CONCURRING OPINION OF JUDGE LORENZEN

JOINED BY JUDGE BAKA

I agree with the majority that there has been a violation of Article 1 of Protocol No. 1, but I regret that I am not able fully to share its reasoning.

What happened in this case was that the municipality decided to expropriate the applicant's property, enforced its decision very quickly and built a road on the land. The applicant company appealed to the Regional Administrative Court of Tuscany (“the RAC”) which on 2 December 1987 found in its favour stating, inter alia , that the road project was illegal and that there was no public interest in building the road (hence in taking the applicant's land). That decision became final, but was delivered after the road had already been built. In the later enforcement proceedings the RAC even stated in its judgment of 26 June 1991 that the road project was “dangerous and contrary to the public interest”. That finding has not been contested either by the Consiglio di Stato or, before this Court, by the Italian Government. It could therefore be said that the Italian courts have in effect recognised that the applicant company was deprived of the land in breach of Article 1 of Protocol No. 1.

According to the settled case-law of the Court it is not in principle sufficient for an applicant to be deprived of his status as a “victim” for the national authorities to acknowledge, either expressly or in substance, that there has been a breach of the Convention: the applicant must also be afforded redress for the breach (see, mutatis mutandis, the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999-VII).

I therefore agree with the majority (see paragraph 61 of the judgment) that it is important in a case like the present one to examine how the national authorities responded to the fact that the taking of the property was illegal as not being in the public interest. If, for instance, the authorities had given back the property to the applicant company and paid compensation for the damage which it had suffered from the unlawful taking of the property, it could clearly no longer claim to be a victim. However, the majority seems to be of the opinion that restitutio in integrum is an absolute condition for stating that an applicant is no longer a victim of the violation. I cannot agree with such a conclusion. It may be impossible to restore the original state of affairs simply because the property no longer exists, for instance where a building has been demolished. But even if restitutio in integrum in principle is possible it cannot always be a condition for curing a violation of  Article 1 of Protocol No. 1. If restitution were to give rise to excessive costs which were clearly disproportionate to the value of the property illegally taken, I would find no violation of the

said Article, if the applicant had been compensated in full for the damage he had suffered.

In the present case the Italian Consiglio di Stato stated in its decision of 7 February 1996 that restitution was impossible as a consequence of the occupazione acquisitiva . The judgment contains no assessment of the costs or any other possible substantial obstacles to restitution. On the contrary, one gets the impression when reading the judgment that the mere fact that the construction works had been completed created an irreversible transfer of ownership by way of occupazione acquisitiva . To legalise clearly illegal acts in such an automatic way, provided they are carried out with sufficient speed and irrespective of the fact that lawsuits concerning their legality are already pending, would in my opinion cause serious damage to respect for law and order and is therefore not compatible with the concept of the rule of law, which is embodied in the Preamble to the Convention and is fundamental to the application of its provisions. In any event, on the basis of the available information I cannot find it established that it was impossible to return the property to the applicant company or that such a return would involve excessive costs. For that reason, I agree with the majority that there has been a violation of Article 1 of Protocol No. 1.

The fact that the applicant company has not even been offered any compensation for the illegal deprivation of its property, but has itself to initiate court proceedings – and within a time-limit which in principle runs from the termination of the construction works – gives me serious concern. In view of the above finding, however, I need not in the present case consider whether this in itself is incompatible with the said Article.

Finally, I agree with the majority that it may give rise to serious doubt whether the case-law on “constructive expropriation” ( occupazione acquisitiva ) of the Italian courts as it has developed gives a sufficient legal basis for a deprivation of property, but that it is not necessary to rule on that question in the present case.

[1] . Note by the Registry . The Court’s decision is obtainable from the Registry.

[1] 1. Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A no. 61, p. 34, § 90; Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, p. 32, § 67; Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III, p. 1017, § 49; and Rotaru v. Romania [GC], no. 28341/95, opinion of the Commission, § 64, ECHR 2000-V.