CONCURRING OPINION OF JUDGE koskelo

1. I agree with my colleagues that there has been no violation of Article 6 § 2 and a violation of Article 1 of Protocol No. 1 in the present case. I have, however, found it necessary to submit this separate opinion because of the reasoning by which the judgment concludes that the applicant had a “possession” protected under Article 1 of Protocol No. 1.

2. The interpretation of what constitutes “possessions” is cardinal in the context of Article 1 of Protocol No. 1 as the notion defines and delineates the scope of application of the provision. It is therefore important to reflect on how this concept is to be understood. The incremental and often casuistic evolution of the Court’s case-law may give rise to situations where the contours of key concepts, in their autonomous meaning, turn out to be lacking in clarity or consistency. Such a state of affairs creates difficulties not least at the domestic level, where the primary responsibility of ensuring compliance and respect for the protected Convention rights lies. For the Court itself, and for the effectiveness of the Convention system as a whole, the scope of the Court’s substantive jurisdiction is a matter of potentially far-reaching implications. There is thus a twofold need for clarity and consistency. It is against this background that the present opinion should be seen.

3. As far as the specific circumstances of the present case are concerned, there is no doubt, in my view, that the applicant’s complaint did engage the application of Article 1 of Protocol No. 1. He had paid in the requisite amount by way of a guarantee intended to secure the performance of his contractual obligations, and thus had at least a legitimate expectation that he would not forfeit the right to its reimbursement in the absence of any breach of contract on his part.

4. The Chamber, however, relies on a much broader form of words to explain why Article 1 of Protocol No. 1 is applicable in the circumstances of the present case. This is what, in my view, calls for attention.

5. According to the judgment, the applicant had a “possession” because he had “at least a legitimate expectation of being able to rely on the contract and complete it and expect the return of his guarantee, and this may be regarded, for the purposes of Article 1 of Protocol No. 1, as attached to the property rights granted to the applicant under the contract” (see paragraph 65 of the judgment, emphasis added). This rather convoluted formulation gives rise to several questions regarding the notion of “possession” as set out in that provision and as hitherto interpreted by the Court. In particular, it appears that no distinction has been made, or maintained, between contractual rights and property rights.

6. It is worth noting at the outset that the above wording in paragraph 65 of the judgment appears to be modelled on what the Court stated in Stretch v. the United Kingdom, where a similar formulation was used, albeit in different circumstances. In that case, the Court held that the applicant was to be regarded as having at least a legitimate expectation of exercising the option to renew [the existing contract of land lease] and that this might be regarded, for the purposes of Article 1 of Protocol No. 1, as attached to the property rights granted to him by Dorchester under the lease (see Stretch v. the United Kingdom , no. 44277/98, § 35, 24 June 2003). What is essential is that, in Stretch , the original lease contract entailed that the complainant had to erect at his own expense several buildings for light industrial use on the leased land and he was entitled to sub-let them for rent. The reference to “property rights granted” thus contemplated the investment already made by the lessee in the buildings he had erected by virtue of the original lease, the extension of which was at issue. The facts of the present case are thus not comparable to those in Stretch .

7. Under the contract from which the present complaint arises, the applicant undertook to construct a flood-prevention scheme for a local river basin. According to the above-cited conception adopted by the Chamber, that contract entailed that the applicant was “granted property rights”. This raises the question: what were the “property rights” granted under that particular contract? On the other hand, the same sentence refers to the applicant’s having a “legitimate expectation” of being able to rely on the contract. The idea of “property rights” and “legitimate expectations” are thus conflated.

8. What is clear is that by performing the agreed work, the contractor earns the agreed remuneration. Such a receivable undoubtedly constitutes a claim which falls under the notion of “possessions” for the purposes of Article 1 of Protocol No. 1. The wording of paragraph 65, however, suggests that the contract as such amounts to “property rights” for the benefit of the constructor as obligor, even to the extent that the works have not yet been performed and the remuneration has thus not yet been earned.

9. There is no doubt that as a matter of contract law, the applicant had both the right and the obligation to perform the agreed works, and the right to obtain the agreed payment for that performance. It does not follow, however, that these contractual rights also constitute “property rights” for the purposes of Article 1 of Protocol No. 1. The scope of the notion of “possessions” in this context is an issue that calls for closer analysis. The provision, after all, is concerned with the “right to property” and not with contractual rights in general.

10. In its case-law the Court, and formerly the Commission, have consistently held that “future income” can only constitute a “possession” to the extent that it has already been earned, or is definitely payable (see Batelaan and Huiges v. the Netherlands (dec.), no. 10438/83, D.R. 41, p. 176: E.M. v. Norway (dec.), no. 20087/92, 26 October 1995 [Plenary Commission]; Wendenburg and Others v. Germany (dec.), no. 71630/01, 6 February 2003; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007 ‑ I; and Malik v. the United Kingdom , no. 23780/08, § 93, 13 March 2012).

