CONCURRING OPINION OF JUDGE CABRAL BARRETO

(Translation)

Although I voted with the majority in finding that there has been a violation of A rticle 1 of Protocol No. 1 in this case, I am unable to follow its reasoning.

I am unable to accept the majority ' s reasoning on the following grounds :

1.I agree that, once acquitted, the applicant was entitled to have his property returned ; the domestic authorities have never challenged this longer contested in themselves; the applicant could therefore expect to receive compensation from the State, corresponding to the market value of the furs.

The applicant thus had a claim against the State .

However, the specific amount of compensation was not defined: in particular, the costs of auctioning the furs and the taxes to be deducted from the sale proceeds had to right.

The furs had been sold, for reasons which are no be taken into account in calculating the sum to be awarded to the applicant.

In short, the de b t towards the applicant had to be “liquidated” in order to become payable ; prior to the Supreme Court ' s decision of 20 May 2006, the amount that the State had to pay the applicant was not known and, in addition, the debt could not be the subject of enforcement proceedings.

In contrast to the situations examined in the judgments AGOSI v. the United Kingdom ( 24 October 1986, Series A no. 108 ) and Raimondo v. Italy ( 22 February 1994, Series A no. 281 ‑ A ), where the assets in dispute were well defined, in the case before us the debt towards the applicant was, prior to the “liquidation” phase, certain and current, but not enforceable.

The Court has reiterated that “a claim cannot qualify as a “possession” within the meaning of Article 1 of Protocol No. 1 unless it has been recognised and determined by a judicial decision having final effect. That is the condition for determining whether a claim may be regarded as definite and enforceable and so entitled to the protection of Article 1 of Protocol No. 1 ( see Stran Greek Refineries and Stratis Andreadis v. Greece , judgment of 9 December 1994, Series A no. 301-B) ” ( Fernandez-Molina Gonzalez and Others v. Spain (d e c.), no . 64359/01, E CH R 2002 - IX, p. 299).

A fter the Supreme Court had specified the amount to be paid to the applicant, the existing information suggests that the applicant received compensation within a short time ; A rticle 1 of Protocol No. 1, which was undoubtedly applicable from the moment that the Supreme Court ' s judgment became final, was respected in this case once the State had unhesitatingly complied with the Supreme Court ' s order .

2. It is true that the phase of “liquidating” the applicant ' s right lasted from 30 January 1997, date of his acquittal, to May 2006 (date of the Supreme Court ' s judgment ) : in other words, more than nine years .

This is a long period, which is mainly attributable to the conduct of the authorities, and especially the domestic courts, in proceedings which were of no particular complexity.

I therefore considered that there had been a violation of A rticle 6 of the Convention.

However, by following another line of case-law inspired by the judgments in AkkuÅŸ v. Turkey ( 9 July 1997, Reports of Judgments and Decisions 1997 ‑ IV, pp. 1309-1310 , § 29) and Almeida Garrett , Mascarenhas Falcão and Others v. Portugal , nos. 29813/96 and 30229/96, pp. 130-131, § 54 , ECHR 2000 ‑ I ), I also conclude that there has been a violation of A rticle 1 of Protocol No. 1, but on the basis of reasoning which I believe to be more solid.

I consider that the applicant could claim to be entitled to recover his debt against the State, which would make it possible to conclude, in principle, that Article 1 of Protocol No. 1 was applicable.

I n my opinion, the disputed situation comes within the first sentence of that paragraph, which lays down the principle of peaceful enjoyment of property ( see Matos e Silva , Lda. , and Others v. Portugal , judgment of 16 September 1996, Reports 1996 ‑ IV, p. 1113, § 81, referred to in the Almeida Garret, Mascarenhas Falcão and Others judgment, cited above, § 48).

It remains to rule on compliance with the provision in question.

Continu ing to follow the reasoning in the Almeida Garret, Mascarenhas Falcão and Others judgment, it is necessary to ascertain whether a proper balance has been struck between the demands of the community ' s general interest and the requirements of protecting the fundamental rights of the individual.

I note that nine years elapsed without the applicant receiving the sum corresponding to the value of the furs.

I t is undeniable that the length of time in question is imputable to the State, and that no valid justification has been put forward.

In addition, the adequacy of compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as unreasonable delay ( see Akkuş , cited above, pp. 1309-1310, § 29; and, mutatis mutandis , Stran Greek Refineries and Stratis Andreadis , cited above , p. 90, § 82).

The difference between the value of the applicant ' s c laim at the time of his acquittal a nd its value when actually paid caused the applicant to sustain a loss which, moreover, was not compensated by adequate default interest .

E qually, by deferring for nine years the payment of the disputed compensation, the domestic authorities left the applicant in a state of uncertainty, which leads me to consider that he has had to bear an individual and excessive burden which has upset the fair balance that should be struck between the requirements of the general interest and the protection of the right to the peaceful enjoyment of possessions .

There has therefore been a violation of A rticle 1 of Protocol No. 1.

