PARTLY DISSENTING OPINION OF JUDGE CREMONA

Whilst I am in agreement with the judgment on the Article 6 para. 1 (art. 6-1) issue, I regret that I am unable to agree with the conclusion reached by the majority of my colleagues on the issue under Article 1 of Protocol No. 1 (P1-1). In finding, like the unanimous Commission, a violation also under this head, I consider it sufficient, for the sake of brevity, to say that in general I adopt in this regard the reasoning of the Commission in its report.

In particular, inasmuch as this case has been distinguished by the majority from that of Erkner and Hofauer I would simply add this. In this connection the judgment stresses that the applicants in the present case, unlike those in the other case, had agreed to the provisional transfer and accepted the compensatory plots (paragraph 77). Inasmuch as the implication is that only later did they change their minds, I think it is much fairer to say that what really happened is that they had their minds changed for them by something quite remarkable.

Land which in their hands as owners was simply agricultural was in the course of the consolidation proceedings redesignated by the local authorities, in the hands of the provisional owners to whom it had been allotted and at their request, as building land. In fact the applicants saw these provisional owners sell various plots of this land at a very handsome profit (the grant of building permits made the situation practically irreversible) without their being able to see this imbalance put right. Incidentally, it is also to be noted that when the applicants for their part requested authorisation to construct two animal feed silos on their compensatory plots the authorities refused on the ground that they were provisionally owners of the land in question (paragraph 29).

Admittedly the reallocation to the applicants of part of their former land and the hypothetical possibility that some more may possibly be returned to them when the consolidation scheme is eventually definitely approved (paragraph 77) may to some extent alleviate the position, but to my mind do not cure it.

The fact remains that there was an unjustified interference with the applicants ’ property which has already lasted eleven and a half years without their having been able to obtain redress. Like the unanimous Commission, I therefore consider that the applicants have thereby suffered more than a temporary disadvantage which parties to consolidation proceedings can reasonably be expected to sustain, that there was no appropriate balance between the measures taken in the public interest and the protection of the applicants ’ right of property and that they had to bear a disproportionate burden incompatible with their right to the peaceful enjoyment of their possessions.

[*]  The case is numbered 38/1990/229/295.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 213 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.