DISSENTING OPINION OF JUDGE CONFORTI

(Translation)

In my opinion, there has been no violation of Article 1 of Protocol No. 1 in the present case.

The main issue raised was the prohibition on building to which the applicant company’s land was subject for twenty-six years, either as a result of the conduct of the Pomezia District Council or – and above all – because of legislation enacted at national level (Law no. 10/1977) and by the Lazio region (Law no. 86/1990) (see paragraphs 13 and 38-40 of the judgment).

The majority of the Court held that, because the applicant company was in a state of total uncertainty as to the future of its property on account of the prohibition on building with a view to expropriation and the failure to adopt any detailed development plans, the fair balance between the requirements of the general interest and the applicant company’s right to the peaceful enjoyment of its possessions had been upset.

I do not agree.

It is common knowledge in Italy that the prohibition on building provided for in the 1977 Law was a reaction to the conduct of private persons – real estate companies and individuals – who had reduced the bulk of the land in Italy (in other words, what had been referred to as the most beautiful garden in Europe!) to a mass of cement. It is also common knowledge in Italy that the possibility of expropriating all the land affected by the prohibition on building was purely hypothetical and not real, and that, consequently, the prohibition was not imposed “with a view to expropriation” but, quite simply, with a view to prohibiting building.

In my humble opinion, the Court should have taken that into account in weighing up the interests at stake, so as to avoid the risk of deciding the case in the abstract or, with all due respect, in a vacuum. It should have considered whether a measure prohibiting building on land which, in most cases, was used as farmland or as private gardens, and was therefore to continue being used as such, was not justified on public-interest grounds. That, in my view, was the right solution to adopt.