Sunday, November 25, 2012


En esta relevante sentencia del TEDH (demanda nº 71243/01), la Gran Sala estimó (25 de octubre de 2012) la demanda de los recurrentes, a pesar de la desestimación previa de la misma por la la Sala de la Sección .Lo que es más importante, la sentencia se separa de la doctrina contenida en el caso previo de "Jahn and others v. Germany" en la que el Tribunal consideró que, dada la situación de transición del régimen legal en la antigua RDA, no había exisitido una infracción del artículo 1 del Protocolo 1 del CEDH en relación con una "expropiación legislativa".

Este es el resumen de esta importante STEDH:

"Article 1 of Protocol No. 1

The Court acknowledged that the disputed expropriation had been carried out on the basis of the Law of 30 October 1997 on expropriation, for the needs of the State, of land within the Free Commercial Port of Riga. The Court noted that in Latvian law the formal decision on expropriation was taken not by the executive but by Parliament in the form of a special law. The Court observed that this was a feature of the Latvian legal system, dating back to 1923, and enshrined in the Constitution in 1998. It found that the general principles and objectives of the expropriation system set up by Latvian law did not, as such, raise any issue of lawfulness within the meaning of Article 1 of Protocol No. 1.

However, the Court noted that on 5 August 1997 the Cabinet had adopted a regulation ordering the expropriation of all the properties at issue in the present case, and that, together with the Law of 30 October 1997 by which it was confirmed, the regulation had been interpreted by the domestic courts as providing for a derogation from the General Expropriation Act of 1923. It had thus been possible to disregard the usual expropriation procedure in the applicants’ case and to limit the amount of the compensation by reference to Article 2 of the Supreme Council’s decision of 1992. Prior to the adoption of the regulation and the enactment of the special Law, the applicants could have expected that any expropriation of their property would be carried out in accordance with the 1923 General Expropriation Act. The Court had doubts as to whether the expropriation at issue had been carried out “subject to the conditions provided for by law”, having regard in particular to the derogation applied to the applicants and to the procedural safeguards that were – or were not – attached to it.

The Court reiterated that an interference with the right to the peaceful enjoyment of possessions always had to strike a “fair balance” between the demands of the general interest and the protection of the individual’s fundamental rights.

The Court observed that the value of the properties at issue had been assessed on three separate occasions. It took the view that the Latvian authorities had been justified in deciding not to compensate the applicants for the full market value of the expropriated property and that much lower amounts could suffice to fulfil the requirements of Article 1 of Protocol No. 1. Nevertheless, the Court noted an extreme disproportion between the official cadastral value of the land and the compensation received by the applicants: the sum received by Mr Vistiņš was less than one thousandth of the cadastral value of his land, and Mr Perepjolkins had received a sum some 350 times lower than the total cadastral value of all his properties. In the Court’s view, such disproportionate awards were virtually tantamount to a complete lack of compensation.

The Court further noted that shortly after being deprived of their properties, the applicants had received significant amounts from the Free Commercial Port of Riga for the rent arrears due to them. Those amounts – calculated this time on the basis of the current value, and not that of 1940 – were respectively 95 times higher than the compensation granted to Mr Vistiņš and 40 times higher than that granted to Mr Perepjolkins. In any event, the disproportion between the rent arrears and the compensation awarded confirmed that the compensation had been unreasonably low.The Government had failed to show that the legitimate aim relied on, namely that of optimising the management of the port infrastructure in the general context of the State’s economic policy, could not be fulfilled by less drastic measures than expropriation compensated for by purely symbolic sums. In that connection the Court dismissed the Government’s argument that the expropriation had been carried out in a particular historical context. It took the view that, as the events at issue had taken place well after the end of the period of historic upheaval, the legislature could nevertheless have been expected to uphold the principle of legal certainty and to refrain from imposing excessive burdens on individuals.

The authorities could have calculated the compensation on the basis of the cadastral value of the land at the date on which the applicants had actually lost their title, instead of using the cadastral value from 1940. Even though Article 1 of Protocol No. 1 did not,in the present case, require the reimbursement of the full cadastral or market value of the expropriated properties, the Court considered that the disproportion between their current cadastral value and the compensation awarded was too significant for it to find that a “fair balance” had been struck between the interests of the community and the applicants’ fundamental rights.

The Court concluded that the State had overstepped the margin of appreciation afforded to it and that the expropriation complained of by the applicants had imposed on them a disproportionate and excessive burden, upsetting the “fair balance” to be struck between the protection of property and the requirements of the general interest. Accordingly, there had been a violation of Article 1 of Protocol No. 1.

Article 14 taken together with Article 1 of Protocol No. 1

The Court was of the view that the inequality of treatment of which Mr Vistiņš and
Mr Perepjolkins claimed to be victims had been sufficiently taken into account in its
assessment leading to the finding of a violation of Article 1 of Protocol No. 1. It thus
found that there was no need for a separate examination of the same facts under
Article 14 of the Convention.

Just satisfaction (Article 41)

The court held that the question of the application of Article 41 of the Convention was
not ready for decision and reserved it in its entirety for future consideration.

