PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

Unfortunately, and to my great regret, I am not able to share some of the conclusions reached by the majority in the present case.

I can easily agree with the majority ’ s views concerning the finding of a violation of Article 1 of Protocol No. 1 of the Convention. Moreover, I agree that in this particular case the violation found arises from legal provisions generating a violation of property rights which could be regarded as structural in nature and having the potential to produce quite a considerable number of similar applications.

I generally agree with the majority on the above finding. Nevertheless, I find it difficult to accept a situation where not all of the applicant ’ s complaints have been examined in the judgment. I am led to this conclusion by the following circumstances.

In paragraphs 38 and 39 of the judgment it is stated that in the 1990s the applicant set up a private entity called the Amber Trail Foundation. Since 1991 she has been making unsuccessful efforts to have her house registered as the seat of the Foundation. After taking over the management of the house, the applicant initiated several sets of proceedings – civil and administrative – in order to annul the previous administrative decisions and to regain possession of the flats in her house, but to no avail.

As emerges from the judgment, in her application to the Court the applicant complained of two elements:

1. She was not able to derive any income from her property.

2. Owing to restrictions on the termination of the lease of the flats she could not regain possession and use of her property (see paragraph 139 of the judgment).

The judgment provides answers only to the first part of the complaint. In the second point of the operative provisions the Court, while ruling on the substance of the complaints, mentions only “ ... restrictions on increases in rent for dwellings ... ”, whereas in the third point the Court holds that “ ... the respondent State must, through the appropriate legal or other measures, secure a reasonable level of rent to the applicant and other persons similarly situated, or provide them with a mechanism mitigating the above- mentioned consequences of the State control of rent increases ... ”.

It clearly follows from this ruling that the majority did not consider the second part of the applicant ’ s complaint, namely that she was unable to regain her possessions or to use them.

I cannot subscribe to this particular approach and I sincerely consider that a court deciding a case should give answers to all the questions posed by the applicant without leaving anything unexamined, because if a problem is not settled, it will not lose its structural character, will not cease to exist and, as a consequence, will arise time and time again, causing further suffering.

It is very difficult for me to accept the very structure and philosophy of the judgment, which I find to be excessively “apologetic”.

With all due respect to the Constitutional Court of Poland, I do not think that it was really necessary to reproduce all those very lengthy quotations from the Constitutional Court ’ s judgments, many of them being not quite relevant to the case before us and some of them, moreover, being very questionable, if not wrong, in substance. For instance, it is very difficult for me personally to agree that, and I quote:

“ ... it is in conformity with the contemporary perception of a ‘ social state ’ to demand some sacrifice from all members of society for the benefit of those who cannot provide subsistence for themselves and their families. By the nature of things, the extent of that sacrifice depends on the level of income and imposes a heavier burden on those who are better off. By the nature of things, the owners of property may be required to make sacrifices, according to the general principle that ‘ ownership entails obligations ’ ... ” (see paragraph 86 of the judgment)

I am sorry to have to say this, but in my view this “forced charity” approach distorts the very nature of social theories that define a social State as a State based on the principles of a socially oriented market economy.

A socially oriented market economy by definition cannot be based on the logic of depriving tens of thousands of its members of generally recognised property rights or on the logic of restricting the peaceful enjoyment of legally recognised possessions. That is why I cannot agree, either, with the majority ’ s finding that:

“ ... the authorities must have considerable discretion not only in choosing the form and deciding on the extent of control over the use of property but also on the appropriate timing for the enforcement of the relevant laws ... ” (see second sub-paragraph of paragraph 185 of the judgment)

In my view this finding, allowing member States an excessively large margin of appreciation in deciding on the level of interference with the property rights of their citizens, presents a real danger for States governed by the rule of law, including “social States”, and runs contrary to the very spirit and essence of Article 1 of Protocol No. 1. In a democratic society no “special circumstances” can or may justify interferences with the fundamental rights and freedoms of its members, unless they are strictly necessary and are based on the law. In this respect I prefer a restrictive approach which would limit the State ’ s interference with property rights only to a very small number of clearly defined situations.

There is one more thing which I cannot agree with, namely that the existence of certain structural problems may deprive the applicant of effective international protection or may in itself serve as a legally

recognised ground for postponing the determination of questions concerning just satisfaction for the violation found.

