CONCURRING OPINION OF JUDGE LEMMENS

I agree with my colleagues that there has been a violation of Article 1 of Protocol No. 1. However, I would have preferred a different reasoning.

I think that the reasoning in our judgment unnecessarily discusses a number of questions of fact and domestic law, both of which are, in principle, not a matter for the Court.

In my opinion, the issue in this case is relatively simple. The Supreme Court found in 2002 that the City of Vilnius and the Region of Vilnius had taken decisions, in 1994 and 1995, that were unlawful under domestic law. As a result, the Supreme Court ordered that the plot of land be returned by the second applicant to the State, that the first applicant return to the second applicant the sum he had received from the latter (LTL 6,000), and that the State reimburse the first applicant for part (LTL 422) of the sum it had received from him (LTL 422, plus 423 “single-use investment vouchers”). The first applicant was not compensated for the 423 vouchers he had transferred to the State. Nor was he compensated for the loss of the profit that he had made in 1997, when he managed to sell the land to the second applicant at a much higher price than that at which he himself had bought it from the State.

The first applicant complained that he had been deprived of his “property” without receiving adequate compensation.

I agree with the majority that, while the interference in the first applicant ’ s right to peaceful enjoyment of his possessions was in compliance with the conditions provided for by law and was in the public interest (see the conditions explicitly set out in Article 1, first paragraph, second sentence, of Protocol No. 1), it did not strike a fair balance between the demands of the public interest and the applicant ’ s individual right.

The majority arrives at that conclusion after explicitly disagreeing with the Supreme Court that the first applicant had bought the plot of land in bad faith (see paragraphs 66-69). The majority may be right, but I would have preferred that our Court did not enter into an assessment of the applicant ’ s conduct in 1995 and did not substitute its own assessment for that of the Supreme Court. Indeed, I am not sure that we are in possession of all the relevant elements that would allow this Court to come to a conclusion on this issue, in one sense or another.

Moreover, the majority considers that, when the Supreme Court handed down its decision in 2002, the first applicant had a “legitimate expectation” of being able to continue to enjoy the sum of money he had received in 1997 when he sold the land to the second applicant (see paragraph 71). I see no need to make a factual assessment of this nature. And again, I wonder whether we have available all the necessary elements to pronounce on what expectations were “legitimate” in 2002.

I am afraid that by including these findings in its reasoning, the majority is acting more like a domestic court than a supervisory European court. In my opinion, it would have been sufficient simply to note that, because of the unlawful acts committed by the local and regional authorities (in 1994 and 1995), the first applicant had to return a sum of LTL 6,000 to the second applicant, while being reimbursed by the State only up to LTL 422. The compensation thus received for the consequences of mistakes committed by the public authorities was not in a reasonable relationship of proportionality with the loss suffered by the first applicant. Even if the applicant could legitimately be required to make a sacrifice “in the public interest”, the individual burden actually placed on him was, as the Court finds, excessive (see paragraph 75). The interference was therefore not proportionate to the aim pursued.