CONCURRING OPINION OF JUDGE DE GAETANO

1. Although I agree that in this case there has been a violation of Article 1 of Protocol No. 1, I cannot fully subscribe to some of the reasoning and arguments leading up to this conclusion.

2. The violation in this case depends to an appreciable extent on the peculiar nature of three provisions of Pol ish law – Articles 17 paragraph 1(3), 39 and 100 of the Criminal Code (§§ 29 and 30, above) – which, when applied in combination to the facts of the case, create a manifest imbalance between the public interest and the rights of the applicant. To be sure, in principle there appears to be nothing objectionable if a provision of law provides for the confiscation, or indeed, for the removal or the destruction, of an object the existence or possession of which is in breach of some provision of law even if the person concerned is acquitted of the criminal charge of illegal possession of that object . This was the general approach taken by the Court in Saliba v. Malta ( no. 4251/02, 8 November 2005). This point is only very vaguely reflected in the last sentence of § 62 of the present judgment. In the instant case, however, we have neither an acquittal nor a conviction, but a discontinuation of the proceedings coupled with a judicial acknowledgment that the offence was of a “negligible” nature in terms of seriousness – de minimis non curat praetor . In the present case this suffices for a finding of disproportion ality , and this is where the Court ’ s reasoning should, in my view, have stopped. In many jurisdictions trifling offences are dealt with, upon conviction, by a simple reprimand or admonition; on the contrary in this case the applicant had the benefit of not being found guilty annihilated for all practical purposes by the confiscation of a priceless collection. The domestic court ’ s views on the character of the applicant and on “the lack of criminal intent on his part” (§§ 46 and 17) are irrelevant (apart from the fact that it is not clear whether by criminal intent that court was referring to a specific intent or to motive; as the respondent Government rightly observed, the applicant, as a retired army commissioned officer and an expert on weapons, could not but have known that at least some of the weapons required licensing). The reasons contained in §§ 52 to 57 are irrelevant to a finding of a breach of the Convention on the facts of the instant case.

3. On the positive side, however, the decision in the instant case clearly departs from the case-law of the Court which, as a rule, has considered – wrongly in my view – confiscation pursuant to proceedings of a criminal nature as a measure of control of use of property rather than of deprivation (§ 46, and the cases there referred to; see, more recently, Milosavljev v. Serbia , no. 15112/07 , 12 June 2012, § 53). I have always been perplexed

by the elliptical reasoning in the last two sentences of § 51 of AGOSI v. the United Kingdom ( no. 91 18/80 , 24 October 1986) and by the lack of proper distinction between the attachment stage and the disposal stage (as provided for in the relevant domestic law) in Riela et autres c. l ’ Italie ( dec .) no. 52439/99 , 4 September 2001 .