JOINT DISSENTING OPINION OF JUDGES KJØLBRO AND RANZONI

1. Regretfully, we are not able to share the view of the majority that there has been a violation of Article 1 of Protocol No. 1. For the reasons explained below, we are of the view that this part of the applicant ’ s complaint should have been declared inadmissible ratione materiae as the applicant does not have a “possession” within the meaning of that provision (see paragraph 96 of the judgment).

2 . Furthermore, even assuming Article 1 of Protocol No. 1 to be applicable in the present case, we cannot share the view of the majority that the alleged interference was arbitrary and therefore in violation of that provision (see paragraphs 112-115 of the judgment).

3 . Consequently, we cannot subscribe to the majority ’ s reasoning that there is no need to examine separately the applicant ’ s complaint under Article 6 § 2 of the Convention (see paragraph 121 of the judgment). However, as the majority do not assess this part of the applicant ’ s complaint, we shall also refrain from doing so in our dissenting opinion.

As to the question of the applicability of Article 1 of Protocol No. 1 ratione materiae

4 . On 21 February 2006, following the institution of criminal proceedings on charges of abuse of office and forgery of documents while performing judicial duties, the applicant, a judge in the Vilnius City Third District Court, was suspended from her judicial duties without salary (see paragraph 8 of the judgment) and on 18 July 2011, following disciplinary proceedings, was removed from office for having discredited the title of judge (see paragraph 23 of the judgment).

5 . When the criminal proceedings against the applicant were discontinued as prosecution had become time-barred (see paragraph 12 of the judgment), the applicant instituted proceedings claiming unpaid salary for the period from 21 February 2006 to 18 July 2011. However, her claim was dismissed, first in civil proceedings for reinstatement and unpaid salary (see paragraphs 32-35 of the judgment) and subsequently in civil proceedings for damages (see paragraph 55 of the judgment).

6 . The first question to be assessed is whether the applicant ’ s claim for unpaid salary concerned a “possession” within the meaning of Article 1 of Protocol No. 1, a condition sine qua non for the applicability of that provision.

7 . Before the domestic courts as well as the Court, the applicant based her claim and thus her alleged “possession” on Article 47 § 3 of the Law on Courts. According to the version of that provision that was applicable on 21 February 2006, when the applicant was suspended from her judicial duties without salary, a judge ’ s duties were restored and salary repaid if the judge “[was] declared innocent” in the crim inal proceedings (see paragraph 58 of the judgment); according to the version applicable on 18 July 2011, when the applicant was dismissed, a judge ’ s duties were restored and salary repaid if the judge “[was] not found guilty by a court judgment in a criminal case” (see paragraph 58 of the judgment).

8 . The applicant argued that because the criminal proceedings against her had been discontinued as prosecution had become time-barred, she was entitled to the repayment of her salary, a position contested by the defendants in the civil proceedings.

9 . In deciding whether a claim, in this case the applicant ’ s claim based on Article 47 § 3 of the Law on Courts, is pro tected by Article 1 of Protocol No. 1, it is worth recalling the Court ’ s established case-law according to which a claim may constitute an “asset” if it is “... sufficiently established to attract the guarantees of Article 1 of Protocol No. 1. In this context, it may also be of relevance whether a ‘ legitimate expectation ’ of obtaining effective enjoyment of the coins arose for the applicant in the context of the proceedings complained of ...” (see Kopecký v. Slovakia [GC], no. 44912/98, § 42, ECHR 2004 ‑ IX ).

10 . In this context, it is worth reiterating that “... no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant ’ s submissions are subsequently rejected by the national courts ...” (see Kopecký , cited above, § 50).

11 . In other words, the Court ’ s case-law “... does not contemplate the existence of a ‘ genuine dispute ’ or an ‘ arguable claim ’ as a criterion for determining whether there is a ‘ legitimate expectation ’ protected by Article 1 of Protocol No. 1. ... On the contrary, the Court takes the view that where the proprietary interest is in the nature of a claim it may be regarded as an ‘ asset ’ only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it ” (see Kopecký , cited above, § 52).

12 . The above citations from the Court ’ s case-law reflect, in our view, established case-law that is – or should be – decisive for the adjudication of the present case (see, for example, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 173, ECHR 2012; Béláné Nagy v. Hungary [GC], no. 53080/13, § 75, 13 December 2016; Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018; Bikić v. Croatia , no. 50101/12, §§ 49-56, 29 May 2018; and Basa v. Turkey , nos. 18740/05 and 19507/05, §§ 83-103, 15 January 2019).

13 . In our view, a correct application of the Court ’ s case-law leads to the conclusion that the applicant did not have a “legitimate expectation” and thus not a “possession” within the meaning of Article 1 of Protocol No. 1. Consequently, the provision in question is inapplicable.

14 . The present case is a clear example of a situation where there is a dispute between an applicant and a defendant State about the correct interpretation and application of a domestic provision. The applicant ’ s claim and arguments were put before and duly considered by the domestic courts in two sets of civil proceedings and were ultimately rejected. In addition, the applicant relied only on the wording of the relevant provision and did not refer to any domestic case-law supporting her reading of the domestic provision. Bearing that in mind, it is important to stress that it is not for the Court to create a “possession” that does not exist and is not recognised under domestic law.

