CONCURRING OPINION OF JUDGE WOJTYCZEK

1. I have voted for finding a violation in the instant case because I agree that an excessive burden has been placed on the applicants. This burden, stemming from the overturning of the administrative decisions (see paragraph 16 of the reasoning), should have been divided more equitably between the applicants and the State. However, I do not agree with the view that there is a violation on account of the fact that the applicants had to pay the State more money than they had received from selling the land they had bought from a third party. The State may still require that applicants pay more than they have received from selling their land, but not as much as decided by the domestic authorities in the instant case.

2. The intensity of protection of rights acquired by the way of an administrative act may vary. Administrative acts in certain fields require more stability than in others. In establishing the required level of protection regard must be had, in particular, to the nature of the acquired right, the specificities of the sphere of life concerned, the nature and weight of legally protected values at stake and the social context in which the relevant legislation was adopted and is applied. It is also important to take into account whether a right was acquired free of charge or against payment of a certain amount of money.

It appears that the process of land restitution to former owners in Lithuania was flawed by irregularities (see paragraphs 10 to 14). This was public knowledge. The applicants should have been aware that the problems arising in the restitution process may affect the stability of administrative acts issued therein. This consideration has to be taken account for the purpose of balancing the conflicting values. Obviously, it does not justify placing all the risk of annulment of illegal administrative acts on the citizens but is an argument in favour of an equitable repartition of the risk between them and the national community.

The applicants seem to be fully aware of this consideration because they proposed to share the burden stemming from the annulment of administrative decisions between the State and themselves (par. 24). The judgment of the Court goes beyond the claim of the applicants raised in the domestic proceedings.             

3. The applicants decided to sell their plots at a price below the market value, sacrificing a part of a potential gain. They could have sold the plots at a different price. In any event, the price they actually obtained should not be determinative for the appreciation of the damage they have suffered because of the decision ordering them to return the market value of the land.