JOINT CONCURRING OPINION OF JUDGES WOJTYCZEK AND PEJCHAL

1 . Economic liberty is a fundamental human right which is an essential element of the right to protection of possessions enshrined in Article 1 of Protocol No. 1 (see the dissenting opinion of Judge Wojtyczek appended to the judgment in the case of Könyv-Tár Kft and Others v. Hungary , no. 21623/13, 16 October 2018; compare also the view expressed by the Court in the judgment in the case of DoÄŸan and Others v. Turkey , nos. 8803/02 and 14 others, § 139 in fine , ECHR 2004 ‑ VI (extracts): “all these economic resources and the revenue that the applicants derived from them may qualify as ‘ possessions ’ for the purposes of Article 1”).

Economic liberty is also protected by EU law (Article 16 of the Charter of Fundamental Rights of the European Union) and by most of the constitutions of the High Contracting Parties. Constitutional provisions protecting economic liberty exist in particular in Albania (Article 11), Andorra (Article 28), Armenia (Article 59), Austria (Article 6 of 1867 Staatsgrundgesetz ), Azerbaijan (Article 59), Bulgaria (Article 19), Croatia (Article 49), Cyprus (Article 25), the Czech Republic (Article 26 of the Charter of Fundamental Rights and Freedoms), Denmark (Article 74), Estonia (§ 31), Finland (Article 18), Georgia (Article 6), Hungary ( ArticleXII ), Ireland (Article 45 3), Italy (Article 41), Liechtenstein (Article 36), Lithuania (Article 46), Luxembourg (Article II, 11 sub. 6), Malta (Article 18-21), Montenegro (Article 59), Poland (Article 20), Portugal (Article 61), Romania (Article 45), Russia (Article 34), San Marino (Article 10), Slovakia (Article 35(1)), Slovenia (Article 74), Spain (Article 38), Sweden (Article 17), Switzerland (Article 27), Turkey (Article 49), and Ukraine (Article 42). In some States, constitutional protection of business freedom stems from the constitutional court ’ s case-law. This is the case of, inter alia , France (decision of the Constitutional Council, no. 81-132 DC, 16 January 1982) and Germany (judgment of the Federal Constitutional Court, 8 February 1972, Steinmetz Wettbewerb , BVerfGE 32, 31; joint reading of Articles 2, 12 and 14 of the Basic Law). In all High Contracting Parties economic liberty is protected by ordinary legislation.

This short survey shows the European consensus that economic liberty should be effectively protected as an essential element of social order. The market economy, based upon economic liberty and private entrepreneurship, is the only economic system compatible with the Convention.

The potential of Article 1 of Protocol No. 1 for protecting economic liberty has long been left under-exploited both by potential applicants and by the Court. The instant case constitutes an important step towards developing a more efficient protection of economic liberty and towards transforming the Convention into a business-friendly international instrument, serving prosperity as one of the pre-conditions for the effective exercise of all other human rights and in particular social rights. In our view, the Court should, however, have gone one step further and should have explicitly recognised economic liberty as a fundamental human right protected by Article 1 of Protocol No. 1. To do this, it is not necessary to invoke the so-called “living instrument” argument, it suffices to rely upon the letter of this provision.

2 . The Preamble to the Convention refers to the ideal of “effective political democracy” and Article 3 of Protocol No. 1 guarantees the right to vote in elections to the legislative bodies and to determine – through elections – legislative policies. In an effective political democracy the citizens ’ right to determine policies encompasses economic and social policies. The people have, in particular, the right to define the precise scope of the market economy ’ s social dimension.

The Court ’ s case-law takes into account the rights enshrined in Article 3 of Protocol No. 1, without mentioning this provision, when it stresses the power of the State to regulate freely economic and social matters. Thus, for instance, in its judgment in the case of James and Others v. the United Kingdom (21 February 1986, § 46, Series A no. 98) the Court expressed the following view:

“The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature ’ s judgment as to what is ‘ in the public interest ’ unless that judgment be manifestly without reasonable foundation.”

