PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ

I

The issue touched upon by Judge Zagrebelsky is real. At the core of his partly dissenting opinion is the finding that the Convention ’ s Article 46 [1] narrows the binding effect of our judgments to what in constitutional law is called the effect inter partes , that is, between the State and the particular applicant affected by the judgment. In other words, Judge Zagrebelsky is critical of the Broniowski v. Poland case ([GC], no. 31443/96, ECHR 2004 ‑ V ) , in which this narrow inter partes binding effect was enlarged to encompass other identical or similar cases, irrespective of the question whether they were already pending before this Court.

Logically, the next question is whether the Broniowski judgment – ultra vires , as Judge Zagrebelsky clearly implies! – introduces a so-called erga omnes binding effect into our decisions.

Have we indeed expanded the scope of jurisdiction to the extent that we may now pronounce with binding effect erga omnes and not only on particular cases immediately before us? Have we put ourselves into the role of the negative legislator for forty-six countries? Does the Broniowski judgment really represent a qualitative jump?

The answer to the latter question is simple and pragmatic. If in the Broniowski case we had not decided the way we did, there would have been 80,000 cases pending before this Court. In the best of possible worlds, we would in due time (?) decide all these 80,000 cases. We would mechanically, or, as they say today, in “copy-paste” fashion, reiterate the Broniowski judgment ... 80,000 times.

The only beneficial effect of this, if it can be so called, would be to stick to the narrowly perceived letter of Article 46 of the Convention, adopted even before the time the European Commission of Human Rights had been waiting for the postman to bring an application so it would have something to do. In this connection, it is true that Protocol No. 14 d oes not make provision for our judgments to have erga omnes binding effect, but does that really prove the point Judge Zagrebelsky is making?

Moreover, imagine that the particular national legislation provides for the possibility of a so-called class action. Procedurally, class action is a situation in which all actual and potential plaintiffs are joined by law, that

is, where one or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defences of the representative parties are typical of the claims or defences of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

In such a situation the applicants before the Court would be all the actual and potential plaintiffs and our decision concerning one of them would have binding effect – not erga omnes but in relation to this particular class of applicants. Just as in the Broniowski constellation, the judgment of the European Court would bind the State to indemnify all of them. Would that be contrary to the letter and the spirit of Article 46, by which “ [t]he High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties ”? In such an assemblage, evidently, “the parties” to the case would be all “actual and potential plaintiffs” . The pilot-judgment procedure introduced by Broniowski would then be, for this internal reason deriving from the national civil procedure, completely in agreement with both the letter and the spirit of Article 46 of the Convention.

I dare say that this class-action analogy works in most situations in which the Court would find it practical and reasonable to apply the pilot-judgment procedure . Not only is this far from violating Article 46 of the Convention, it is also far removed from the so-called erga omnes effect that would violate it.

II

The travaux préparatoires of the Convention do indeed show that the current Article 41 was initially intended to have erga omnes binding effect on national jurisdictions [2] . This is what the founding fathers wanted. It was the politicians defending national sovereignty who replaced the formerly clear language of the Article in question with the current incomprehensible language drawn from an old German-Swiss arbitration agreement.

In order to respect the spirit of the Convention, we may take these political hesitations seriously and ask the next question. Is it better for Poland to be condemned in this Court 8 0,000 times and to pay all the costs and expe nses incurred in 8 0,000 cases, or is it better to say to the country concerned: “ Look, you have a serious problem on your hands and we would prefer you to resolve it at home...! If it helps, these are what we think you should take into account as the minimum standards in resolving this problem... ”?

Which one of the two solutions is more respectful of national sovereignty?

The implicit fear that the Court has surreptitiously introduced the erga omnes binding effect of its decisions must thus be qualified. First , a de facto erga omnes effect exists anyway, whether the Court is forced to repeat it 60,000 times or not. There is no escaping this.

Second , a de jure erga omnes binding effect would be one expressed in the judgment in abstracto . In such a case we would say that a particular piece of national legislation that had been the cause of the case before us was incompatible with the Convention, or in other words “un ‑ conventional”.

The Court clearly does not have, with the usual paraphernalia of constitutional law, an interest in meddling in what national legislation should or should not do. Subsidiarity is a healthy collateral effect of the simple fact that an international judicial body does not know how to, and thus does not want to, enter into the details of national legislative happenings.

This is the role rightly reserved for national constitutional courts.

Third , we are situated at the top of forty-six national judicial pyramids. The message sent to one of these jurisdictions will have a completely different meaning in another. In other words, our pronouncements are decisions concerning minimum standards, irrespective of how the violations happened in Iceland or in Azerbaijan . We are not and cannot be the constitutional court for the forty-six countries concerned. The fears that we shall usurp that role are not realistic.

The subsidiary international jurisdiction nevertheless plays a role and engages in a legal discourse and in decision-making, functions which are somewhat similar to what the constitutional courts do. I would expect constitutionalist legal academia to decipher all the constitutive differences.

Suffice it to say here that decisions such as Broniowski or Hutten ‑ Czapska , or for that matter Lukenda ( v. Slovenia , no. 23032/02 , ECHR 2005-X) , are practical and pragmatic decisions – akin to class-action judgments – that avert an increase in the quantity of cases without subverting the intended quality of the binding effect of the judgments of this Court. They say that for some people the experience of thirty years is the experience of one year repeated thirty times. I do not think we want to project this adage onto the States signatories to the Convention.

III

In the end, and quite apart from the general question addressed above, I voted against point 4 of the operative provisions and its reference to paragraph 239 of the judgment. The objectionable paragraph 239 reads as follows:

“... the Court considers that the respondent State must above all, through appropriate legal and/or other measures, secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords, including their entitlement to derive profit from their property ... ” (e mphasis added )

The travaux préparatoires of Protocol No. 1 amply demonstrate the hesitations different prospective signatories had concerning its Article 1 [3] . These hesitations concerned the question whether the right to property is a human right at all. A fortiori , the right to derive profit by merely owning an apartment building cannot be seen as a human right.

I think the language of Article 1 of Protocol No. 1 demonstrates this:

“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions . No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” (e mphasis added )

In other words, the question whether “ peaceful enjoyment of one ’ s possessions ” implies the “ entitlement to derive profit from one ’ s property ” must be answered in the negative. This is not the place to discuss the “social function of property”, although a clause to that effect is an integral part of many modern constitutions. Suffice it to say that a sheer profit for the landlord – in other words, income not derived from his services – is, for the tenant, of necessity a payment that is not reciprocated by a benefit.

How can that be a landlord ’ s human right?