PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY

(Translation)

I concur with the Court ’ s finding in the present case that there has been a violation of Article 1 of Protocol No. 1 in respect of the applicant. I also share the opinion that the violation is a systemic one which results from the particular statutory rules in force in Poland and could be eliminated if a system were set up conforming to the req uirements outlined in paragraph 239 of the judgment.

However, I cannot accept the Court ’ s conclusions as regards the indications given to the Government, as set out in points 3 and 4 of the operative provisions. My disagreement relates to the fact that these indications are given directly by the Court in the operative provisions of its judgment.

By way of introduction, I would note the weakness of the legal basis of the pilot-judgment procedure in its most evident aspect. I am referring to the indication in the operative provisions of the need for the State to amend its own legislation in order to solve a general problem affecting persons other than the applicant. I would observe in this connection that the text of Article 46 of the Convention simply states that “[t] he High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties ” and that it is for the Committee of Ministers to supervise the execution of judgments. It seems to me that the expression “any case to which they are parties” may well refer precisely to cases between the applicant and the State that have been decided by the Court (this is logical , seeing that its judgments are adopted following adversarial proceedings). The arguments set out by the Committee of Ministers in Resolutions Res(2004)3 and Res(2004)6 of 12 May 2004, which are addressed to G overnments, are undoubtedly of much importance and must be taken into account by the Court with a view to ensuring that the reasons given in its judgments are as clear as possible. Indeed, that is an essential requirement for enabling G overnments, under the supervision of the Committee of Ministers , to comply with judgments (Article 46 of the Convention) and to take all general measures necessary to prevent any further violations (Article 1). However, one cannot overlook the fact that the proposals to which the Court refers in paragraph 233 of the judgment were not included in the recent Protocol No. 14 amending the Convention.

Of course, the Court ’ s judgments do have erga omnes effects in relation to persons other than the applicant and to other States. The Committee of Ministers ’ activities are clearly influenced by them. However, I would observe in this connection that , although the Committee of Ministers ’ well ‑ established practice of indicating general measures to G overnments

and asking them to implement them in order to prevent further violations is usually justified on the basis of Article 46 rather than by the Committee of Ministers ’ general obligations (under Articles 3, 8 and 15 of the Statute of the Council of Europe), it concerns a Convention institution whose nature, composition and responsibilities are entirely different from those of the Court, which reflect the latter ’ s judicial function.

But even without wishing to attach too much weight to the above concerns, after the Broniowski v. Poland judgment of 22 June 2004 ( [GC], no. 31443/96, ECHR 2004 - V) , I consider that judgments such as the present one undermine the relationship between the two pillars of the Convention system – the Court and the Committee of Ministers – and entrust the Court with duties outside its own sphere of competence. This seems patently obvious to me in the present case, much more so than in Broniowski . It gives me cause to suggest that that precedent does not indicate the only possible response to the issues raised here. It is not simply a question of instituting a compensation procedure which, while complex and costly, applies to a series of clearly defined individual cases. On the contrary, the solution to the problem in the present case involves a total overhaul of the legal system governing owners ’ rights vis-à-vis tenants, taking into account all the known difficulties, options and alternatives in such matters and the need to adopt a gradual approach in such a sensitive area – what is more, during the transition from a communist to a free-market regime. This applies both in future and as regards redress for any past violations.

It is sufficient to have regard to what the Court says in paragraph 239 to infer that it is entering territory belonging specifically to the realm of politics and that its indications go beyond its jurisdictional competence, which concerns the case between the applicant and the State. Or else – as I am inclined to believe – the Court ’ s indications, in view of their self-evidently vague content, cannot be regarded as binding. In my opinion, they require the Committee of Ministers ’ intervention in any event, without adding in any way to the system ’ s efficiency (see, mutatis mutandis , Lukenda v. Slovenia , no. 23032/02 , ECHR 2005-X ).

I would add that the caution shown by the Court in recognising that the State has a wide margin of appreciation when laying down rules in such a difficult area might be merely ostensible. Whether by assessing a possible friendly settlement (as in Broniowski v. Poland (friendly settlement) [GC] , no. 31443/96, ECHR 2005- X ) or by giving an opinion under Article 46 §§ 4 and 5 as introduced by Protocol No. 14, the Court should cast aside this caution and say, without referring to the position of a particular applicant, whether or not the general measures taken are capable of preventing violations in future. This highlights the nature of the problem I wish to raise here and the consequences of the fact that such indications by the Court are included in the operative provisions of the judgment and hence require “execution”.

To conclude, I would emphasise that the issues which I have outlined concern only the nature and content of the operative provisions of the “pilot judgment” which the Court has adopted. Of much more importance – although it is not mentioned in the judgment – is the ensuing adjournment of all similar cases until the general problem has been resolved for all those in the same position as the applicant in the present case. Such an adjournment is fully justified in accordance with the principle of subsidiarity that characterises the Court ’ s role. This strikes me as a real innovation that may prove effective, especially as it does not undermine the balance of the Convention system, does not call into question the characteristic functions of judicial bodies and encourages the Committee of Ministers to perform its own duties.

[1] 1. Article 46 – Binding force and execution of judgments

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.” (emphasis added)

[2] . See, in this connection, the ambivalent and ambiguous judgment of the German Constitutional Court, Order of the Second Division of 14 October 2004, 2 BvR 1481/04, concerning the internal binding effects of the judgment of the Third Section of the Court in Görgülü v.Germany (no. 74969/01, 26 May 2004).

[3] 1. The P rotocol to the Convention for the Protection of Human Rights and Fundamental Freedoms came into force on 18 May 1954.