15 . The majority fail to engage in a discussion of the above-mentioned case-law and simply agree with the applicant ’ s reading of Article 47 § 3 of the Law on Courts (see paragraph 96 of the judgment). We find this omission and the scant nature of the majority ’ s reasoning on this point problematic, and for the reasons explained above, and basing our position on the Court ’ s established case-law, we reach the conclusion that the applicant may very well have had an “expectation” based on her reading of the relevant domestic provision, but that her claim was not sufficiently established to amount to a “legitimate expectation” within the meaning of the Court ’ s case-law. Consequently, Article 1 of Protocol No. 1 is inapplicable ratione materiae .

As to the question of the lawfulness of the interference with Article 1 of Protocol No. 1

16 . Even assuming that the applicant, on the basis of the wording of Article 47 § 3 of the Law on Courts, had a “legitimate expectation” within the meaning of the Court ’ s case-law, we respectfully disagree that the interference, that is, the domestic courts ’ dismissal of the applicant ’ s claim in the two sets of civil proceedings, was arbitrary and therefore unlawful.

17 . It follows from the case-law that the Court, when assessing whether an interference was in accordance with the law and thus lawful, will normally respect the domestic courts ’ interpretation and application of domestic law unless it is “arbitrary or manifestly unreasonable”.

18 . To illustrate this, the Court has stated as follows:

“... power to review compliance with domestic law is limited. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, even in those fields where the Convention ‘ incorporates ’ the rules of that law, since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection ... This is particularly true when, as in this instance, the case turns upon difficult questions of interpretation of domestic law ... Unless the interpretation is arbitrary or manifestly unreasonable, the Court ’ s role is confined to ascertaining whether the effects of that interpretation are compatible with the Convention ...” (see Radomilja , cited above, § 149).

19 . The “arbitrary or manifestly unreasonable” principle referred to is well established in the Court ’ s case-law, including in cases concerning Article 1 of Protocol No. 1 (see, for example, Fredin v. Sweden (no. 1) , 18 February 1991, § 49, Series A no. 192; HÃ¥kansson and Sturesson v. Sweden , 21 February 1990, § 47, Series A no. 171 ‑ A; Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000 ‑ I; Baklanov v. Russia , no. 68443/01, §§ 42-47, 9 June 2005; and Jahn and Others v. Germany [GC], nos. 46720/99 and 2 others, § 86, ECHR 2005 ‑ VI).

20 . In the view of the majority, it was not foreseeable to the applicant that she would be denied payment of her salary for the period of her suspension during criminal proceedings “in the absence of a conviction” (see paragraph 115 of the judgment). In other words, the majority, on the basis of the wording of Article 47 § 3 of the Law, merely confirm the applicant ’ s reading of that provision. In doing so, they argue that the domestic courts, in dismissing the applicant ’ s claim, “added an additional statutory element” that was not found in Article 47 § 3 of the Law on Courts, and that the domestic courts ’ reasoning “lacked precision and consistency” (see paragraphs 112-113 of the judgment). Regretfully, we cannot subscribe to the majority ’ s reasoning.

21 . The applicant ’ s situation, whereby criminal proceedings had been discontinued as prosecution had become time-barred, was not directly regulated in the wording of Article 47 § 3 of the Law on Courts, either as the provision was worded when the applicant was suspended in 2006 or as it was worded when the applicant was dismissed in 2011. As already mentioned, according to the version applicable in 2006, a judge was to be restored and his or her salary repaid if the judge “[was] declared innocent”. According to the version applicable in 2011, a judge was to be restored and his or her salary repaid if the judge “[was] not found guilty”.

22 . In other words, the domestic courts were called upon to decide on a claim arising in a situation that was not directly regulated in the wording of the provision. They were called upon to assess whether a situation in which criminal proceedings were discontinued as prosecution had become time-barred, that is where there was neither a conviction nor an acquittal, could be compared to or equated with a judge being “acquitted” or “not found guilty”. In both sets of proceedings, the domestic courts relied on Article 47 § 3 of the Law on Courts as worded in 2011, when the applicant was dismissed, and provided extensive reasoning for their decisions (see paragraphs 28, 33 and 55 of the judgment).

23 . Without going into a detailed analysis of the domestic courts ’ rulings, we fail to see how their interpretation and application of Article 47 § 3 of the Law on Courts can be characterised as “arbitrary or manifestly unreasonable” (it being noted that the majority relied only on its being “arbitrary”).

24 . The majority criticise the domestic courts for having introduced or added an element that was not reflected in Article 47 § 3 of the Law on Courts, that is, whether the suspension had been “unreasonable” (see paragraphs 112-113 of the judgment). Such wording can be found in the Regional Court ’ s judgment of 7 June 2012 (see paragraph 28 of the judgment), but was used in a context where the Regional Court was explaining the meaning of the legal conditions in Article 47 § 3 of the Law on Courts. This is reflected in the wording of the Regional Court (“... that rule means that ...”). Similar wording can also be found in the Court of Appeal ’ s judgment of 20 April 2016 (see paragraph 55 of the judgment) when it referred to “duties unreasonably restricted”, but this reference too was made in the context of explaining the meaning of the legal conditions in Article 47 § 3 of the Law on Courts. This is reflected in the wording used by the Court of Appeal (“... the aim of that provision was ...”).

25 . As already mentioned, the domestic courts were called upon to decide on a claim not directly regulated in the wording of the provision in question. Therefore, not surprisingly, the domestic courts could not simply rely on the wording of the provision but had to interpret it in the light of the purpose and meaning of the legal conditions stipulated in Article 47 § 3 of the Law on Courts. It is not decisive whether the Court agrees or disagrees with the domestic courts ’ interpretation and application, and, in our view, such an interpretation and application of domestic law is far from reaching the threshold of being “arbitrary or manifestly unreasonable”.