DISSENTING OPINION OF JUDGE RESS

(Translation)

1. I share the dissenting opinion of Judges Costa and Borrego Borrego joined by Judge Botoucharova, except regarding a violation of Article 14. I still find the reasoning of the Chamber, which adopted a judgment on 22 January 2004 in the present case holding unanimously that there had been a violation of Article 1 of Protocol No. 1 on the ground that the State had compelled the applicants to assign their property to the State without any compensation, more convincing than the Grand Chamber ' s judgment.

2. The applicants had not acquired property rights illegally, but entirely legally under the Law of 6 March 1990 . It would be possible to speak of an illegal acquisition or – as the Grand Chamber has done – a “ windfall ” if the former laws and regulations of the GDR were taken as a decisive criterion. Such was not the intention of the legislature or the purpose of the Law of 6 March 1990 , however. The legislature had to create true ownership in the sense of a free market economy to prepare the GDR for the signing of economic, currency and social union with the FRG, which was finally done on 18 May 1990 . It is far-fetched to consider that there is a loophole in that Law concerning the question of ownership of heirs to that land and to see in that a whole series of uncertainties regarding their legal position. Although the Law of 6 March 1990 is very short, or even succinct, all the issues were discussed by the parliamentary commission and were therefore known to the legislature. There is no evidence of a loophole in the structure of that Law. Otherwise, it would be possible to find all sorts of loopholes in short l aws if the results of the l aw appear unsatisfactory. Naturally the legislature can correct those results in such a case, but in doing so it must respect the individual rights it has created. Furthermore, from the Law of 6 March 1990 until the 1992 Act , the applicants were able to exercise their property rights in good faith for two years. Considering that the period during which the Italian authorities left Mr Beyeler in the dark as to whether he had become the lawful owner ( see Beyeler v. Italy [GC], no. 33202/96, § 119, ECHR 2000- I) was just over four years, I think that in the present case the applicants, whose property right s w ere not called into question, were also entitled to compensation for the legitimate expectation created by the State.

3. My biggest reservation concerns the reference to the “unique” context of the unification of Germany and the “exceptional circumstances” of this case. As my colleagues Judges Costa and Borrego Borrego have rightly pointed out, this expression should not be misused. The unification of Germany is no more “unique” than the dissolution of the USSR or of Yugoslavia or the change of political regime that occurred in many countries after the fall of the Berlin Wall.

If a State like the FRG is bound by the Convention , such events cannot in general justify a vague interpretation or less strict application of the Convention. Ila ş cu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004- VII ), the context of which could also have been described as “unique” following the dissolution of the USSR, is a good example of this firm approach on the part of the Court. With the notion of “exceptional circumstances” , the Court could have arrived at different results in that case as well. It seems to me that the Court has been less firm in its decision in V on Maltzan and Others v. Germany ((dec.) [GC], nos. 7191 6/01, 71917/01 and 10260/02, §§ 77 and 111-12, ECHR 2005 - V ), in which it did not acknowledge the applicants ' legitimate expectation of compensation (as a property right) , even though the Federal Constitutional Court had in principle recognised that right of property, and in the present case.

4. The introduction of the concept of “exceptional circumstances” as a ratio decidendi justifying an exception under Article 1 of Protocol No. 1 is a very dangerous step in the development of the interpretation of the Convention. The Court has used it very rarely, for example in The f ormer King of Greece and Others v. Greece ([GC], no. 25701/94, § 89, ECHR 2000- XII), where it did nonetheless award just satisfaction. If the Court accepts that exceptional circumstances may justify interferences by the State with the individual ' s rights, this is a S tate-orientated concept that is a fa r cry from the concept of human rights protection. In James and Others , which has been mentioned as a case in which a parallel can be drawn ( James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98), the rights of private individuals were weighed against each other. In that case it could be said that there was not a fair balance between the persons concerned because the tenants had already invested so heavily in the buildings that the right of the formal owner could justifiably be overridden. In that case as well, however, the Court did not rule out just satisfaction even if it was less than the market value. That particular case concerned a situation in which the State could be considered as the just arbitrator between competing private interests. In the present case , the State itself engineered the interference on the ground that the Modrow Law had created inequalities in society. The situation is far from being comparable to James and Others and I do not understand how the Court could have overlooked that profound difference.

