DISSENTING OPINION OF JUDGE RESS JOINED BY JUDGES STEINER AND BORREGO BORREGO

1. When , on 1 April 1992 , in the context of judicial rehabilitation , the Supreme Court of the Slovak Republic quashed the judgment of 12 February 1959 and all consequential decisions, and discharged the applicant ’ s late father, the confiscation of the coins was annulled. The legal status quo ante was restored , and the applicant again became the owner of the coins as his father ’ s heir. In so far as section 23 of the Judicial Rehabilitation Act of 1990 provided that the c onditions under which this A ct was to apply to claims resulting from quashed confiscation decisions, the manner of redress and the scope of such claims were to be defined in a special law, such a law had to observe at least as a minimum the existence of property as a consequence of the annulment of confiscations. One cannot interpret section 23 as giving carte blanche for any conditions in such a special law. This limitation has a direct consequence for the interpretation of the Extra -J udicial Rehabilitatio ns Act of 1991. Since this A ct lays down the conditions for submitting claims resulting from quashed convictions by which property was confiscated, as well as the manner of redress and the scope of such claims, it has to be presumed that it was deemed to respect as thoroughly as possible the existence of the property in question . This line of interpretation leads to the conclusion that , under the 1991 Act taken in conjunction with the 1990 Act , there existed for the applicant a legitimate expectation that he could not only claim in theory the return of the coins but also receive in practice any support from the S tate authorities in this respect.

2. It is true that a State which decides to return property which was confiscated during the communist period is free to establish the legal conditions for the restitution. The Convention does not oblige a State to return property which was confiscated at a time before the Convention came into force. If the State decides to provide for restitution , it may lay down conditions for such restitution. Nevertheless, if the person in question has already acquired a legitimate expectation as regards the return of his property, the State is not completely free in respect of these conditions. It must then observe the basic requirements of proportionality (balance between private and public interest) inherent in Article 1 of Protocol No. 1.

In the present case , the State created a legitimate expectation that the property would be returned after the annulment of the confiscation decision. The rules on the manner of redress and the scope of claims must be interpreted in the sense that they should not hinder redress and restitution more than necessary. One cannot convincingly argue that the 1991 Act provides for restitution only in exceptional cases. This is a presumption which fails to respect the very concept of rehabilitation. My argument is not that the 1991 Act did not respect this concept of rehabilitation , but that the interpretation by the c ourts did not fully take into account the consequences of the fact that the annulment of the confiscation had already created a property right. The annulment is a legal act which in every respect fulfils the condition which the Court has laid down for recognition of the existence of a legitimate expectation.

3. If one is prepared to follow this interpretation of the two legal acts (for the time after the ratification of the Convention on 18 March 1992), section 5 , which is relevant for the restitution of confiscated goods , has to be viewed in the light of the principle of proportionality , which encloses within the balance between private and public interests also elements of equality of arms. A burden of proof rule which ignores the fact that it is de facto impossible for the claimant to show where the property is because he has no possibility of inspecting the premises or safes of the former public security regional administration in Bratislava can scarcely stand the test of procedural fairness which to that extent is also inherent in Article 1 of Prot ocol No. 1.

If one admits that there was a legitimate expectation, then the case comes very close to the case of the Greek monasteries (see The Holy Monasteries v. Greece , judgment of 9 December 1994 , Series A no. 301-A). There , the Court held that the imposing of a considerable burden of proof on the applicants was not proportiona te and did not preserve the fair balance between the various interests as required by Article 1 of Protocol N o. 1. The creation of a presumption of State ownership shifted the burden of proof on to the monasteries in such a way as “to transfer full ownership to the State” ( pp. 32-33, §§ 58 and 61 of that judgment ). This situation is similar to our case , where the impossibility for the applicant to indicate where the goods are to be found would lead de facto to a loss of property.