Separate opinion

Judges Bratza, Garlicki, Lorenzen, Tsotsoria and Pardalos expressed a joint partly
dissenting opinion, which is annexed to the judgment.

En el asunto "Jahn and others v. Germany" (demandas nº 46720/99,72203/01 and 72552/01), el juez alemán George Ress ya disintió de la opinión mayoritaria con la opinión siguiente:

"1.  I share the dissenting opinion of Judges Costa and Borrego Borrego joined by Judge Botoucharova, except regarding a violation of Article 14. I still find the reasoning of the Chamber, which adopted a judgment on 22 January 2004 in the present case holding unanimously that there had been a violation of Article 1 of Protocol No. 1 on the ground that the State had compelled the applicants to assign their property to the State without any compensation, more convincing than the Grand Chamber's judgment.

2.  The applicants had not acquired property rights illegally, but entirely legally under the Law of 6 March 1990. It would be possible to speak of an illegal acquisition or – as the Grand Chamber has done – a “windfall” if the former laws and regulations of the GDR were taken as a decisive criterion. Such was not the intention of the legislature or the purpose of the Law of 6 March 1990, however. The legislature had to create true ownership in the sense of a free market economy to prepare the GDR for the signing of economic, currency and social union with the FRG, which was finally done on 18 May 1990. It is far-fetched to consider that there is a loophole in that Law concerning the question of ownership of heirs to that land and to see in that a whole series of uncertainties regarding their legal position. Although the Law of 6 March 1990 is very short, or even succinct, all the issues were discussed by the parliamentary commission and were therefore known to the legislature. There is no evidence of a loophole in the structure of that Law. Otherwise, it would be possible to find all sorts of loopholes in short laws if the results of the law appear unsatisfactory. Naturally the legislature can correct those results in such a case, but in doing so it must respect the individual rights it has created. Furthermore, from the Law of 6 March 1990 until the 1992 Act, the applicants were able to exercise their property rights in good faith for two years. Considering that the period during which the Italian authorities left Mr Beyeler in the dark as to whether he had become the lawful owner (see Beyeler v. Italy [GC], no. 33202/96, § 119, ECHR 2000-I) was just over four years, I think that in the present case the applicants, whose property rights were not called into question, were also entitled to compensation for the legitimate expectation created by the State.

