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 3ª.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:
DISSENTING OPINION OF JUDGE RESS
(Translation)
"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?"
