DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

1. I am unable to agree with the finding that there has been no violation of Article 1 of Protocol No. 1, unlike the majority of the Chamber in the present case. I find this case somewhat odd and confused, when one attempts to follow the logic of the various events in question. Perhaps there was some information missing from the file, perhaps I did not properly understand the sequence of events, perhaps I failed to understand how domestic law was to be applied; or perhaps all three.

2. There are five findings of fact that strike me as noteworthy.

- For the expropriation of 17,998 sq.m. of land, the first applicant received compensation equivalent to 850 euros, which represents less than one thousandth of the cadastral value; the second applicant received about 13,500 euros for an area of 47,740 sq.m., some 350 times lower than the cadastral value (see paragraph 92 of the judgment). Those sums were calculated according to the cadastral values of 1940 pursuant to Article 2 of the Supreme Council’s decision of 15 September 1992 (see paragraphs 7, 12 and 13 of the judgment).

- By way of reimbursement of rent arrears, and in accordance with judicial decisions against the Free Port, the second applicant received compensation of about 448,150 and 145,000 euros and the first applicant about 85,000 euros. Those sums corresponded to a percentage applied to the cadastral value (of 1996 ) of the land occupied, in accordance with the law enacted by Parliament on 6 November 1996 (paragraphs 16, 17 and 18 of the judgment).

- After the expropriation of the land pursuant to the law of 30 October 1997, and the payment of the said sums of 850 and 13,500 euros to the applicants, the State became the owner of the properties and now, in turn, receives high rents from the Free Port for the use of the land (see paragraph 65 of the judgment; the applicants’ claim not having been contested by the Government).

- The said decision of the Supreme Council dated 15 September 1992 governs the arrangements for the re-entry into force of the 1923 Expropriation (Public Interest) Act. Section 1 of that Act provides that expropriation is authorised only in exceptional cases, always with payment of compensation and on the basis of a special law ; and Article 9 stipulates that the amount of the compensation is to be fixed by friendly agreement or, failing that, by a court (see paragraphs 39 and 40 of the judgment).

- Lastly, in my opinion, the special law (of 30 October 1997, concerning the applicants) supplements the General Act, but does not derogate from it, unless otherwise indicated expressly, and therefore section 9 of that Act remains applicable. In addition, the fact that the Supreme Council’s decision of 15 September 1992 limited the expropriation compensation to the cadastral value of 1940 did not preclude, in respect of the sum payable, negotiation to reach a friendly agreement between the parties, or failing that, examination by a court (see paragraphs 41 and 90 of the judgment). Moreover, the judgment points out the need for “a procedure ensuring an overall assessment of the consequences of the expropriation, including the award of an amount of compensation in line with the value of the expropriated property ... and the settlement of any other issues relating to the expropriation” (paragraph 87).

3. From these five findings, taken together, it should be possible to derive a slightly better understanding of the case, in terms of the political and economic reasoning underlying the entire process from the denationalisation of the property (early 1990s) to the expropriation or renationalisation (late 1997). I am not questioning the public-interest grounds for the expropriation, although I do have some doubts about the “conditions provided for by law”. However, for me, the real problem is the question of “proportionality” and “fair balance”.

4. I fully agree with the case-law principle that legitimate objectives of public interest may call for less than reimbursement of the full value of the property, and that measures of economic reform or measures designed to achieve greater social justice may justify compensation that does not reflect that full value (see paragraph 84 of the judgment). However, the taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference and runs counter to the fundamental principles of Article 1 of Protocol No. 1 (this is in fact pointed out in paragraph 83 of the judgment).

5. I also find it difficult to accept some of the arguments on which the majority have based their conclusions in this case. The land in question had been finally denationalised in favour of the heirs of the lawful owners in the early 1990s; subsequently (in 1994) it was allocated to the applicants under contracts of donation. Therefore, at the time the special expropriation law of 30 October 1997 was enacted the property had already been, for several years, completely in the private domain, regardless of the legal instruments giving rise to that situation (provided, of course, that those instruments were legal). Thus, the majority’s argument to the effect that “the restitution of the properties at issue to the heirs of the former owners, followed by their donation to the applicants and then their expropriation, all took place within no more than a few years, the period in issue thus being relatively short and condensed” (paragraph 76 of the judgment), apart from being devoid of legal relevance, does not serve to justify the very small sums awarded to the applicants by way of compensation (sums representing less than 5%, not even of the actual value of the property in question, but of the value of the rent received by the new owner of the property, namely the Government).

6. The applicants’ good faith as to the acquisition of the property concerned has never been called into question or contested at domestic level, and the first assessment proposed (in fact an indicative value for the sole purpose of calculating the registration tax, see paragraph 8 of the judgment) was never invoked against the applicants by the national authorities (paragraph 89). No problem ever arose in relation to either of these aspects. Similarly, I find it inappropriate to emphasise that the property had been acquired by donation, “that is to say free of charge” (paragraph 93) and to refer to a “windfall” (paragraph 94). Lastly, whilst agreeing with the idea that the State has a duty to resolve related problems, which are often complex and sensitive, arising from a denationalisation process, I find that to cite the example of “fraudulent enrichment” is inappropriate in the present case (paragraph 77).

7. Without wishing to adopt any position as regards the actual value of the expropriated land or the amount that could reasonably have been awarded in compensation, I take the view that the applicants, in the circumstances of the present case, were obliged to bear a disproportionate and excessive burden and that the impugned measure upset the “fair balance” to be struck between the protection of property rights and the requirements of the general interest.