PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

Unfortunately, and to my great regret, I am not able to subscribe to some of the conclusions reached by the majority in the present case.

I do not have any difficulty whatsoever as far as the finding of a violation of Article 6 § 1 of the Convention is concerned. At the same time, I cannot follow the majority as regards their decision that there was no need in this particular case to examine the complaint under Article 1 of Protocol No. 1.

Giving their reasoning for this decision, t he majority stated in paragraph 74 of the judgment that “ ... the domestic proceedings to determine the applicant ' s claims are currently pending before the Supreme Administrative Court . Therefore, in so far as the applicant relies on Article 1 of Protocol No. 1 to the Convention, the Court considers that it would be premature to take a position on the substance of this complaint. In so far as the applicant complains about the length of those proceedings, the Court considers that Article 1 of Protocol No.1 complaint does not give rise to any separate issue ... ”.

From this quotation it clearly appears that the Chamber has drawn its conclusion that there is no need for a separate examination of the case under the angle also of Article 1 of Protocol No. 1 to the Convention from the following two premises:

1) ”... domestic proceedings to determine the applicant ' s claims are currently pending ... [and therefore] it would be premature to take a position on the substance of this complaint ... ” and

2) “ ... In so far as the applicant complains about the length of those proceedings, the Court considers that Article 1 of Protocol No.1 complaint does not give rise to any separate issue ... ”.

I cannot agree that these arguments provide a sufficient basis on which to draw a conclusion that there was no need for the Court to examine the applicant ' s complaint under Article 1 of Protocol No. 1 to the Convention.

On 16 December 2003 the Court examined the admissibility of both complaints – that is, those made under Article 6 § 1 and Article 1 of the Protocol No. 1- and unanimously declared both of them admissible. At that stage the Court also examined the problem of the alleged non-exhaustion of domestic remedies and held that all the remedies available to the applicant had been exhausted (see decision on admissibility              of 16 December 2003 , application no.51837/99). I fail to understand how it can be possible on the one hand to state that the complaint under Article 1 of the Protocol 1 was admissible and all the domestic remedies had been exhausted and, on the other hand, to conclude subsequently that th e application in this part was “premature” and should be left without any examination.

In practical terms, if an application is “premature” it means that not all the remedies available under domestic law have been exhausted. In this type of situation an application should either be declared inadmissible for failure to exhaust these remedies, or its examination should be postponed pending the results of the domestic proceedings. In no event in this kind of situation should an application be left without any examination after having been declared admissible.

But even this is not decisive. What, in my opinion, really counts here is the following: in this particular case the excessive length of domestic proceedings should not and may not deprive the applicant of effective international protection of her property rights. The Court shall not, by leaving applications partly unexamined, create for national authorities possibilities to use excessive length of proceedings as a tool for unreasonable delays in deciding on the applicant ' s property rights or, in general, to prevent this Court from examining complaints made under Article 1 of Protocol No.1 in situations where Contracting States fail to comply with their Convention undertakings under Article 6 §1.

In the decision on admissibility given in the present case on 16 December 2003 the Court decided: “ ... in the light of the parties ' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits...”. In my view, when the determination of complaints really required “an examination of the merits”, the next logical step should have been the “examination of the merits” of both complaints under Article 6 § 1 and Article 1 of Protocol No.1, and not leaving one of them without any examination.

In so far as the second argument is concerned, I find it a little bit artificial. In my opinion, a part of an application may remain unexamined only in a situation where the violations found cover also other complaints. A mere finding of a violation of Article 6 § 1 should not by itself exclude a possibility of finding a violation of othe r provisions of the Convention on the basis of the same facts which have given ri se to the violation of Article 6 § 1.

According to the Court ' s case-law, the excessive length of proceedings can affect other rights guaranteed by the Convention and the Court can examine separately complaints concerning allegations of a violation of various provisions of the Convention due to the excessive length of the proceedings.

In its decision on the admissibility of the present case, the Court found that the failure to try an action within a reasonable time can on occasions have repercussions as regards respect for some other right guaranteed by the Convention (see Buchholz v. Germany , judgment of 6 May 1981, Series A no. 4 2, p. 22, § 65). One and the same fact may fall foul of more than one provision of the Convention and its Protocols. In particular, the fact that the Court has found a violation of the “reasonable time” requirement, set forth in Article 6 § 1 of the Convention, does not prevent it from examining the length of the proceedings complained of in the light of the guarantees of Article 1 of Protocol No. 1 (see Erkner and Hofauer v. Austria , judgment of 23 April 1987, Series A no. 117, p. 66, § 76).