11. The question at present is whether it is correct, or justified, to classify prospective income from an existing contractual relationship as a “possession”, even where it has not yet been earned through performance of the corresponding contractual obligations and is not otherwise definitely payable. The formulation used in the present judgment appears to make such an assumption. There is, however, no clear support for this position in the existing case-law. As already indicated above (see paragraph 6), the case of Stretch must be distinguished on the facts. The same appears to apply to other case-law dealing with contractual situations. In Fedorenko v. Ukraine (no. 25921/02, § 25, 1 June 2006), the context of the case was that the applicant had contracted to sell his house to the State, and the dispute concerned a clause regarding the determination of the price, which thus had a direct impact on the value of the applicant’s existing property in the context of its sale. In Association of General Practitioners v. Denmark ((dec.), no. 12947/87, 12 July 1989), the dispute concerned the level of fees that doctors could charge for treating their patients under an existing framework agreement, but their actual entitlement to remuneration obviously remained contingent on the treatment provided to each patient. Accordingly, at issue were the amounts due upon actual performance. The Commission did “not exclude” that Article 1 of Protocol No. 1 might be applicable but declared the application inadmissible on other grounds. In Asito v. Moldova (no. 40663/98, § 60, 8 November 2005), the complaint concerned the annulment of a contract in circumstances where the applicant had already made a financial contribution to the other party under the contract. In Ceni v. Italy (no. 25376/06, §§ 43-44, 4 February 2014), the Court expressly stated that the applicant’s rights under Article 1 of Protocol No. 1 were engaged in the context of a preliminary contract for the purchase of an apartment on the grounds that she had already paid the price and obtained possession. Furthermore, in Topallaj v. Albania (no. 32913/03, § 95, 21 April 2016), the Court held that no “possession” existed on the basis of contracts that were conditional on the fulfilment of events which never came to fruition. The circumstances in that case were particular, and did not address the present question as to whether a contract could in general be considered to constitute a “possession” for the obligor, even to the extent that it has not yet been performed by the latter.

12. Thus, in the light of the actual circumstances of the above cases, the Court’s existing case-law does not, in my view, lend support for a proposition entailing a general assimilation of contractual rights with property rights for the purposes of the scope of application of Article 1 of Protocol No. 1, in particular to the extent that the obligor cannot rely on pecuniary rights which have already been earned through the actual performance of obligations under the contract.

13. If indeed the contractual right to “rely on the contract” is classified as a “possession”, many consequences would follow.

14. For instance, to mention just one, such a position would call into question the Court’s settled case-law in the context of civil service/public employment law, where the Court has consistently held that a public servant’s removal from office and the resultant loss of future income does not affect his or her “possessions” and thus does not engage the application of Article 1 of Protocol No. 1 (see Nazif Yavuz v. Turkey (dec.), no. 69912/01, 27 May 2004; Kurtulmuş v. Turkey (dec.), no. 65500/01, ECHR 2006-II; and Buterlevičiūtė v. Lithuania , no. 42139/08, § 70, 12 January 2016).

15. Notably , in this line of case-law, the Chamber in Baka v. Hungary (no. 20261/12, judgment of 27 May 2014) concluded that the applicant, who had been prematurely dismissed from his post as President of the Supreme Court of Hungary, could not rely on Article 1 of Protocol No. 1 in respect of his loss of income and other requisite benefits. That complaint was declared inadmissible as being incompatible ratione materiae with the provision in question, on the following grounds:

“105. The Court reiterates that future income cannot be considered to constitute ‘possessions’ unless it has already been earned or is definitely payable (see Erkan v. Turkey (dec.), no. 29840/03, 24 March 2005 and Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007 ‑ I). There is no right under the Convention to continue to be paid a salary of a particular amount (see Vilho Eskelinen and Others [GC], cited above, § 94). The dismissal of the applicant from the post of President of the Supreme Court indeed precluded him from receiving a further salary in that post. Furthermore, the new legislation passed in 2011 prevented him from enjoying the special post-retirement benefits as a former President of the Supreme Court. However, that income had not been actually earned. Nor can it be argued that it was definitely payable (see Volkov v. Ukraine (dec.), no. 21722/11, 18 October 2011; see conversely , N.K.M. v. Hungary , no. 66529/11, 14 May 2013).”

16. There is no evident reason why, in the assessment of whether or not there is a “possession”, there should be a crucial distinction, in terms of the position of pecuniary benefits not yet earned through actual performance, between the situation of a person relying on a contract and that of a person relying on a status such as that of civil servant – including a judge, whose right to remain in office is an essential tenet of the rule of law. This serves as an illustration as to why the interpretation of the notion of “possessions”, and the distinctions made in this context, raise some rather pressing questions.

17. In the event that a contract, or a status such as that of civil servant, were to be classified as a “possession” for the purposes of Article 1 of Protocol No. 1, under such a state of the law any measure based on a breach of contract, or breach of duty, would fall to be analysed as an interference with rights protected under that provision. Possible complaints arising from such situations would then in principle fall to be examined on their merits, whether based on the negative or the positive obligations incumbent on the States Parties.

18. In sum, the issues raised by the reasoning adopted in the present judgment regarding the notion of “possessions” are of considerable general interest. As already mentioned, the implications could be considerable, including for the Court’s caseload and case-processing time, as well as for legal certainty. The extent to which contractual or other similar relationships engage the application of Article 1 of Protocol No. 1 is a question that would call for a thorough analysis and a clear articulation of the principles and distinctions that should govern the interpretation of that key concept. While the outcome of this particular case does not depend on this point (see paragraph 3 above), it appears that the Court will need to revisit the issues in an appropriate future context.

[1] The term “progress report” ( hakediş raporu ) is used in Turkish law to describe interim statements sent by a contractor or service provider to its client as the work progresses and entitling it to instalment payments.