CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I agree with my colleagues that the interference with the applicant ’ s rights was incompatible with the principle of lawfulness. However, I disagree with the reasoning in the instant case.

2. The reasoning refers in paragraph 44 to the decision of the High Court of Cassation of 19 March 2007 “according to which the legal texts setting out an adjustment of the compensation mechanism were ‘ clear and unquestionable ’ , in view of the main purpose of the law, which was restitutio in integrum , namely to fully compensate the claimants.” The Court states furthermore that “the impugned interference, in the form of the Bucharest Court of Appeal ’ s judgment of 21 February 2005, was not foreseeable for the applicant who, relying on the existing case-law of the courts and on the applicable legal texts and principles, could reasonably have expected that his claim for adjustment of compensation would be granted” (paragraph 49, emphasis added). It should be stressed that in this paragraph the domestic case-law is regarded as sufficiently clear to create expectations of adjustment.

At the same time the Court places the emphasis on the conflicting judgments of the domestic courts (paragraph 47) and states the following in paragraph 48:

“The Court has also held that where such manifestly conflicting decisions interfere with the right to peaceful enjoyment of possessions and no reasonable explanation is given for the divergence, such interference cannot be considered lawful for the purposes of Article 1 of Protocol No. 1 to the Convention, because those conflicting decisions lead to inconsistent case-law which lacks the required precision to enable individuals to foresee the consequences of their actions (see Brezovec v. Croatia , no. 13488/07, §§ 67-68, 29 March 2011).”

In my view the above-mentioned passages reveal a contradiction in the reasoning. On the one hand, the majority allege that the national law was compatible with the requirements of clarity and foreseeability. On the other, they allege elsewhere in the reasoning that the national law was lacking in the required precision and foreseeability. How these two allegations could be reconciled, I do not know.

3. In my assessment, the domestic law was clear and unquestionable, as recognised by the High Court of Cassation in its judgment of 19 March 2009. The judicial decisions refusing the claim for the adjustment of compensation were based on an arbitrary interpretation of the existing legal provisions. They did not have any legal basis in domestic law. These considerations are sufficient to conclude that there has been a violation of Article 1 of Protocol No. 1.

In such a situation, where a certain type of interference with rights is clearly excluded by national law, the question whether this interference was foreseeable becomes without object. Under the rule of law, a clearly illegal interference cannot reasonably be regarded as foreseeable. The question of foreseeability becomes relevant if an interference with rights is permitted by national law.

4. The quality of reasons given in judicial decisions is the precondition for the judges ’ legitimacy. I regret that the reasoning in the instant case lacks sufficient precision and clarity.