as its corollary, the individual yet at the same time “pilot” friendly settlement) in an effort “ to facilitate the most speedy and effective resolution of a dysfunction established in national human rights protection. Once such a defect has been identified, it falls to the national authorities, under the supervision of the Committee of Ministers, to take, retroactively if appropriate ... , the necessary remedial measures in accordance with the subsidiary character of the Convention, so that the Court does not have to repeat its finding in a lengthy series of comparable cases ” (see Broniowski (merits), cited above, § 193). That objective has clearly not been achieved. As is rightly pointed out in paragraph 43 of the judgment in the present case, when the Court resumes its examination of the pending cases, it will review them on a case-by-case basis, as usual.

As to the “ effective resolution of a dysfunction established ” and the solution of the problem in relation to other applicants, the effect I can see is a weakening – at least in terms of length of proceedings – of the protection of the rights of individuals availing themselves of their right of access to the Court (Article 34 of the Convention) and, as a consequence, an unjustified advantage for the respondent Government, who have had the good fortune to see the Court adopt the pilot-judgment procedure and adjourn its examination of other cases. For no apparent reason, other Governments in other situations involving a systemic violation have not been so fortunate (see Scordino v. Italy ( no. 1 ) [GC], no. 36813/97 , ECHR 2006-V, or Driza v. Albania , no. 33771/02, 13 November 2007).

I should like to add a few concluding remarks. A procedure such as the one which resulted in the Court ' s judgment in the present case, and which took on the aspect of a Committee of Ministers procedure, calls into question the Court ' s role and authority without entailing any benefits for applicants, the functioning of the Court and human-rights protection in general. Execution of the operative provisions of the pilot judgment will still have to wait, notwithstanding the positive attitude of the respondent Government and the Court ' s direct involvement through the negotiation of a friendly settlement, which in turn purports to be of a “pilot” and hence “systemic” nature. The Court has included in the operative provisions of the pilot judgment an obligation for the State to take general measures to remedy the systemic problem and links its acceptance of the friendly settlement to the implementation of such measures, yet at the same time, and not without some contradiction, it confines itself to taking note of (and appreciating) what is merely the start of a course to be pursued.

In my view, the judgment in the present case raises the issue of whether the operation of the pilot-judgment procedure, with the adjournment of similar cases, has proved to be coherent and productive in relation to the aims pursued by the Court.