D ISSENTING OPINION OF JUDGE RESS

1. I concur with the dissenting opinion of Judges Costa and Garlicki except for the last point on the violation or non-violation of Article 1 of Protocol No. 1. In this respect I am of the opinion that the judgment of the Chamber and its reasoning were correct and more convincing than the finding of the majority of the Grand Chamber.

2. The applicant exhausted domestic remedies. The respondent State should have been aware that in the domestic proceedings the applicant was also rais ing the problem of his pension (property) rights within his arguments on proportionality.

Furthermore, the pension rights of public servants relate to services done by the relevant persons and are thus dependent on “contributions” in a more general way. It would be arbitrary to place the dividing line under the property aspect between those public servants who are working within a system of social security contracts where contributions are formally paid and those whose contributions are from the very beginning indirectly deducted from their salaries and thus to be paid by the State.

3. Furthermore, I have no doubt that it was appropriate for the national authorities to take disciplinary measures in addition to the criminal conviction of the applicant and to opt also for his dismissal, in view of the seriousness of the offences, even though the amounts of money embezzled were given for charitable purposes to the President of the Republic Assistance Fund. A disciplinary penalty which retroactively deprived the applicant (and thus his family) of all retirement benefits, amounted in my view to a criminal not a disciplinary penalty. It is possible under Article 6 of the Convention and Article 1 of Protocol No. 1 to include such penalties, even if otherwise defined in domestic law, under the heading of criminal penalties, and indeed rather severe ones. But the domestic courts did not order him to pay in addition to the prison sentence a substantial fine. As a disciplinary penalty, the retroactive forfeiture of the individual ' s pension cannot be said to serve any commensurate purpose. Furthermore, the retroactive forfeiture of all pension rights as a “criminal penalty” may , when calculated per capita , amoun t to a sum which under criminal- law aspects may be considered disproportionate for any purpose. Article 1 of Protocol No. 1 makes exceptions for penalties but not for this kind of retroactive forfeiture of all pension rights. The argument that the applicant could have foreseen such effects is not convincing, since the regulation as such, whether foreseeable or not, must be considered particularly harsh and incompatible with the required balance that must be struck between protection of the individual ' s property rights and the public interest. The fact that the relevant law has been changed and a part of the pension rights reserved for the members of the family show s that the legislature of the respondent State was well aware of the lack of proportionality of the legal rules applicable to the applicant.

[1] 1. See Müller v. Austria , no 5849/72 , Commission’s r eport of 1 October 1975, Decisions and Reports ( DR ) 3, p. 25; X v. Austria , no 7624/76, Commission d ecision of 6 July 1977, DR 19, p. 100; T . v. Sweden , no. 10671/83, Commission d ecision of 4 March 1985, DR 42 p. 229; Sture Stigson v. Sweden , no. 12264/86, Commission d ecision of 13 July 1988, DR 57, p. 131; Skórkiewicz v. Poland (dec.), no . 39860/98 , 1 June 1999; Domalewski v. Poland (dec.), no. 34610/97, ECHR 1999-V; Janković v . Croatia (dec.), no. 43440/98, ECHR 2000-X; and , as to entitlements to social benefits, see also Gaygusuz v. Austria , judgment of 6 September 1996, Reports of Judgments and Decisions , 1996- IV , and Koua Poirrez v. France , no. 40892/98, ECHR 2003 -X .