4. I come to the conclusion that there was a genuine dispute because according to the Supreme Court judgment of 1992 the confiscation was annulled and the property rights restored even under the conditions of the 199 1 Act . The annulment had legal force and therefore there was a legitimate expectation for the applicant that he would have a fair chance to get the coins back.

The rules on the burden of proof must be interpreted in the light of the requirements of proportionality inherent in Article 1 of Protocol No. 1 so as to make it not ex ante impossible for an entitled person to recover his property. Since it is not disputed that the coins came into the possession and sphere of the respondent State, the State has, in imposing such a “burden of proof”, an obligation to participate by an effective and intensive investigation. One could argue that the Regional Court itself investigated , but it only had documents and one witness at its disposal. It seems obvious that no inspection of the State archives and safes took place. Furthermore, can it really be excluded that th ese coins ha ve found their way into the coin collection of some museum? I have doubts whether the investigation by the Regional Court justifies the conclusion that the respondent State , in the framework of its obligation in relation to the “burden of proof” , has itself done everything necessary to show that the coins really could not be traced. Of course, there is no general responsibility of the State under the law for these movable properties but there is at least a procedural requirement inherent in Article 1 of Protocol No. 1 which the State has to fulfil. In my view , the courts of the respondent State did not fully comply with these procedural requirements.

DISSENTING OPINION OF JUDGE STRÁŽNICKÁ

To my regret , I cannot agree with the conclusion of the majority of the Court that there has been no violation of Article 1 of Protocol No. 1.

In my view , the applicant in the present case did have a “legitimate expectation” of having his restitution claim satisfied, for the following reasons.

1. The legislation on restitution was ado pted with the clear intention of remedy ing injustices committed in the period between 25 February 1948 and 1 January 1990 (“the relevant period”). It was reflected in the purpose of the Judicial Rehabilitation Act of 1990 “ ... to authorise the quashing of convictions for offences where such convictions are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the Constitution and set out in international instruments, ... to ensure social rehabilitation and adequate material compensation for the persons [so] convicted ...”. The Extra - Judicial Rehabilitations Act was adopted subsequently in 1991 with the aim of mitigating “the consequences of certain infringements of property and other rights which occurred [ in the relevant period ] ”. This Act also laid down the conditions for submitting restitution claims stemming from the quashing of convictions resulting in imprisonment and confiscation of property, and the manner and scope of redress in respect of such claims.

The legislature ’ s intention “to satisfy restitution claims mainly in the form of restoration of the movable and immovable property in natura or in the form of pecuniary compensation” was also clearly expressed in the preparatory work for the above two restitution laws . If restitution of the property was not possible or if the relevant documents were not available or had been destroyed, compensation by payment of a general sum of money was envisaged. The possibility of claiming damages under the State Liability Act of 1969 was not excluded (see http://www.psp.cz/).

The restitution laws are interrelated in defining important principles for re - establishing democratic values in the former Czechoslovakia , including the rule of law and the legal protection of private property. The principle of the rule of law is one of the fundamental principles of a democratic society and is inherent in all Articles of the Convention. It presupposes, inter alia , that national law has to be accessible, foreseeable as to effect and precise in order to ensure legal certainty for those involved. Although it is not the Court ’ s primary task to interpret and apply domestic law, it is certainly called upon to verify whether the way in which domestic law is interpreted and applied is consistent with the Convention.

The relevant provisions of the Extra-Judicial Rehabilitations Act laying down conditions for the restitution of property to entitled persons ( s ection 5) are not sufficiently clear and precise as far as movable property is concerned.

It thus remains to be examined whether the interpretation and application of these provisions by the national courts was compatible with the legislature ’ s initial intention not to exclude nationals of the country permanently residing there from restitution.

In my opinion it is contrary to the purpose of the restitution laws, on the one hand, to declare the existence of a remedy in respect of infringements of the law which took place in the relevant period and, on the other hand, to eliminate the legitimate interest of the entitled person by burdening him or her with requirements that are impossible to fulfil.

