CONCURRING OPINION OF JUDGE BORREGO BORREGO

(Translation)

I voted with the majority of the Chamber in finding that there had been no violation of the Convention; in my case, however, this was based on the belief that the applicants could not be considered to have “possessions” within the meaning of Article 1 of Protocol No. 1, which guarantees the protection of property.

In its decision in Slivenko v. Latvia ((dec.) [GC], no. 48321/99, § 121, 23 January 2002), the Court stated on the subject of that provision: “An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her ‘possessions’ ... ‘Possessions’ can be ‘existing possessions’ or assets, including claims by virtue of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of acquiring effective enjoyment of a property right.”

In the matter of entitlement to benefits, a distinction was established by the Commission, and taken up by the Court, between contributory and non ‑ contributory benefits, the latter being considered not to constitute “possessions”.

However, in its decision of 6 July 2005 on the admissibility of the present application, the Court, after examining the case-law on the subject – which, admittedly, is not entirely free of ambiguity – stated (§ 54): “If ... a Contracting State has in force legislation providing for the payment as of right of a welfare benefit – whether conditional or not on the prior payment of contributions – that legislation must be regarded as generating a proprietary interest falling within the ambit of Article 1 of Protocol No. 1 for persons satisfying its requirements.”

Hence, the notion of “possessions” is widened here to include “interests”, and applies to all individuals, including those who “for all or part of their lives, [are] completely dependent for survival on social security and welfare benefits” (ibid., § 51). This is far removed from the notion of property as the right of the citizen to “dispose at his pleasure of his goods, income, and of the fruits of his labour and his skill” (Article 16 of the Declaration of the Rights of Man and the Citizen of 23 June 1793).

If we accept that the protection of property extends to protecting property owners, the Court’s new interpretation has an undeniable attraction! Without any need for a revolution, all Europe’s citizens have become property owners, protected by Article 1 of Protocol No. 1. Everyone, from a billionaire right down to the poorest person subsisting on social security, has become a property owner.

This widening of the notion of “possessions” stems, in my view, from the way in which this case was presented, in that it sought to establish a close link between Protocol No. 1 and Article 14 of the Convention.

Hence, paragraph 55 of the admissibility decision, to which paragraph 53 of the judgment refers, reads: “Although Protocol No. 1 does not include the right to receive a social security payment of any kind, if a State does decide to create a benefits scheme, it must do so in a manner which is compatible with Article 14.”

The “prohibition of discrimination” element proved so compelling – all the more so since the case related to discrimination based on sex – that the Court, overlooking the fact that Article 14 is secondary to the other substantive guarantees and has no independent existence, found that there had been no “violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1”, thereby placing a clear emphasis on the discrimination rather than the property aspect.

I remember Kopecký v. Slovakia , in which the applicant claimed the restitution under an Extra-Judicial Rehabilitations Act of items of property which had been taken away from his father. He had proved that the items in question had belonged to his father and had been confiscated and deposited in the offices of the Regional Administration of the Ministry of the Interior in 1958. However, as the Act required the applicant to indicate the exact location of the items (gold and silver coins of numismatic value), almost fifty years after they had been confiscated, and he had been unable to do so, the Court held that “the applicant did not have a ‘possession’ within the meaning of the first sentence of Article 1 of Protocol No. 1 (see Kopecký v. Slovakia [GC], no. 44912/98, § 60, ECHR 2004 ‑ IX).

In truth, I consider the gold and silver coins belonging to Mr Kopecký’s father to be much closer to the notion of “possessions” than the benefits claimed by the applicants in the present case. In Kopecký , however, the link with the prohibition of discrimination was absent.

I feel that the Court’s interpretation of Article 1 of Protocol No. 1 in the present case goes somewhat too far and serves only to heighten the confusion that already exists in this sphere. Ultimately, however, I can live with it.

I should like, nevertheless, to express my concern regarding one very specific aspect of this new approach to the notion of “possessions”.

In paragraph 48 of the admissibility decision, the Court found that “[t]he Convention must also be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions”.

I quite agree. However, in my opinion, the Court may not, in interpreting the Convention (see Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969), frustrate the sovereign intentions of a Contracting Party.

As I see it, the way in which “Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1” is construed in this judgment implies, purely and simply, the entry into force of Protocol No. 12 in a very important sphere (social security benefits), in respect of a Contracting Party which has not even signed Protocol No. 12.

Paragraph 34 of the admissibility decision summed up the Government’s argument in that regard as follows: “The applicants were seeking to widen the concept of a ‘possession’ to include claims which had no basis in domestic law, in order to bring a general complaint of discrimination of the type which would be covered by the new Protocol No. 12 but not by Article 14.”

It is my belief that we cannot bring into force, even in part, a Protocol in respect of a State which has not yet signed it.