CONCURRING OPINION OF JUDGE LEMMENS

I voted with my colleagues in favour of finding a violation of A rticle 1 of Protocol No. 1. However, I would have preferred a slightly different reasoning for rejecting the Government ’ s argument that “ the applic ant ... originated the judicial phase of the expropriation process by failing to reach a friendly agreement with the authority on the amount of the compensat o ry award ” ( see paragraph 7 9 of the judgment ).

The majority set out an involved argument to demonstrate that the applic ant ’ s conduct in no way justified requiring him to defray the opposing party ’ s legal fe e s ( see paragraphs 74-76 of the judgment ).

I take the view that it would have been suffi cient to note that the applic ant was not order to pay those fees as a sanction f or any possible abusive or wrongful conduct. The only lawful basis f or ordering the applic ant to pay those fees was A rticle 330 of the C ode of Civil Procedure , which provides that the “ losing party ” must be order ed to reimburse the legal fees payable to counsel for the opposing party ( see paragraph 38 of the judgment ). This is a mechanical rule which has nothing to do with the conduct of the parties. Since the authority had been allowed to transfer the ownership of the property, the applicant in the present case could have been considered as the (partly) losing party (cf. paragraph 80 of the judgment, in which the majority consider that it is “ difficult in the present case to designate the applicant as the ‘ losing party ’ ” ).

Moreover, I consider that neither the fact that the applicant obtained, though judicial channels, a higher amount than that set by the authority before the opening of the negotiation phase (see paragraph 80 of the judgment), nor tale fact that under a friendly settlement he could not have obtained any amount higher than the latter one (see paragraph 81 of the judgment) is of any relevance in the present case.

The only decisive factor is that, under the regulations on costs and expenses , the applicant was in fact deprived of 60% of his compensation for expropriation. That is sufficient to conclude that an exorbitant burden was placed on him, upsetting the requisite balance between individual rights and the general interest (see paragraph 88 of the judgment).