Indeed, in economic and social matters as well as on societal issues the Court should exercise particular caution and show deference to the choices of the people. However, the regulative freedom left to national parliaments is not unlimited and any interference with possessions in general and economic liberty in particular should comply with the principles stemming from the Convention and, inter alia , with the principles of legality (see, for instance, Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 95, 25 October 2012) and proportionality (see, for instance, Gáll v. Hungary , no. 49570/11, § 41, 25 June 2013: “there must be a reasonable relationship of proportionality between the means employed and the aims pursued”). The Court, while exercising judicial self-restraint, cannot refrain from ensuring effective protection of fundamental freedoms protected by Article 1 of Protocol No. 1 against excessive restrictions. The Convention mechanism is aimed at striking a proper balance between the rights of citizens to political participation and other rights protected by the Convention and the Protocols thereto (see the dissenting opinion of Judge Wojtyczek appended to the judgment in the case of Firth and Others v. the United Kingdom , nos. 47784/09 and 9 others, 12 August 2014). In our view, in order to achieve this balance it is necessary to heighten the existing scrutiny standards under Article 1 of Protocol No. 1 and revise the “manifestly without reasonable foundation” test, which may amount to an almost irrebuttable presumption of compatibility with the Convention of any interference with possessions.

3 . At the same time, no one can question that nowadays banks perform functions which are essential for economic activity and that the States bear responsibility for enacting a legal framework ensuring the development and stability of the private banking sector and a fair balance between the different conflicting private and public interests at stake. Under Article 1 of Protocol No. 1, as interpreted in the present opinion, the weight of the public interests may justify – in a market economy – far-reaching State intervention in the functioning of banks, if the circumstances so require. Moreover, entrepreneurs have to bear in mind that failure on the market may mean that they will definitely lose their assets.

4 . The first issue which arises in the present case is the question of exhaustion of remedies and compliance with the six-month time-limit for lodging an application with the Court. We find it necessary to reiterate the following views expressed by the Court. In Lopes de Sousa Fernandes v. Portugal ([GC], no. 56080/13, § 134, 19 December 2017), it stated:

“At the outset, the Court stresses that determining whether a domestic procedure constitutes an effective remedy within the meaning of Article 35 § 1, which an applicant must exhaust and which should therefore be taken into account for the purposes of the six-month time-limit, depends on a number of factors, notably the applicant ’ s complaint, the scope of the obligations of the State under that particular Convention provision, the available remedies in the respondent State and the specific circumstances of the case.”

In Vučković and Others v. Serbia (nos. 17153/11 and 29 others, §§ 74-76, 25 March 2014), it explained:

“To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary , no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Akdivar and Others , cited above, § 71, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009). ... The Court has, however, also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Ringeisen v. Austria , 16 July 1971, § 89, Series A no. 13, and Akdivar and Others , cited above, § 69) ...”

Moreover, the “effectiveness” of a remedy for the purposes of Article 13 does not depend on the certainty of a favourable outcome for the applicant ( KudÅ‚a v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI and cases cited therein). In its judgment in the case of ÄŒervenka v. the Czech Republic (no. 62507/12, § 121, 13 October 2016), the Court expressed the following view concerning the question of the effectiveness of a remedy:

“The Court notes that it was not clear from the outset (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009, with further references) that the constitutional appeals would be ineffective in the applicant ’ s case. Taking also into account that in [case of] doubt about its effectiveness, the remedy in question should be tried, the Court cannot blame the applicant for having tried to exhaust it.”

In El- Masri v. the former Yugoslav Republic of Macedonia ([GC], no. 39630/09, § 141, ECHR 2012), the Court confirmed the established approach in the following terms:

“The Court considers that it could not have been reasonably presumed that, when it was introduced in October 2008, a criminal complaint was a clearly ineffective remedy. There were merely some doubts about its effectiveness, and the applicant was required under Article 35 § 1 of the Convention to attempt it before submitting his application to the Court. It would be unreasonable to expect the applicant to bring his complaints to the Court before his position, in connection with the matter, had been finally settled at domestic level in line with the principle of subsidiarity, according to which it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level.”

If the ineffectiveness of a remedy is not clearly established, that remedy should be used for the purposes of exhaustion.

5 . For an understanding of the instant case, it is important to highlight that, at the material time, there was in the domestic legal system a high level of uncertainty concerning the effectiveness of different remedies. The applicants chose a legal avenue which could not be seen from the outset, at the material time, as devoid of any prospects of success. The question whether the constitutional complaint was an effective remedy became clear only with decisions nos. U-III-736/2005 and U-III/1706/2005, adopted on 8 July 2013 and published in the Official Gazette on 24 and 31 July 2013 respectively (see paragraph 34).

