CONCURRING OPINION OF JUDGE MULARONI

I agree with the conclusion of the majority that the application is admissible and that there has been a violation of Article 1 of Protocol No. 1.

However, as to the exception of incompatibility ratione temporis raised by the respondent Government, I would like to express a separate opinion, since my position is different from what emerges from the text of the judgment.

The Government submitted that the alleged violation of the applicant ' s property rights had originated in the land development plan adopted in 1993, that is, before 10 October 1994, the date on which Poland ratified Protocol No. 1 to the Convention. Consequently the application should have been declared incompatible ratione temporis with the provisions of the Convention.

I would have agreed with the Government had the interference with the applicant ' s rights ended on 31 December 1999, the date on which, pursuant to the 1994 Act, plans adopted before its entry into force were to expire (see paragraph 33 of the judgment).

This was not the case. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years, until 31 December 2001. Subsequently, on 21 December 2001, Parliament passed a further law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995 (see paragraph 3 4 of the judgment). On 11 July 2003, the date of entry into force of the Local Planning Act 2003, any limitation on the applicant ' s property rights was removed.

I therefore consider that there has been a violation of Article 1 of Protocol No. 1, but only in respect of the period from 1 January 2000 to 11 July 2003. This was accepted by the applicant (see paragraph 25 of the applicant ' s observations) and I do not see any valid reason to extend the applicability ratione temporis of Protocol No. 1 to previous periods. Consequently, I have some difficulties with what I consider to be a kind of ambiguity in the examination of this issue.

In paragraph 43 of the judgment, my distinguished colleagues do not make any distinction between measures adopted before and after 10 October 1994 (i.e. before and after ratification), and consider the violation a continuing one.

In paragraph 46 , they seem to accept that the violation covers only the period after ratification of Protocol No. 1 by Poland .

In paragraph 80 , they refer to the whole period during which the applicant ' s property rights were limited, from 1993 (when the plan was adopted) to 31 December 2003. Here I have an additional difficulty, since any limitation on the applicant ' s property rights came to an end on 11 July 2003. The applicant ' s application for planning permission to build a house

was granted on 25 August 2003. This was accepted by both parties and I cannot understand why the Court should determine the “final” date as 31 December 2003.

I disagree with the majority ' s approach on this point. I consider that a clear line should have been drawn between measures within the scope of the Court ' s supervision and those outside it.

Furthermore, nowhere is a distinction made between what I consider the first period (from the adoption of the plan in 1993 to 31 December 1999, the date of expiry of the plan) and the second one (1 January 2000 to 11 July 2003), which I regard as the only critical period. This probably means that the majority consider that, in any event, a violation has to be found for at least some time before 1 January 2000, a conclusion with which I deeply disagree.