PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

To my great regret , I am not able to share the majority ' s view that in the instant case there has been no violation of the applicants ' rights protected by Article 1 of Protocol No. 1 .

In my opinion, it is quite evident from the material before us that there has been a violation of that provision.

I find it difficult to accept the argumentation relied on both by the Government and the majority in their attempts to show that there has not been a violation of property rights in this case.

“In the public interest”

Both the Government and the majority recognise that before the applicants were expropriated the property in question belonged to them (see paragraphs 79- 80 of the judgment ).

In their memorial , the Government mention that it is clear from the case-law of the German courts in the applicants ' cases that the latter had acquired property. The Chamber came to the conclusion that a deprivation of property within the meaning of the second sentence of Article 1 of Protocol No. 1 had taken place. The federal g overnment does not dispute the view of the Chamber in that respect (see paragraphs 20- 21 of the Government ' s memorial).

German reunification took effect on 3 October 1990 (see paragraph 19 of the judgment ), so all legal acts committed by the national authorities of the FRG on the territory of the former GDR after that date are attributable to them.

The first two applicants had inherited land in the Land of Saxony- Anhalt in 1976 during the existence of the GDR and had been registered in the land register as the owners of th at land since 14 July 1992 (see paragraph 25 of the judgment ) by the authorities of the FRG, that is, after reunification had taken place. Only in 1994 was a right of pre-emption in favour of the tax authorities registered in the land register. It follows that the applicants had been the legally recognised owners of the land in question for about eighteen years. For two of those years they had been recognised as the legal owners of the land even by the respondent State.

The third and fourth applicants had inherited land in the Land of Mecklenburg-West Pomerania in 1978 and had been registered in the land register as the owners of th at land since 1996 (see paragraph 34 of the judgment ), that is, five years after reunification took place. They had been the legally recognised owners of the land for approximately twenty years , that is to say until the judgment of 29 October 1998 of the Neubrandenburg Regional Court ordered the applicants to transfer their property to the Land of Mecklenburg-West Pomerania. For about four of those years , like the previous two applicants, they had been recognised as the legal owners by the authorities of the FRG, which, in confirmation of this recognition, had registered them as landowners in the land register.

The fifth applicant had inherited land in the Land of Brandenburg in 1986 and had been registered by the authorities of the FRG in the land register as the owner of the land since 30 November 1991 (see paragraphs 43 and 46 of the judgment ). By this act of registration , the authorities of the respondent State had recognised the legal character of the applicant ' s ownership of the land. The applicant had owned the land until 16 July 1997 , when the Frankfurt an der Oder Regional Court ordered the applicant to transfer her land supposedly into the name of the Land of Brandenburg . So it is clear to me that the applicant had been a legally recognised landowner for about eleven years, and that for about six of those years her ownership had been recognised even by the FRG authorities.

I entirely agree with the Chamber ' s finding that, after German reunification, the applicants had all been registered in the land register and had, initially, been able to dispose of their property as they wished (see paragraph 68 of the Chamber ' s judgment of 22 January 2004).

The applicants had been legally recognised landowners for a general period lasting between eleven and twenty years. If account is taken of the period that elapsed after reunification had taken place, they had been recognised as owners for between two and six years, even by the authorities of reunified Germany . After that they were deprived of their property.

S ome 50,000 people are in the same situation as the applicants in practical terms (see paragraph 85 of the Chamber judgment). I really fail to see any “public interest” in depriving such a large number of German citizens of their property rights.

Giving their justification for depriving the applicants of their property, the Government, at the stage of the Chamber examination, relied on the following argument:

“... the German legislature had had to remedy the injustices of the Modrow Law, which had failed to take account of the fact that very often the GDR authorities had not applied their own rules correctly. The result had been that many farmers actually farming the land were not registered as the owners in the land register and, conversely, that many heirs who were not themselves farming the land were registered as the owners ...” (paragraph 78 of the Chamber judgment )

In their pleadings before the Grand Chamber , the Government added the following argument:

“ ... The failure of the legislature to intervene after German reunification had, they argued, created a blatantly unfair situation in relation to heirs who had had to return their land at the time.” (paragraph 90 of the present judgment )

I find it difficult to accept that line of reasoning. It would have been valid had the FRG authorities not recognised the applicants ' ownership, but they had. For between two and six years , the applicants had been enjoying the same property rights as every other German citizen, without any restriction.