We cannot agree with the view that with decision no. U-III-3471/2003 of 16 March 2006 (presented in paragraph 36) it became clear that a constitutional complaint in the instant case would be ineffective. Firstly, this last judgment was issued in the context of a lawsuit founded upon a different legal basis. Applicants should not be required to predict the prospects of success of a remedy on the basis of judgments and decisions concerning claims that relied upon different legal provisions, even if certain constitutional issues may be common to all such cases. Secondly, in a legal system which does not adhere to the principle of stare decisis or recognise the binding force of precedent, there is always a certain level of uncertainty as to whether a first judgment or decision concerning a legal issue will be followed. In particular, a court sitting in a different composition may interpret the relevant legal provisions differently. Applicants should be encouraged to plead on the basis of the Convention in order to seek to trigger changes in the domestic case-law, especially in States where the Convention is directly applicable. One has to note in this context that, in general, domestic courts in Europe develop attitudes that are favourable to the effective enforcement of the Convention rights and the Court should take this into account when assessing the question whether the applicants should have exhausted specific remedies (compare the partly dissenting opinion of Judge Wojtyczek appended to the judgment in the case of Camelia Bogdan v. Romania , no. 36889/18, 20 October 2020 (not yet final)). Thirdly, outcomes of cases may depend upon the quality of the pleadings. A party convincingly pleading a new case may obtain a different outcome. Fourthly, what matters here is not whether the Constitutional Court would have examined the gist of the applicant ’ s case but whether the possible quashing of the final judgment by this domestic court could result in the examination of the gist of the grievance by any domestic court.

In such circumstances, it would be difficult to blame the applicants for not lodging their application earlier. Had it been lodged before July 2013, pending the examination of the constitutional complaint, it would have been declared premature. At the same time, respondent States should not take advantage of the uncertainties concerning domestic remedies to get applications rejected as being lodged outside the six-month time-limit.

6 . In the instant case, the Chamber decided not to address the issue whether the nationalisation as such of the bank had been compatible with Article 1 of Protocol No. 1 (paragraph 87). We would have preferred this issue to be explicitly addressed. Under Article 1 of Protocol No. 1, as interpreted in the Court ’ s case-law, if the domestic authorities interfere with the right to protection of possessions, they should observe in particular the principle of proportionality (as already mentioned) and should justify the interference. Under both the Convention and domestic law (see paragraph 25), nationalisation should be seen as a measure of last resort (compare also the standards set forth subsequently in Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council, in particular recital 13 and Article 32; it must be stressed that at the material time Croatia was not a member of the European Union).

The domestic authorities made a number of factual findings concerning the bank ’ s financial situation at the time of nationalisation. There is no doubt that its financial situation deteriorated severely and that it was facing serious difficulties. It appears that the conditions set forth in the domestic legislation for recovery and restructuring proceedings were fulfilled. However, the question whether the bank should have been nationalised is a different matter. It is necessary to note that several crucial issues connected with this question have not been addressed in the domestic proceedings. In particular, the authorities did not examine whether any means less restrictive than nationalisation were available. They did not assess with precision the real level of the risk of insolvency. They did not consider the possible evolution of the bank ’ s condition, taking into account its real capacity to recover uncertain debts and to develop other profit-making activities. Without taking a firm stance on the question whether the impugned interference was objectively justified, one has to conclude that the reasons adduced by domestic authorities to justify the bank ’ s nationalisation are not sufficient. The Court should have found a violation of Article 1 of Protocol No. 1 also for this reason.

When assessing the objective necessity of the interference, it is important to note that all four expert opinions commissioned by the Croatian Constitutional Court, for the purpose of the proceedings before it, show that the interference was disproportionate (see paragraph 10). The views and arguments presented by the national experts were not rebutted by any argument or evidence put forward by the Government before this Court. There are therefore strong indications that the impugned measures were not objectively justified. Under the Court ’ s case law, if the authorities do not justify an interference with a Convention right, the Court may find this interference disproportionate (see, for instance, Association Rhino and Others v. Switzerland , no. 48848/07, § 65, 11 October 2011; Biblical Centre of the Chuvash Republic v. Russia , no. 33203/08, § 58, 12 June 2014; Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, § 193-199, 23 February 2016; Biržietis v. Lithuania , no. 49304/09, § 58, 14 June 2016; Antonov and Others v. the Republic of Moldova and Russia , no. 315/10 1153/10 1158/10, § 90 2 July 2019; and P.T. v. the Republic of Moldova , no. 1122/12, § 29-33, 26 May 2020). However, one has to recognise that, upon the basis of the evidence presented to the Court in the instant case, it is impossible to establish all the relevant factual elements and thus to draw definitive conclusions in this regard.