3.  My biggest reservation concerns the reference to the “unique” context of the unification of Germany and the “exceptional circumstances” of this case. As my colleagues Judges Costa and Borrego Borrego have rightly pointed out, this expression should not be misused. The unification of Germany is no more “unique” than the dissolution of the USSR or of Yugoslavia or the change of political regime that occurred in many countries after the fall of the Berlin Wall.
If a State like the FRG is bound by the Convention, such events cannot in general justify a vague interpretation or less strict application of the Convention. Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004-VII), the context of which could also have been described as “unique” following the dissolution of the USSR, is a good example of this firm approach on the part of the Court. With the notion of “exceptional circumstances”, the Court could have arrived at different results in that case as well. It seems to me that the Court has been less firm in its decision in Von Maltzan and Others v. Germany ((dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, §§ 77 and 111-12, ECHR 2005-V), in which it did not acknowledge the applicants' legitimate expectation of compensation (as a property right), even though the Federal Constitutional Court had in principle recognised that right of property, and in the present case.
4.  The introduction of the concept of “exceptional circumstances” as a ratio decidendi justifying an exception under Article 1 of Protocol No. 1 is a very dangerous step in the development of the interpretation of the Convention. The Court has used it very rarely, for example in The former King of Greece and Others v. Greece ([GC], no. 25701/94, § 89, ECHR 2000-XII), where it did nonetheless award just satisfaction. If the Court accepts that exceptional circumstances may justify interferences by the State with the individual's rights, this is a State-orientated concept that is a far cry from the concept of human rights protection. In James and Others, which has been mentioned as a case in which a parallel can be drawn (James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98), the rights of private individuals were weighed against each other. In that case it could be said that there was not a fair balance between the persons concerned because the tenants had already invested so heavily in the buildings that the right of the formal owner could justifiably be overridden. In that case as well, however, the Court did not rule out just satisfaction even if it was less than the market value. That particular case concerned a situation in which the State could be considered as the just arbitrator between competing private interests. In the present case, the State itself engineered the interference on the ground that the Modrow Law had created inequalities in society. The situation is far from being comparable to James and Others and I do not understand how the Court could have overlooked that profound difference.
The concept of “exceptional circumstances” is one that does not lend itself to generalisations. Moreover, if an attempt is made to generalise the notion of “exceptional circumstances” as a ratio decidendi, the Court will lose its status as an organ of justice. It will no longer be possible to determine when and in what circumstances the Court will accept that there were “exceptional circumstances”. Is the fight against terrorism an exceptional situation? Does such an exceptional situation justify interferences with human rights with the result that there is no longer a violation? From what I can see of past rulings, the Court has never justified such an interference with human rights to the State's benefit on account of “exceptional circumstances”. On the contrary, the Court has justified, in for example D. v. the United Kingdom (judgment of 2 May 1997, Reports of Judgments and Decisions 1997-III), an extension of the protection of individuals in “exceptional circumstances”, which is more in keeping with the protection of human rights, even if the justification can hardly be generalised.
5.  That a law creates inequalities is not an exceptional situation. There are many such laws and the legislature can be required to correct the inequality. However, the correction must be done while respecting human rights. Such a correction is not an “exceptional situation”. It is in itself an entirely normal situation in which the legislature – under political pressure or because of constitutional objections – corrects an error by the legislature that has led to unacceptable consequences for society. But all that is done at a political level and such considerations should not be brought into play through the notion of an “exceptional situation” when interpreting the Convention.
6.  What is exceptional in a transitional period? There may be greater possibilities of mistakes by the legislature, which future legislatures would be inclined to correct, but does this give carte blanche to commit violations of human rights or to regard violations as non-violations? The Court has also referred to the nature of the right or rather to its unclear nature and character and introduced a classification of weak and normal or strong rights. That distinction makes things even less clear. One of the big mistakes of the Court was to turn to the law of the GDR, which of course was not bound by the Convention. The starting-point for the Court should have been the Unification Treaty, when the Convention also came into force on the territory of the former GDR. The Unification Treaty included the Modrow Law as part of the federal legislation and, as the Government have confirmed, established the full property rights of the applicants. It was not only futile to refer to the legal situation in the GDR but also unjustified to go back further than the entry into force of the Convention on the territory of the GDR.
7.  The Court also regarded as an exceptional circumstance the fact that the Modrow Law was passed by a regime that did not have democratic legitimacy and no one could therefore have confidence in the legal stability of such a law. The decisive moment, however, was the Unification Treaty and the incorporation of the Modrow Law into FRG law by the fully democratically elected German parliament, which makes that argument futile. The fact that the German legislature reacted promptly, within less than two years, to correct the so-called unacceptable consequences of the Modrow Law does not justify referring to “exceptional circumstances”. On the contrary, a parliament which promptly corrects errors that have become evident is not in an “exceptional situation” and this does not justify concluding that interferences may not be violations of human rights. To sum up, the whole argumentation is rather circular. The situation has nothing in common with Rekvényi v. Hungary ([GC], no. 25390/94, ECHR 1999-III) where the restriction of the right to vote was justified by the argument that otherwise the whole election process could be jeopardised. In the present case, the Government did not advance the idea that they had to protect individual property rights but, on the contrary, the State thought of a solution from which it could derive the greatest advantage from the taking of property.
8.  The Chamber did not rule on the question of the amount of just satisfaction, but confirmed the principle that a disproportionate interference with the right of property would in principle entitle the victim to redress. All the considerations relating to the nature of the applicants' rights and their legitimate expectations might play a role in the application of Article 41, as the Chamber pointed out, but not in the interpretation and application of Article 1 of Protocol No. 1.
If the Court is now going to say that a kind of expropriation is proportionate because the State has an interest in correcting errors, that is not very far from the defence plea rejected in Streletz, Kessler and Krenz v. Germany ([GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001-II), in which the applicants relied on the raison d'état (the State concerned was the GDR) to justify the interferences. If the Court is going to accept that there may be reasons for the State to disregard human rights (whether it calls them exceptional or whatever), who then will protect the individual against interferences with these rights?"

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Sunday, November 4, 2012


La aplicación del procedmiento piloto permite al TEDH ejercer un mayor control sobre aquellos problemas estructurales que representan incumplimientos reiterados por los Estados del Convenio Europeo de Derechos HUmanos.

Así se aprecia en la reciente STEDH de 30 de Octubre de 2012 en el caso Glykantzi v. Greece:

"In today’s Chamber judgment in the case of Glykantzi v. Greece (application no. 40150/09), which is not final1, the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) in conjunction with Article 13 (right to an effective remedy) of the European Convention on Human Rights.

The case concerned the length of pay-related proceedings in the civil courts that lasted more than twelve years.

The Court found that the excessive length of proceedings in the civil courts, and the lack of a remedy by which to complain about this issue, had arisen from failings in the Greek legal system. It requested Greece to put in place, within one year, an effective remedy that could provide appropriate and sufficient redress in such cases of excessively lengthy proceedings. The Court has now adjourned, for that period, its examination of all cases which solely relate to the length of civil proceedings in the Greek courts. Over 250 applications against Greece in which at least part of the complaints are about the length of judicial proceedings are currently pending before the Court, including 70 that specifically concern civil cases.


Whilst the present case could be distinguished from the pilot cases examined previously by the Court, in so far as individuals in Ms Glykantzi’s situation did not belong to a “precise category of citizen” and also as this case was not the first to highlight the structural problem at issue, the Court nevertheless found that it was appropriate to apply the pilot judgment procedure, particularly in view of the persistent nature of the problems in question, the significant number of individuals concerned and the urgent need to provide them with swift and appropriate redress at national level."


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