DISSENTING OPINION OF JUDGE MARTENS

To my regret I cannot agree with the majority of my colleagues. In my opinion this is not a case where the decision as to just satisfaction may be taken on the basis of equity alone.

The parties were deeply divided both as to the relevant legal principles and as to the facts. Their estimates of the actual value of the seized land differed widely and were, moreover, essentially unsupported by any documents.

In such circumstances the Court should not shelter behind "equity" but rule on the legal issues and invite experts to provide it with the data which would enable it to assess the value of the land, if need be in equity. Deciding in equity, like any other judicial decision, requires a clear and reliable view of the facts.

Apart from this general consideration, the need for consistency in the case-law should have prompted the Court to follow the course I have just suggested. In its Papamichalopoulos and Others v. Greece judgment of 24 June 1993 (Series A no. 260-B) the Court was faced with similar problems of just compensation and had recourse to experts.

It would seem that the majority is of the opinion that the present case may be distinguished from Papamichalopoulos . They apparently distinguish it on the basis that the applicant, both in her memorial and at the hearing concerning the merits, estimated the current value of the land in issue at FRF 1,000,000. That estimate was referred to in paragraph 68 of the judgment. But in my view, this mere estimate, which is rather casual and at any rate wholly unsupported, cannot serve as a proper starting-point for an assessment in equity or for distinguishing the present case from that of Papamichalopoulos .

Consequently, I have voted against the first and fourth paragraphs of the operative provisions of the judgment. I could not approve of assessing the value of the land at 22 September 1994 at FRF 1,000,000 since in my opinion it is quite conceivable that the real value is either considerably higher or considerably lower. In neither case is the Court ’ s starting-point just. Moreover, I cannot agree with deducting only the nominal amount received by the applicant in 1981. Since the Court has held that she is entitled to the value of the land at 22 September 1994, it seems unjust towards France not to deduct the amount received adjusted at exactly the same date. Finally, unlike the majority, I think that the applicant is entitled to statutory interest on the difference from 22 September 1994.

[1] The case is numbered 23/1993/418/497.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.