I am fully in agreement with this statement.

In my view, an examination of the complaint made by the applicant under Article 1 of Protocol No. 1 in the present case was not only justified and necessary but even indispensable, as otherwise some very important rights protected by this provision would remain unprotected. The reasons that have led me to this conclusion are the following.

From the description of the factual circumstances of the present case, it is clear that some significant property rights of the applicant were at stake. I am not convinced at all that in this particular situation the infringements of the property rights which the applicant arguably suffered may be remedied and compensated by a finding of a violation of Article 6 § 1 of the Convention.

The provisions of Article 1 of Protocol No. 1 comprise three distinct rules. The first rule, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interests. These rules are not “distinct” in the sense of being unconnected: the second and the third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see ZwierzyÅ„ski v. Poland , no. 3 4 0 4 9/96, § 57, ECHR 2001 ‑ VI ).

Possessions” within the meaning of Article 1 of Protocol No. 1 may be either “existing possessions” or claims in respect of which the applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right.

The concept of “possessions” in Article 1 of Protocol No. 1 has an autonomous meaning. The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant a substantive interest protected by Article 1 of Protocol No. 1, having regard to the relevant points of law and of fact (see Former King of Greece and Others v. Greece , no. 25701/9 4 , ECHR 2000-XII, § 60; and Zwierzynski v. Poland judgment , cited above , § 63 ) .

As established in the judgment, the applicant ' s father owned the so-called “Krakow Bishops ' Palace” situated in the centre of Warsaw and the plot of land on which it stood.

By virtue of the 19 4 5 Decree on the Ownership and Use of Land in Warsaw the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw . The decree gave the former owners the possibility of obtaining a perpetual lease (after 19 4 6 - temporary ownership) of a plot of land on request. This decree did not affect citizens ' rights of ownership of immovable property situated on the nationalised plots of land.

In the present case I find it necessary to distinguish between two rights - a right to the land and a right to the building situated on it.

In an analysis of the legal situation of the so-called “ Krakow Bishop Palace ” regard must be had to the fact that the applicant received a certificate from a public notary the authenticity of which has not been contested by the Government. This certificate states that it follows from the land and mortgage register that the applicant ' s father was – and remains – listed in the register as the owner of property no. 4 96. Another entry in the register concerned the legal effects of the 19 4 5 Decree, under which the State Treasury had became the owner of the land. The certificate contains a clause stating that it does not affect the ownership of the buildings located on the plot.

In accordance with Article 5 of the Decree of 26 October 19 4 5 On the Ownership and Use of land in Warsaw “ ... buildings and other objects located on the land being transferred to the municipality ' s ownership remain the property of those who have owned them so far, unless specific provisions provide otherwise ... ”.

The applicant ' s rights to the building are quite clear, because she is the sole heir to her father ' s property, the inheritance proceedings having come to an end in October 1990. It should also be emphasised that under the applicable provisions of Polish law her legal predecessor never lost his ownership of the building situated on the nationalised land.

The Government submitted that under the provisions of the 19 4 5 Decree the applicant ' s father was expropriated in respect of the plot of land concerned. 75 to 80 per cent of the building situated on the plot was destroyed and its reconstruction was financed exclusively from state funds.

The applicant submitted that the fact that the building at issue had been reconstructed at the expense of the State authorities did not affect her rights. The applicant referred to the provisions of the Civil Code concerning the reimbursement by the owner of outlays incurred by a person in possession of a property. Those provisions could, in the applicant ' s argument, serve as a basis for any future settlement of accounts between the State and herself.

Personally, I share the applicant ' s point of view. The 19 4 5 Decree itself does not contain any provision which would reduce or nullify the entitlement of former owners in accordance with the degree to which their properties were destroyed during the war, or with the State ' s financial involvement in their reconstruction.

The Land and mortgage register still today lists the applicant ' s late father as the owner of the property concerned, that is, of the buildings. A request made in the 1980s by the State authorities to have this entry amended and to make an entry to the effect that the ownership title to the building had been transferred to the State Treasury has never been granted.

As far as the rights to the land are concerned , the situation is as follows: On 4 September 1997 Polish Seym (Parliament) adopted the Law on the Transformation of Perpetual Usufruct Rights of Individuals to Ownership Rights. This law guarantees to individuals who acquired perpetual use of property before 31 October 1998 the right to have that right transformed into ownership. This law entered into force as from 1 January 1998 .