2. Having regard to the purpose of the restitution laws and the definition of an entitled person in sections 3 and 19 of the Extra-Judicial Rehabilitations Act, the present case is clearly distinguishable from the previous restitution cases of Bre ž ny v. Slovakia ( no. 23131/93, Commission decision of 4 March 1996, Decisions and Reports 85 -B ), Malhous v. the Czech Republic ( (dec.) [GC] , no. 33071/96, ECHR 2000 - XII ), Gratzinger and Gratzingerova v. the Czech Republic ( (dec.) [GC] , no. 39794/98, ECHR 2002 - VII ) and Jantner v Slovakia ( (dec.), no. 39050/97, 4 March 2003 ) . Firstly, those cases concerned claims for restitution of immovable property. Secondly, in those cases, obviously and from the very outset the restitution claimants had been outside the legal definition of an entitled person or the property in issue had been excluded from the scope of the restitution laws. Thirdly, in those cases, compliance with the statutory conditions for restitution ( namely, citizenship and permanent residence) depended mainly on the claimants and they had a fair chance to comply with them.

However, in the instant case, the applicant clearly had the standing of an entitled person under the legal definition of section 3 of the Extra-Judicial Rehabilitations Act. This was acknowledged by the national courts at all levels.

It is my opinion that the applicant also complied with the other conditions , set out in sections 5 and 19 of th e Ext r a-Judicial Rehabilitations Act , for having the coins restored to him.

The applicant based his restitution claim on the Supreme Court ’ s judgment of 1992 in which his father had been fully rehabilitated. This rehabilitation included annulment of the decision on confiscation of the coins in issue.

The legal effect of rehabilitation under the Judicial Rehabilitation Act is the reinstatement of the rehabilitated person to his or her former position. Where property has been confiscated, this entails the rehabilitated person ’ s reinstatement as the owner, who then has a claim for restitution of the property in question.

In the present case , the applicant assumed the legal position of his father under the Extra - Judicial Rehabilitations Act. He thus acquired his father ’ s right to have the coins restored. This is one of the reasons why I cannot share the opinion of the majority of my colleagues that the rehabilitation laws and the applicant ’ s standing as an entitled person under the Extra-Judicial Rehabilitations Act did not suffice to generate a legitimate expectation on his part of having his claim satisfied. This claim had, after all, been accepted by the District Court as the court of first instance and was not devoid of further prospects of success.

3. The crucial point in dispute in the present case is whether the applicant fulfilled the condition of “showing where the property [was] ”. This condition is legally defined in a general way , without determining the point in time to which it refers.

When determining whether the applicant complied with this requirement , the Regional Court as the court of appeal and the Supreme Court as the court of cassation disregarded the fact that he had lodged his action in 1992 claiming restitution of the coins that had been confiscated in 1958 , and that he was in the specific factual position of not having any knowledge of what had happened to the coins after their confiscation.

In support of his action, the applicant submitted documentary evidence showing that the coins had been transferred to the premises of the Public Security Regional Administration of the Ministry of the Interior in Bratislava . He also submitted a detailed inventory of the coins signed by two employees of the institution in question and by a sworn expert who had precisely identified the individual coins and their numismatic value. It is more than clear that the applicant had no access to the Ministry ’ s premises with a view to tracing the coins. He therefore could not be responsible for their further movement. Similarly, as in Vasilescu v. Romania (judgment of 22 May 1998, Reports of Judgments and Decisions 1998 - III), the coins remained for a long period of time within the exclusive competence of the public authority responsible for storing them. U p u ntil the findings of the Regional Court and the Supreme Court in their respective judgments of 1997 and 1998 , the applicant could legitimately assume that the coins were deposited with a State institution.