Partly Concurring Opinion o F JUDGE Jočienė

1. I am in agreement with the majority in finding a violation of Article 1 of Protocol No. 1 of the Convention in this case . However, my conclusion is based on some further arguments which I explain below. I do not share the majority ' s conclusion that the finding of a violation of Article 1 of Protocol No. 1 makes it unnecessary to examine separately the merits of the claim under Article 6 § 1 of the Convention (right to a hearing within a reasonable time). In my opinion, Article 6 and Article 1 of Protocol No. 1 reflect two separate values of the Convention, both of which are of fundamental importance, namely the rule of law and fair administration of justice on the one hand, and the peaceful enjoyment of possessions on the other, and which should have been dealt with separately in this particular case.

2. It should be reiterated that it is for the Contracting States to organise their legal systems in such a way that their courts are able to guarantee to everyone the right to a final decision within a reasonable time in the determination of one ' s civil rights and obligations (see Caillot v. France , no. 36932/97, § 27, 4 June 1999, unreported). No one disputes that the applicant ' s civil rights were at issue in the present case. Furthermore, under the well-established case-law of the European Court of Human Rights, the “reasonableness” of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among other authorities, Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV; Frydlender v. France , no. 30979/96, §§ 43, 45, 27 June 2000; Simonavicius v. Lithuania , no. 374158/02, § 39, 27 June 2006, etc.).

3. In the present case, the applicant was acquitted in the criminal case and had been seeking to recover his seized possessions for more than eight and a half years (see paragraphs 11, 23 and 24 of the judgment). In my opinion, all of the arguments used by the Court in paragraph 37 of the judgment reflect a violation of the right enshrined in Article 6 § 1 of the Convention, namely the right to have one ' s civil rights determined within a reasonable time. The Court in paragraph 37 based its analysis on factors – such as the period of time which elapsed from the moment of bringing the civil action to claim LTL 749,847 and the date of the final decision in that case; the absence of complexity; the domestic courts ' disputes in determining the jurisdictional question and establishing appropriate respondents; and no lack of diligence on the part of the applicant – which, under the above-mentioned principles as developed by the Court, must be assessed when analysing the “reasonableness” of the length of proceedings. Accordingly, I have departed in this case from my colleagues ' decision not to examine separately the merits of the claim under Article 6 § 1 with regard to the “reasonableness” of the length of proceedings since, in my opinion, there has been a separate violation of this provision.

4. While agreeing with the finding of a violation of Article 1 of Protocol No. 1, I would add another set of considerations which influenced me in voting for a breach of this provision.

5. In my opinion, the Court should placed greater emphasis on the most important aspect of the applicant ' s claims, namely the fact that he could not obtain adequate compensation, at least the value of the auction proceeds, for a prolonged period of time. In my opinion, this aspect contains two different elements. Firstly, it should be remembered that the applicant was awarded LTL 590,056.05 in pecuniary damages by the decision of the Supreme Court of Lithuania of 26 May 2006 (see paragraphs 23 and 24 of the judgment). The question to be determined is whether, in these particular circumstances, the deduction of the total amount of the auction expenses (LTL 132,325.95) from the sum awarded to the applicant is to be regarded as a disproportionate and excessive burden, placed solely on the applicant even after his final acquittal. In my opinion, this question should be answered in the affirmative, despite the fact that the State was acting as an honest acquirer in the case, and had had legitimate grounds to start an investigation and the right to require compensation for the expenses incurred in maintaining the property, in line with the Civil Code of Lithuania. Ultimately, however, the applicant was acquitted of the criminal charges brought against him. This crucial factor should have led the State to reconsider and to agree to pay at least some of the auction expenses, which have now been placed solely on the applicant ' s shoulders.

6. Secondly, my main problem in this case relates to the interest paid to the applicant for only 20 days (see paragraph 26 of the judgment). I cannot agree with the domestic courts ' evaluation concerning the period for which the State was liable to pay interest. I accept the argument that the State is obliged to pay interest only from the date on which the fact of unjust enrichment became known. However, I do not share the domestic courts ' conclusion that this date was 26 May 2006, when the Supreme Court of Lithuania adopted a decision under which compensation for the seized mink furs was to be paid to the applicant. In my opinion, the starting point was the day of the applicant ' s final acquittal. It should be noted that certain contradictions may be observed in the reasoning of the domestic courts. On the one hand, the Supreme Court of Lithuania, in its decision of 12 October 2007 (see paragraph 26 of the judgment) upholding the decisions of the lower courts, clearly stated that, in accordance with the rules of criminal procedure, the confiscated goods should be returned to the acquitted person after his acquittal. It further added that, as an honest acquirer of the auction proceeds, the State could not be liable to pay interest “until the end of the criminal proceedings”. On the other hand, the State was deemed an honest acquirer, even after the applicant ' s acquittal. Consequently, an issue arises, namely the fact that the applicant was acquitted in January 1997 but the State was deemed an honest acquirer even after that date, until the issue of compensation for the auction proceeds was resolved by the civil courts approximately nine years later. In my opinion, this means that the applicant should have been paid interest for the whole period from his acquittal on 30 January 1997 until the compensation for the seized mink furs was actually paid to him (20 days after the decision of the Supreme Court of Lithuania was adopted on 26 May 2006).

[1] At the current rate of exchange