On 12 November 1997 the Head of the Warsaw District Office re-examined the request lodged by the applicant ' s father in 19 4 8. He granted the applicant perpetual use of the land and declared that she retained the ownership of the building located there. It was further observed that the buildings on the plot had been partly destroyed during the war. Any issues linked to the settlement of outlays for the construction of new buildings between the State which financed this construction and the owner of the plots belonged to the jurisdiction of the civil courts and could not be determined in the administrative proceedings.

It is worth mentioning that civil legislation of Poland provides for full ownership ( własność ) which could be compared to freehold in the British legal system. It also provides for the right of perpetual usufruct ( użytkowanie wieczyste ) which may be compared to a long lease under the British system, but also guarantees more extended rights to the property concerned. An individual or a legal entity may be granted such a right over land owned by the State, or by a local authority, situated in urban areas or included in urban special development plans. The right comprises a right to use the land to the exclusion of others for ninety-nine years against payment of a yearly fee. The person entitled to the right can dispose of it. Perpetual usufruct is freely transferable and mortgageable .

The Book 2 of the Polish Civil Code is entitled “Ownership and other property rights” (“ Własność i inne prawa rzeczowe ” ). This book is, in turn, composed of four titles: Title I. “Ownership” (“ Własność ”), Title II. “Perpetual use” (“ Użytkowanie wieczyste ”), Title III. “ Limited Rights in rem ” ( “ Prawa rzeczowe ograniczone ”), Title IV. “Possession” (“ Posiadanie ”), which set out the legal conditions for enjoyment of these rights.

From an analysis of the structure of the Civil Code it is obvious that the Polish legislator regards “perpetual use” as a form of “other property rights”.

Having been granted on 12 November 1997 the perpetual use of the plots concerned the applicant was accordingly granted “other property rights” in terms of the Polish Civil Code. These property rights must be treated as her possessions in terms of Article 1 of Protocol No. 1.

On 25 February 1998 the Warsaw Regional Prosecutor raised an objection to the decision of 12 November 1997 submitting that the clause concerning the ownership of the building was only of a declaratory nature, that is, it confirmed something that had already been stipulated in the 19 4 5 Decree. The contested decision should, in the prosecutor ' s argument, be set aside because the boundaries between the plots did not correspond to the boundaries between the buildings.

The right of a public prosecutor to lodge such an objection against any final administrative decision if he or she considers that it has been flawed with procedural or substantive shortcomings such as to justify its annulment is stipulated in Article 18 4 of the Code of Administrative Procedure. There is no time-limit for the lodging of such an objection.

Following that objection the Warsaw Governor instituted ex officio proceedings for the annulment of the decision. On 6 April 1998 the Governor stayed the enforcement proceedings in respect of the decision of 12 November 1997 , having regard to the objection lodged by the prosecuting authorities. On 23 July 2001 the Governor quashed the decision of 12 November 1997 and remitted the case for re-examination.

After more then three years of examination by different administrative and judicial authorities the proceedings are currently pending before the Supreme Administrative Court .

As far as the land is concerned, it is obvious to me that starting from 12 November 1997 when the applicant was granted perpetual use of land right and until 23 July 2001 when the Governor, as a result of the Regional Prosecutor ' s intervention, quashed the decision granting the applicant the right of perpetual use, i.e. for a period of three and a half years, the applicant had been enjoying rights that according to the Polish legislation should be treated as property rights. Moreover, during this period she had been entitled even to have her right of perpetual use transformed, under the applicable provisions of Polish law referred to above, into full ownership.

As far as the building is concerned, the applicant ' s father, as has already been shown, never lost his ownership of the building and remains registered as its legal owner. The mere fact of being the sole heir to her father ' s property certainly conferred on the applicant a substantive interest protected by Article 1 of Protocol No. 1.

When deciding on whether the applicant has “possessions” within the meaning of Article 1 of Protocol No. 1, the legal significance of the land register under Polish law as ultimate proof of ownership must be taken into consideration. Article 3 of the Land Register Act establishes a legal presumption that the title registered in the land register corresponds to the actual legal status of the property.

To sum up, having regard to all the relevant points of law and fact, I have no doubt whatsoever that the applicant did have and still has “possessions” as far as her property rights are concerned at least in the form of “claims in respect of which the applicant can argue that he has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see Pine Valley Developments and Others v. Ireland , judgment of 29 November 1991, Series A no. 222, p. 23, § 51 and Pressos Compania Naviera S.A. and Others v. Belgium , judgment of 20 November 1995, Series A no. 332, p. 21, § 31).

Whether there has been an interference with her property rights and whether this interference was justified should have been examined by the Court. Unfortunately, and much to my regret, this has not been the case.

This is where I disagree with the majority.