The Government failed to show that their intentions were genuine. For instance, they did not show that they really needed the land for agricultural purposes or that the expropriated land was distributed to other persons actually farming or that the FRG authorities, as a result of the modification of the legislation, had really granted ownership rights to those who were “farmers actually farming the land [but] were not registered as the owners in the land register” or that the land in question was returned to the original owners dispossessed of the land under the communist regime . Neither am I ready to accept that the “situation in relation to heirs who had had to return their land” could serve as a legal ground for expropriating those whose property rights had been legally recognised by the respondent State.

To sum up, I find the Government ' s arguments a little bit artificial and adduced with the aim of creating appearances of some sort of justification for massively depriving many German citizens of their property rights, which – in my view – by definition cannot be “in the public interest”. No public interest can justify the deprivation of property rights of those who had been peacefully enjoying their possessions for a great many years – rights which had previously been legally recognised by the expropriator itself.

The “proportionality of the interference”

I entirely agree with the Chamber ' s findings that an interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual ' s fundamental rights.

Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and whether it imposes a disproportionate burden on the applicants. In order to comply with the principle of proportionality, the German legislature could not deprive the applicants of their property for the benefit of the State without making provision for them to be adequately compensated. In the present case , the applicants did not receive any compensation at all (see paragraphs 82-93 of the Chamber judgment).

At the same time, with the deepest respect to my fellow judges, it is difficult for me to share the majority ' s finding in the present case that “... in the unique context of German reunification, the lack of any compensation does not upset the ' fair balance ' that has to be struck between the protection of property and the requirements of the g eneral interest” (see paragraph 117 of the present judgment ).

In my view the word “balance” implies taking into consideration the particular interests of both the parties involved – in this case the interests of the German State and the interests of the legal landowners.

Well, the interests of the German State have been perfectly respected by transferring the land in question into S tate ownership. But my question is how have the landowners ' interests been respected? The answer is crystal clear: not at all . If one party gets everything and the other party gets nothing, what kind of balance are we talking about? What does the “fairness” of this “balance” consist of in the case before us? The answer to this question is in my view quite clear again: no elements of “fairness” or “balance” have been respected in this case. I would rather call the approach applied to those dispossessed of their proper ty “an unfair im balance”.

I am not able to accept the argument that the Modrow Law “was passed by a parliament that had not been democratically elected” (see paragraphs 98 and 116 of the judgment ).

Everybody will agree that none of the compositions of the GDR p arliament between 1945 and 1990 had been democratically elected. Does this mean th at all the Acts passed by this p arliament for forty-six years, including those regulating other property issues, should be questioned or revised? In my opinion, that would lead us too far and create total chaos.

Treating the reunification of Germany as a kind of exceptional circumstance which, in the view of the majority, has released the German authorities from the duty to compensate somehow for damage caused by expropriation is not justified. I would have readily accepted this argument had the damage been caused as a result of force majeure , that is to say, as a result of events independent of the will of the government and which this g overnment was not able either to foresee or prevent, but this was not the case. It is very difficult to condone a situation where national authorities wilfully change the legislation in favour of the State and to the detriment of their own citizens and then call their own intentional law- making activity a kind of “exceptional circumstance”.

At the beginning of the 1990s , many post-communist countries underwent various transformations of their political and economic systems, but no ne of them (at least, to the best of my knowledge) used all these rather painful transformations as justification for the expropriation of their citizens. On the contrary, they denati onalised and privatised former S tate property. Many people who, under what were then communist totalitarian regimes, could not even dream about private property became actual owners. In the light of all this experience , the attempts to explain the expropriation of thousands of German citizens by a need “to transform the communist p roperty situation into a market economy system” seem really odd (see paragraph 32 of the Government ' s memorial ).

In the case before us , people lost their property not because of reunification, but because of the modification of the legislation by the national authorities to the landowners ' detriment. To my mind, such “exceptional circumstances” cannot and must not release the German authorities from their obligation to strike a fair balance between the two competing interests: the interest of the State in gaining land and the legitimate interests of the bona fide landowners in being compensated.

In my opinion, the principle of a “fair balance” has not been respected by the respondent State in this case. This becomes even clearer if one takes into consideration the applicants ' argument voiced during the hearing that they were not even allowed to buy their own land.

The deprivation of property in the case before us was clearly of a confiscatory nature, but confiscation is a form of punishment, the application of which, by definition, implies the existence of guilt. It goes without saying that the respondent Government did not show and did not even allege the existence of guilt on the part of the applicants.

As a result, in my opinion, the interference with the applicants ' property rights in the present case was not proportionate.

All the above considerations lead me to the conclusion that there has been a violation of Article 1 of Protocol No. 1.