JOINT DISSENTING OPINION OF JUDGES COSTA AND BORREGO BORREGO JOINED BY JUDGE S RESS AND BOTOUCHAROVA [1]

(Translation)

1. In this case a Chamber of the Third Section held unanimously that there had been a breach of Article 1 of Protocol No. 1. Much to our regret, however, we are unable to share the opinion of the majority of the Grand Chamber. After the case was referred to it under Article 43 of the Convention, a majority of the Grand Chamber found that the obligation on the applicants to reassign to the tax authorities for no compensation land to which two of them had acquired title as heirs in 1976, two others in 1978 and the last one in 1986 , had not amounted to a breach of Article 1 of Protocol No. 1. It is precisely this total lack of any compens ation that we find problematic .

2. We do of course agree with paragraph 112 of the judgment, where the approach adopted is “in the light of the unique context of German reunification” (which the Chamber judgment had already noted). We feel that this expression should not be misused, however, as the tumultuous history of Europe , from the end of the Second World War to the conflicts in the Balkans – taking in the collapse of the communist regimes in the east European countries – has experienced many “unique contexts”. That is not what we dispute in the judgment though.

3. In paragraph 116 of the judgment , the Modrow Law is stigmatised as having been “passed by a parliament that was not democratically elected”. It is true that the parliament that passed it, on 6 March 1990 , had not been formed following democratic elections. However, it should be appreciated that this Law was enacted “as part of the negotiations” between the two German States (and the four former occupying powers) and that its aim was “to ensure a transition from a socialist economy to a market economy”. That is what is indicated in paragraphs 19 and 20 of the judgment. One could add that the legislative departments of the federal ministries were involved in drafting it. The Modrow Law is indeed the result of political negotiation . The “non-democratic parliament” of the former GDR is therefore not the sole father of the Modrow Law. What is more, that Law became an integral part of the law of reunified Germany on the very d ay of reunification, that is, 3 October 1990 (see paragraphs 19 and 22 of the judgment).

4. The Act of 14 July 1992 therefore modified a law that had been an integral part of the legislation of the FRG for nearly two years. Admittedly, as stated in paragraph 116 (b) , that period of time, given the enormity of the task, did amount to a “reasonable time to correct the ... effects” of the Modrow Law, even if nearly two years is not a short time.

5. However, we do not agree with the statement made in point (c) of this paragraph that the owners benefited from a “windfall” and that the fact that “this was done without paying any compensation was not disproportionate”. The word “windfall” was used for the first time, it would appear, in James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98), but at the same time th at judgment laid down the principle of compensation – albeit of “less than reimbursement of the full market value” – for persons deprived of their property (ibid., p. 36, § 54). A total lack of compensation is justifiable only in exceptional circumstances (see The f ormer King of Greece and Others v. Greece [GC], no. 25701/94, § 89, ECHR 2000- XII). It is significant that the former king, who lost his throne following a referendum after the fall of a military dictatorship, was awarded substantial compensation by our Court whereas the more modest applicants here are not entitled to anything. Might there be two categories of exceptional circumstances? The concept of exceptional circumstances is itself a dangerous one, moreover, which in our view should be handled with great care.

6. We should add that the 1992 Act was of retrospective effect and was unforeseeable. The applicants had become legal owners. They had been legally registered in that capacity in the land register, the fifth applicant since 1991 and the other four on or after the date of the 1992 Act. That they had inherited property originally destined for agricultural purposes whereas they themselves were not or were no longer farmers or members of an agricultural cooperative might justify depriving them of their property (although they had acted in good faith and had had confidence in the law). But without any compensation?

The case-law does of course recognise, in certain cases, that the State has a right of legal pre-emption (see, on pre-emption over a work of art, Beyeler v. Italy [GC], no. 33202/96, ECHR 2000- I, or over property, Hentrich v. France , judgment of 22 September 1994 , Series A no. 296 ‑ A). However, it has never, to our knowledge, recognised a retrospective right of pre-emption. Mr Beyeler and Mrs Hentrich were, moreover, found to have been victims of a breach of Article 1 of Protocol No. 1 and obtained substantial sums (or even very substantial in the case of Mr Beyeler) under Article 41. Might there be two types of pre-emption?

7. In short, we consider that the applicants were deprived of their possessions without any compensation. They were the victims of a breach of the rules of a State governed by the rule of law whereas the reunification of Germany , in its unique context, was aimed precisely at re-establishing the rule of law. This is what explains our vote on Article 1 of Protocol No. 1.

8. We also voted that there had been a breach of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. 1. The total lack of compensation cannot be justified, in our view, by a real difference between the position of the applicants and that of the three categories of persons referred to in paragraph 119 of the judgment. That said, neither was it an aberration on the part of the Chamber to hold, at paragraph 97 of its judgment, that, having regard to its finding of a violation of the applicants ' right to the peaceful enjoyment of their possessions, it did not consider it necessary to examine the allegation of a breach of Article 14. However, we prefer the position we have expressed by our vote. To our mind, it expresses our conviction more explicitly.