PARTLY DISSENTING OPINION OF JUDGE CABRAL BARRETO

(Translation)

I agree with the majority ' s finding that there has not been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1, but, much to my regret, I cannot share their opinion that there has not been a violation of Article 1 of Protocol No. 1.

Let me explain.

I

I added a partly concurring and partly dissenting opinion to the Chamber judgment , which I would like to set out again here:

“1. I am of the view that there has been a violation of Article 1 of Protocol No. 1 even if I have difficulty in agreeing with the entire reasoning of the judgment.

1.1. The land in question is land that was expropriated in 1945 under the land reform.

Land acquired under the land reform could not be divided up, sold, leased or seized.

Furthermore, when the land was inherited , the relevant district council had to transfer the farming rights and obligations to the heir, who was required to farm the land as a member of a cooperative or as a labourer. If the conditions for transfer were not satisfied, the land became S tate-owned property again.

The heirs of owners of land acquired under the land reform who were not farming the land could not, prior to the Law of 6 March 1990 , register themselves as the owners in the land register.

The Law of 6 March 1990 lifted all the restrictions on disposal of land acquired under the land reform, whereupon those in possession of the land became owners in the true sense of the word.

That Law did not benefit the applicants, however, for the very simple reason that they were not in possession of the land in question on 16 March 1990 when the Law came into force.

1.2. After the Law of 6 March 1990 , the applicants succeeded in registering themselves as owners in the land register.

Registration was possible on account of circumstances owing more to mere chance or oversight than legal justification, as the Federal Court of Justice acknowledged.

I would add that the applicants also benefited from the complex and turbulent conditions following the reunification of Germany and from a certain flexibility in the interpretation of the Law of 6 March 1990 , which was duly corrected by the FRG legislature in 1992.

As acknowledged by the Federal Constitutional Court , the new Law put the applicants in the position they would have been in if the legislation that had been in force when the Law of 6 March 1990 came into force had been properly applied.

1.3 . Despite their lack of justification and legal title, the applicants succeeded in registering themselves in the land register as the owners.

They were thus recognised as the owners by the German authorities and were able to dispose of their property.

I agree that the 1992 Act amounted to an interference with the applicants ' position regarding the land in question in that it impaired their legitimate expectation of continuing to be regarded as owners and, accordingly, that there has been a violation of Article 1 of Protocol No. 1.

However, I cannot agree with the following statement in paragraph 86 of the judgment – ' whatever the restrictions on the applicants ' right of property at the time might have been, they were c learly lifted by the Modrow Law ' – since, as I have tried to explain above, the applicants could not benefit from the Modrow Law because they were neither the owners of the land nor in possession of it when the L aw came into force.

I also have difficulty agreeing with the fo llowing part of paragraph 90 – ' there is no doubt that they legally acquired full ownership of their land when th[ e] [Modrow] Law came into force ' – since, to my mind, the Modrow Law did not confer title on anyone, but was limited to lifting the restrictions on the free disposal of the land by those in possession of it, which the applicants were not.

I share the view of the domestic courts (Federal Court of Justice and Federal Constitutional Court) that the 1992 legislature put the applicants in the position they would have been in if the existing legislation had been correctly applied at the time, thus preventing the applicants from obtaining an unjust enrichment.

1.4 . It is therefore with the above indications and qualifications that I find a violation of Article 1 of Protocol No. 1.

2. These qualifications regarding my finding a violati on of Article 1 of Protocol No. 1 also make me reluctant to agree with certain ass ertions contained in paragraphs 91 – ' the Court considers that the German legislature should not have deprived the applicants of their property for the benefit of the State without making provision for th em to be adequately compensated ' – and 93 – ' the lack of any compensation for the State ' s taking of the applicants ' property upsets, to the applicants ' detriment, the fair balance that has to be struck between the protection of property and the requi rements of the general interest ' .

The 1992 legislature corrected a de facto situation that had no legal basis. In those circumstances , I question whether it is appropriate to refer to a taking of property and the need to provide adequate compensation.

Accordingly, and it is for this reason that I disagree with the majority, the applicants were able to benefit from the land in question from the time they registered themselves in the land register until they reassigned it to the tax authorities.

The 1992 Act could require the applicants to reassign not only the land, but also the benefit they had had from it.

If that were the case I would agree that the end of the applicants ' expectation of continuing to be regarded as the owners justified awarding them just satisfaction in the form of a sum of money.

However, in the present case, and beyond the reimbursement of costs and expenses, it seems to me that a finding of a violation constitutes in itself sufficient just satisfaction for the purposes of Article 41 of the Convention.”

II

On re- reading that opinion , I realise that the Court ' s judgment deals with the concerns that I have already raised and I can therefore unhesitatingly subscribe to the analysis of the nature of the applicants ' right after the entry into force of the Law of 6 March 1990 .

Nor do I overlook the situation experienced after German reunification, but, despite everything, the applicants were property owners and have been deprived of their possessions.

It remains to be determined whether the total lack of compensation makes the interference disproportionate.

The majority find that the lack of any compensation, in the unique context of German reunification, does not upset the “fair balance that has to be struck between the protection of property and the requirements of the general interest”.

It is the settled case-law of the Court, however, that the taking of property without any compensation will result in a violation of Article 1 of Protocol No. 1 “ except in exceptional circumstances”.

I find it very difficult to speculate generally about the type of “exceptional circumstances” that may justify a total lack of compensation.

In a situation which I consider very similar because it occurred in exceptional circumstances and in the unique context of a brutal change of political regime, during the transition from a monarchy to a republic, in The f ormer King of Greece and Others v. Greece ([GC], no. 25701/94, § 99, ECHR 2000-XII), the Court held that “the lack of any compensation for the deprivation of the applicants ' property upset, to the detriment of the applicants, the fair balance between the protection of property and the requirements of the public interest”.

I can only transpose that reasoning and conclude, as in that judgment, that there has therefore been a violation of Article 1 of Protocol No. 1.

It should not be forgotten that the 1992 Act was passed by a democratically elected German parliament during the post-reunification period, and thus in a unique context , but one that fell far short of exceptional circumstances as serious as those arising out of a shake-up of political regime such as that examined by the Court in the case of The f ormer King of Greece and Others .

III

However, I am not impervious to the arguments advanced by the majority in paragraph 116 of the present judgment .

While I am unable to bring myself to find that there has not been a violation, I do consider, for the reasons already expressed in my opinion annexed to the Chamber judgment and reiterated above, that the finding of a violation was sufficient to meet the requirements of Article 41 of the Convention.