The concept of “exceptional circumstances” is one that does not lend itself to generalisations. Moreover, if an attempt is made to generalise the notion of “exceptional circumstances” as a ratio decidendi , the Court will lose its status as an organ of justice. It will no longer be possible to determine when and in what circumstances the Court will accept that there were “exceptional circumstances”. Is the fight against terrorism an exceptional situation? Does such an exceptional situation justify interferences with human rights with the result that there is no longer a violation? From what I can see of past rulings, the Court has never justified such an interference with human rights to the State ' s benefit on account of “exceptional circumstances”. On the contrary, the Court has justified, in for example D. v. the United Kingdom (judgment of 2 May 1997 , Reports of Judgments and Decisions 1997-III) , an extension of the protection of individuals in “exceptional circumstances”, which is more in keeping with the protection of human rights, even if the justification can hardly be generalised.

5. That a l aw creates inequalities is not an exceptional situation. There are many such l aws and the legislature can be required to correct the inequality. However, the correction must be done while respecting human rights. Such a correction is not an “exceptional situation”. It is in itself an entirely normal situation in which the legislature – under political pressure or because of constitutional objections – corrects an error by the legislature that has led to unacceptable consequences for society. But all that is done at a political level and such considerations should not be brought into play through the notion of an “exceptional situation” when interpreting the Convention.

6. What is exceptional in a transitional period? There may be greater possibilities of mistakes by the legislature, which future legislatures would be inclined to correct, but does this give carte blanche to commit violations of human rights or to regard violations as non-violations? The Court has also referred to the nature of the right or rather to its unclear nature and character and introduced a classification of weak and normal or strong rights. That distinction makes things even less clear. One of the big mistakes of the Court was to turn to the law of the GDR, which of course was not bound by the Convention. The starting - point for the Court should have been the Unification Treaty, when the Convention also came into force on the territory of the former GDR. The Unification Treaty included the Modrow Law as part of the federal legislation and, as the Government have confirmed, established the full property rights of the applicants. It was not only futile to refer to the legal situation in the GDR but also unjustified to go back further than the entry into force of the Convention on the territory of the GDR.

7. The Court also regarded as an exceptional circumstance the fact that the Modrow Law was passed by a regime that did not have democratic legitimacy and no one could therefore have confidence in the legal stability of such a l aw. The decisive moment, however, was the Unification Treaty and the incorporation of the Modrow Law into FRG law by the fully democratically elected German parliament, which makes that argument futile. The fact that the German legislature reacted promptly, within less than two years, to correct the so-called unacceptable consequences of the Modrow Law does not justify referring to “exceptional circumstances”. On the contrary, a parliament which promptly corrects errors that have become evident is not in an “exceptional situation” and this does not justify concluding that interferences may not be violations of human rights. To sum up, the whole argumentation is rather circular. The situation has nothing in common with Rekvényi v. Hungary ([GC], no. 25390/94, ECHR 1999 -III) where the restriction of the right to vote was justified by the argument that otherwise the whole election process could be jeopardi s ed. In the present case , the Government did not advance the idea that they had to protect individual property rights but, on the contrary, the State thought of a solution from which it could derive the greatest advantage from the taking of property.

8. The Chamber did not rule on the question of the amount of just satisfaction, but confirmed the principle that a disproportionate interference with the right of property would in principle entitle the victim to redress. All the considerations relating to the nature of the applicants ' rights and their legitimate expectation s might play a role in the application of Article 41, as the Chamber pointed out, but not in the interpretation and application of Article 1 of Protocol No. 1.

If the Court is now going to say that a kind of expropriation is proportionate because the State has an interest in correcting errors, that is not very far from the defence plea rejected in Streletz , Kessler and Krenz v. Germany ([GC], nos. 34044/96, 3 5532/97 and 44801/98, ECHR 2001- II) , in which the applicants relied on the raison d ' état (the State concerned was the GDR) to justify the interferences. If the Court is going to accept that there may be reasons for the State to disregard human rights (whether it calls them exceptional or whatever), who then will protect the individual against interferences with these rights?

[1] . Judges Ress and Botoucharova do not share the conclusions in the opinion as regards Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 as they voted with the majority on that issue.