CONCURRING OPINION OF JUDGE BONELLO

1. I have voted with the majority to find a violation of Article 1 of Protocol No. 1 and, in principle, I fully subscribe to the reasoning which leads to that finding.

2. This separate opinion addresses what I consider the Court's inadequate response to the Government's pleadings and to the judgment of the Italian Constitutional Court (no. 188 of 1995).

3. It is not disputed in the present case (a) that the decision to occupy the applicant's land was illegal and invalid; and (b) that the construction works carried out on the applicant's land in pursuance of that invalid notice of expropriation were equally illegal.

4. The Italian Constitutional Court, however, in the said judgment, approved the so-called “constructive-expropriation rule” created by the Court of Cassation (absent in any statute book) by virtue of which private property, illegally designated for expropriation and illegally built upon, anyway becomes public property once the works constructed on it are completed. The Constitutional Court added that the fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under the Constitution, since the public interest in the preservation of works for the public good outweighed the individual interest in the right of property (see paragraph 33 of the present judgment).

5. Article 1 of Protocol No. 1 makes deprivation of private property subject to the existence of a law and to the observance of the conditions provided for by that law. There is no statutory law in Italy authorising expropriation in the circumstances sanctioned by the Constitutional Court . But, solely for the sake of argument, I will concede that a surge of judicial activism by a Court of Cassation ratified by a Constitutional Court has sufficient efficacy at law to fill the conspicuous gap in the Italian statute book and can stand as “law” in lieu of an inexistent statutory provision. The problem, however, remains whether this “quasi-law” satisfies at all the minimum criteria posited by the Convention.

6. Differently from the Italian Constitutional Court , the unlawful conduct of the authorities does pose a difficulty for me. I only stockpile embarrassment in attempting to convince myself that one illegal act is an illegal act, but the sum of two illegal acts gives birth to rights in favour of the wrongdoer. I hesitate to buy new brands of legal ethics by which, once unlawfully acquired land has been unlawfully built upon, abuse somehow transfigures itself into lawfulness. Construction programmes are, no doubt, endowed with bountiful virtues; turning wrong into right is not, to my knowledge, one of them.

7. In developing the basic rule that all interferences with the enjoyment of fundamental rights and freedoms have to be “in accordance with the law”, the Convention organs (in other cases, referring to other rights) have refined this concept considerably. They have established that the expression “ 'in accordance with the law' ... also relates to the quality of that law, requiring it to be compatible with the rule of law mentioned in the Preamble to the Convention” [1] .

8. I find very insignificant suggestions of compatibility with the rule of law in a judicially procreated norm that makes the acquisition of rights depend on the delinquency of the wrongdoer. Arguments by which rights can be earned ex turpis causa should not, in my view, feature very high in the “quality” scale of the rule of law.

9. The Court has, it seems to me, lost a priceless opportunity to extend the examination of the “quality of law” principle adopted in other cases to the case of deprivation of  property under Article 1 of Protocol No. 1. It is a pity.