As a matter of fact, the national courts accepted the applicant ’ s standing as a person entitled to restitution and also admitted that his possibilities of locating the coins were limited. Nevertheless, in determining the case, the Regional Court and the Supreme Court interpreted the relevant law strictly and with extensive formalism and dismissed the action on the ground that the applicant had failed to comply with the condition of showing where the movable property in question was . They linked the non - fulfilment of this condition to the moment of entry into force of the Extra-Judicial Rehabilitations Act and held that only movable property which could be identified individually was available for restitution. The Regional Court and the Supreme Court thus overturned the judgment at first instance which had been in the applicant ’ s favour. In that judgment , the District Court had, inter alia , pointed out: “By insisting that the applicant should show that the coins are at the last known place , the C ourt would impose a burden of proof on him which it is practically impossible to fulfil. On the contrary ... the Ministry of the Interior neither showed that the former Public Security Regional Administration in Bratislava had transferred the coins to a different authority nor did it propose to take evidence to that effect ...”

In my opinion , the District Court rightly concluded that the fact that the applicant had shown with which State authority the coins had been deposited at the time of their confiscation was, in the particular circumstances of the case, sufficient to consider that he had complied with the legal requirement in issue .

Furthermore, the Regional Court found that the applicable official procedure for handling confiscated property had not been complied with and that, for reasons which were attributable to the public authorities, the applicant had been unable to trace the property after it had been deposited with the Ministry. The applicant was thus deprived of any possibility of complying with the said legal requirement.

4. It should also be noted that, when seeking redress before the Slovakian courts, the applicant primarily claimed restitution of his father ’ s coins. In the alternative , he sought damages under the State Liability Act and under the general provisions of the Civil Code. The domestic courts, however, examined and finally dismissed his action under the restitution laws only. These laws provided for no alternative form of compensation in respect of movable property which had been taken away by the State but whose restitution in natura was impossible. Thus, after quashing the District Court ’ s judgment, the Regional Court did not determine the applicant ’ s alternative claim for damages under the State Liability Act, which provided for compensation in cases of maladministration. Nor did the Regional Court take any decision on the applicant ’ s alternative claim for damages under the general provisions of the Civil Code on unjustified enrichment. As a result, the applicant obtained no redress at all. This not only raises the question of the real effect of the restitution laws in so far as movable property is concerned , but raises an additional issue under Article 1 of Protocol No. 1 as “a total lack of compensation can be considered justifiable only in exceptional circumstances” (see The Holy Monasteries v. Greece , judgment of 9 December 1994, Series A no. 301- A, p. 35, § 71).

5. The main issue in the present case concerns the question whether the applicant ’ s claim amounted to a “possession” within the meaning of the Court ’ s case- law and whether he could have had any “legitimate expectation” of realising this claim.

I cannot agree with the conclusion of the majority in paragraph 53 of the judgment that in the present case no concrete proprietary interest of the applicant has suffered as a result of his reliance on a specific legal act and that he cannot therefore be said to have had a “legitimate expectation” as defined in the Court ’ s consistent case-law. The notion of possession in the case-law has been extended also to claims over goods that do not amount to ownership (security right in rem in Gasus Dosier- und Fördertechnik GmbH v. the Netherlands , judgment of 23 February 1995, Series A no. 306- B), and to civil claims which have not been determined (see Pressos Compania Naviera S.A. and Others v. Belgium , judgment of 20 N ovember 1995, Series A no. 332, and Broniowski v. Poland [GC], no. 31443/96, ECHR 2004-V ).

In my opinion , the applicant had a legal entitlement to recovery of the confiscated property on the basis of the Supreme Court judgment rehabilitating his father. That judgment sufficiently established a concrete proprietary interest originating from the reinstatement of the property right of the applicant ’ s father to the confiscated coins. The applicant based his restitution claim on the restitution laws and supported it amply with the documents available. In view of the object and purpose of the restitution laws , he was entitled to believe that he had satisfied all the applicable requirements. He could not have foreseen the extent to which the Regional Court and the Supreme Court would place the onus of proof on him in the proceedings.