Here I am referring to point 4 of the operative provisions of the judgment, where it is stated:

“ ... as far as the financial award to the applicant for any pecuniary or non-pecuniary damage resulting from the violation found in the present case is concerned, the question of the application of Article 41 is not ready for decision and accordingly, (a) reserves the said question as a whole ... ”

This ruling is based on the following finding contained in paragraph 196:

“ ... In the circumstances of the case, the Court considers that the question of compensation for pecuniary and non- pecuniary damage is not ready for decision ... ”

In my view such an approach is essentially unjust, which is something I am not able to accept. Unfortunately the majority, having decided to proceed in this way, failed to produce any reason for doing so, making reference only to the above-mentioned “circumstances of the case”. But what are these mysterious circumstances that have prevented the Court from ruling on the just satisfaction issue? The answer to this question remains an enigma for me. I am afraid that it will remain an enigma to the applicant and her lawyers also. I am deeply convinced that in a democratic society, by definition, no circumstances generating violations of the fundamental human rights of tens of thousands of people can be used, even theoretically speaking, as a basis for justifying the above delays in ruling on the Article 41 issue.

From whatever angle I try to look at this issue, I fail to find any legally relevant justification for such a decision, which in substance may be called an incremental one.

First of all, I should mention that our applicant is quite an aged person, who was born in 1931 and is therefore 74 years old (see paragraph 16 of the Judgment). This circumstance alone should have served as an argument against any adjournment of Article 41 issues.

But there are other relevant reasons which normally should have precluded the Court from delaying its ruling.

The applicant, in her submissions about the pecuniary damage she has incurred, refers mostly to the impossibility of receiving a reasonable level of rent payment. Her calculations are based on the multiplication of the average level of rent by the number of months that have elapsed. These calculations are made very carefully and are presented in a sufficiently clear manner, which in practical terms, at least in my view, excludes any doubt.

A similar method of calculation was put forward by the applicant and accepted by the Court in the case of Prodan v. Moldova (no. 49806/99, § 70, ECHR 2004-III), where it is stated:

“ ... The Court reiterates that a judgment in which it 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 (see Former King of Greece and Others v. Greece [GC] (just satisfaction), no. 25701/94, § 72). In the present case, reparation should be aimed at putting the applicant in the position in which she would have found herself had the violation not occurred ... ”

Continuing this line of reasoning the Court states (ibid., § 72):

“ ... the applicant already had accommodation and therefore ... the Court considers it reasonable to consider that she would have attempted to rent out the apartments ... ”

Summing up, the Court concludes (ibid., § 73):

“ ... The Court considers reasonable the general approach proposed by the applicant to assessing the loss suffered ... by reference to the monthly rent payable on the assumption that the apartments had been let out ... ”

All these arguments are perfectly applicable to the present case. I cannot see why the application of levels of rent as a ground for the calculation of pecuniary damage in the Prodan case was considered justified, but in the present case the same method of calculation, in the majority ’ s view, means that this case is “not ready for decision”.

As far as non-pecuniary damage is concerned, I recall that some time ago the same Fourth Section examined the case of Popov v. Moldova , where the problem of adjournment again appeared, because the applicant had lost his property entitlements as a result of judicial revision proceedings. In that case the Court, despite the fact that the national authorities had quashed the final judicial decision by which the applicant had previously been entitled to recover his confiscated property, decided to award Mr Popov just satisfaction for non-pecuniary damage and to adjourn only the issue of pecuniary damage (see Popov v. Moldova , no. 74153/01, operative provisions, 18 January 2005).

I cannot understand why in the present case, unlike in Popov v. Moldova – in other words, contrary to its own case-law – the Court has decided to postpone the question of awarding just satisfaction for non-pecuniary damage. The existence of such damage had not been questioned even by the respondent Government. Nor can I agree with this way of proceeding, which unreasonably prolongs the mental suffering experienced by the applicant by leaving her for a further period without any compensation. I really fail to see in the present case any particular “circumstances” which could explain and justify the need to cause the applicant all this additional suffering.

It has already become a commonplace that “justice delayed is justice denied”, and we must never forget this fact.