CONCURRING OPINION OF JUDGE ZUPANČIČ

My concurring opinion relates to paragraphs 190 to 194 and to points 3 and 4 of the operative part of the judgment.

In paragraph 190 we refer to the resolution of the Committee of Ministers of the Council of Europe dated 12 May 2004 ( Res ( 20 0 4) 3) ; the Committee , “after emphasising the interest in helping the State concerned to identify the underlying problems and the necessary execution measures, ... , invited the Court ' to identify in its judgments finding the violation of the Convention, what it considers to be an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments . ' ”

The Court uses this portion of the resolution of the Committee of Ministers to rationali s e what it then says in paragraph 192 as if it were continuing the incremental process that had been commenced in Scozzari and Giunta v. Italy ( [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII ) .

In Scozzari and Giunta , the Court, for the first time, applied the language of Article 41 of the Convention in conjunction with Article 46, to the effect that , taken together , they require the State to do away with the situation which had caused the violation ( “ restitutio in integrum ” ) in the first place and which in fact was the violation found in the case.

Article 46 requires the High Contracting Parties to undertake to abide by the final judgment of the Court; Article 41 refers to situations where the internal law of the H igh Contracting Party concerned allows only partial reparation to be made. The way Article 41 is phrased, which was the basis of our position taken in Scozzari and Giunta , implies that the just satisfaction afforded to the party injured by the C ontracting State is granted derivatively and secondarily, that is, in situations where the internal law of the H igh Contracting Party concerned does not itself provide for and deliver a full reparation (meaning restitutio in integrum ) . The t ravaux préparatoires of the Convention reveal the origin of this rather enigmatic and confusing phrase. It derived from a pre-war Swiss-German a rbitration a greement. It was used as a means of mere political compromise concerning the binding nature of the judgments of the Court; hence its unsuitable language.

However, in Scozzari and Giunta we finally decided to interpret the above language consistently with its logical import, namely, to the effect that pecuniary just satisfaction cannot be the sole remedy. We shall see below that there are situations where mere just satisfaction has rather absurd results. This follows the crucial legal logic according to which the right and the remedy must be interdependent. The consubstantiality of the language of Articles 41 and 46 logically implies t hat the internal law of the High

Contracting Party must offer a remedy to the applicant in whose case the violation was found and, moreover, that that remedy should be decided upon by the Court in its final judgment, by which the High Contracting Party undertakes to abide.

In other words, in Scozzari and Giunta we came to the logically inescapable conclusion that restitutio in integrum should be required by the Court in situations in which the non-compliance with the Convention – Scozzari and Giunta was a family-law case – is a continuing situation extending into the future. Partial or complete compensation for the injury incurred prior to the Court ' s final judgment, even assuming that money can make good such injuries, would only cover the period up to the point of the Court ' s own final finding of a violation. The situation in the recently decided case of Assanidze v. Georgia ([GC], no. 71503/01, ECHR 2004-II), where the applicant continued to be illegally detained, and where the Court for the first time in the operative part of the judgment required the applicant ' s immediate release, is precisely the case in point. It also grows out of the Scozzari and Giunta doctrine. This doctrine is principled and has nothing whatsoever to do with the pragmatic aspect of offsetting the Court ' s rapidly augmenting caseload.

In short , it would be absurd if the Court were to afford “just satisfaction to the injured party” and then sub rosa acquiesce to the continuation of the status quo which the offending State would not be obliged, under the previous interpretation of the language of Article 41, to remedy in its essential aspects.

However, in Broniowski we have a situation that is analogous but not identical to the one in Scozzari and Giunta and Assanidze . In these two cases, without the Court ' s express order, the applicant would continue to suffer the violation of her or his human rights. In Broniowski on the other hand the applicant himself will indeed have been vindicated and compensated, but thousands of others will not. It is true, in other words, that to offer just satisfaction to Mr Broniowski will do absolutely nothing to resolve the predicament in which thousands of other citizens of Poland have found themselves in the whole post-war period. And in which they would continue to find themselves despite the Court ' s finding the violation. At issue, therefore, is not the continuing violation of the human rights of a single applicant, but of thousands of other subjects. A fortiori , therefore, the Court does have reason to require the State to remedy this “systemic situation”. I wholeheartedly and unequivocally support this principled essence of the Court ' s decision.

What I do not agree with is the ambivalent and hesitant rationale of the judgment. I do not think this Court needs, apart from the Convention itself, any additional legal rationalisation to legitimise its principled logic, and especially if it is to seek that legal basis in a resolution of the Committee of Ministers which, in fact, has quite a different pragmatic goal in mind. The Committee of Ministers refers to the underlying “systemic problem” which, typically, is the situation in which Italy found itself with its massive unreasonable delay problem, where the cases were not decided in good time and where justice had system at ically been denied because it had again and again been delayed. I simply do not agree with the last sentence of paragraph 190 where the majority says that “ that resolution has to be seen in the context of the growth of the Court ' s caseload, particularly as a result of series of cases deriving from the same structural or systemic cause ”. The reference in the first sub-paragraph of paragraph 193 to the “ threat to the future effectiveness of the Convention machinery ” has absolutely nothing to do with the principled position taken by the Court. Again, in the middle of the second sub-paragraph of paragraph 193 we say that “ the measures adopted must be such as to remedy the systemic defect underlying the Court ' s finding of a violation so as to not to overburden the Convention system with large numbers of applications deriving from the same cause ” . The true reason for the logic started in Scozzari and Giunta and continued in Assanidze has nothing to do with the Court ' s caseload.

It has, however, everything to do with justice.

[1] . Note by the Registry . The decision is reported in ECHR 2002-X.

[2] 1. See paragraph 46 below.

[3] 1. www.amw.com.pl.

[4] 2. www.anr.gov.pl.

[5] 1. Reply by the Minister for Infrastructure of 12 July 2002 ; available on the Polish Parliament’s website: www.sejm.gov.pl.

[6] 1. That section was repealed on 30 January 2004 , by virtue of section 14 of the December 2003 Act (see also paragraph 118 below ).

[7] 1. In the consolidated text of the Land Administration Act 1985 (cited in paragraph 46 above ) , that provision became section 81(1).

[8] 1. The Court’s translation is based on the text of the official translation made for the research department of the Sejm (lower house of the Polish Parliament) Chancellery.

[9] 1. The district in which the applicant’s claim was registered at that time; see also paragraphs 22 and 26 above.

[10] 1. See paragraph s 103-04 below .

[11] 2. See paragraph 6 7 above.

[12] 1. That provision reads: “When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”