The applicant thus had a “legitimate expectation”, within the meaning of the Cou rt ’ s case- law, of having his restitution claim satisfied. The dismissal of this claim amounted to an interference with his rights under Article 1 of Protocol No. 1. This interference was neither necessary, nor did it satisfy the requirement of proportionality.

6. The Court has repeatedly emphasised that the concern to achieve a fair balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole (see Sporrong and Lönnroth v. Sweden , judgment of 23 September 1982, Series A no. 52 , p. 26 § 69 ) and that the requisite balance would not be found if the person concerned had to bear an individual and excessive burden (see James and Others v. the United Kingdom , judgment of 21 February 1986, Series A no. 98, p. 34, § 50 , and The Holy Monasteries , cited above, p. 47, § 71).

It is in dispute whether in the present case the burden of proof could be placed exclusively on the applicant, who had legitimately relied on the public - law liability of the State authority with which the confiscated coins had been deposited. Although the national courts made an effort to find evidence of the movement of the coins in the sphere of the State ’ s competence, I still have doubts as to whether the Ministry took sufficient and adequate steps within the meaning of the Convention with a view to tracing them.

The present case obviously features public as well as individual interests, which both appear legitimate. In my view there is, however, no way of achieving a fair balance between them if the conditions for restitution are impossible to fulfil, either as a consequence of how the legislature defined them or as a consequence of how the national courts interpreted and applied them.

7. The application of the relevant provisions of the restitution laws by the national courts shows how the State assessed the competing interests. Even accepting that the State had a wide margin of appreciation in the case, the need to maintain a fair balance means that promotion of the general interest must not impose an excessive burden on a restitution claimant.

The strict requirement by the national courts that the applicant show where the coins were located at the time of the entry into force of the Extra-Judicial Rehabilitations Act was formalistic and excessive. It was contrary to the object and purpose of the rehabilitation laws and im posed an individual and insurmountable and thus disproportionate burden of proof on the applicant, which resulted in his action being dismissed even without any material decision on the applicant ’ s alternative claim for damages under the State Liability Act.

Thus, the object and purpose of the restitution law was not achieved in the present case. On the contrary, new infringements occurred in respect of the applicant – the humiliation suffered as a result of the unjustified frustration of his legitimate hope, and the distress caused by the litigation and the final dismissal of his claim.

On the basis of several judgments submitted by the Government after the hearing before the Grand Chamber, no consistency in the case-law of the national courts in similar cases can be established. In some of the cases referred to, movable property recorded or inventoried in State cultural institutions such as museums, galleries or libraries was restored to the entitled persons, mainly on the basis of a restitution agreement between the claimant and the State institution in question. It appears that the courts have not always insisted on the requirement of individually identifiable items as they did in the present case. It should also be noted that there are features distinguishing the present case from the case cited in paragraph 24 of the judgment ( see “ Relevant domestic law and practice ” ). In that case , the entitled persons did not identify the State institution to which the property in question was transferred, the manner of its transfer or t he movable property as such.

In the Court ’ s case- law from 2000 onwards, a tendency may be discerned to subject the application of national law to supervisory review by the Court. As regards the primary role of the national authorities in resolving the problems of interpretation of national legislation, the Court has noted that a particularly formalistic and strict interpretation cannot be compatible with the principles of the Convention (see Platakou v. Greece , no. 38460/97, § 43, ECHR 2001 - I; Jokela v. Finland , no. 28856/95, § 65, ECHR 2002 - IV; and Běleš and Others v. the Czech Republic , no. 47273/99, §§ 51 and 60, ECHR 2002 - IX).

In view of these considerations, it is my opinion that the interference with the applicant ’ s rights under Article 1 of Protocol No. 1 did not achieve a fair balance between the demands of the general interest and the requirements of the protection of his individual fundamental rights.