JOINT DISSENTING OPINION OF JUDGES PASTOR RIDRUEJO, BONELLO, TULKENS, STRÁŽNICKÁ, LORENZEN, FISCHBACH AND CASADEVALL

1. We regret that we are unable to share the opinion of the majority that there has been no violation of Article 8 in this case. We refer to our joint dissenting opinion in the case of Chapman v. the United Kingdom (no. 27238, judgment of 18 January 2001), the leading case of the five applications brought before our Court concerning the problems experienced by gypsies in the United Kingdom.

2. Identical considerations arise in this application. The applicant gypsies in this case had followed an itinerant lifestyle for many years in the Lancashire area, often stopping on temporary or unofficial sites. In 1986, the applicants bought land on which to station their caravans with security. Planning permission was however refused for this and they were required to leave. They were prosecuted in 1993, receiving a conditional discharge and convicted and fined in October 1994. They were prosecuted and fined a third time in 1995. Under the pressure of injunction proceedings brought against the first applicant, he undertook to remove his caravans. When he failed to do so due to an inability to find a vacancy on another site, he was subject to an order committal to prison for three months, which was suspended pending compliance with his undertaking. The applicants then left their land and are currently without fixed address.

During the planning procedures no alternative sites were identified as being available for the applicants to go to either in the district or in the county as a whole. The Inspectors accepted that they had strong personal reasons for not going to the Mellishaw site and the Government have not disputed the applicants' submissions that they would be at risk of violence from the residents at the site with whom they had experienced serious problems. While the Inspector in the 1992 inquiry repeated the Council's assertion that there were 17 vacancies available on private sites, it was not specified where these vacancies occurred. The Government referred to the fact that many other caravan sites existed in the county. However it is evident that most of these were private sites which did not cater for gypsies. The applicants also had made not inconsiderable inquiries about vacancies which were not successful and which contradicts the assertions that vacancies were readily available (see paragraph 30). Recent statistics for

sites in the area indeed showed that the number of authorised public sites had diminished while the number of unauthorised encampments had increased (see paragraph 32). The Government further stated that the applicants were free to seek sites outside the county. However, notwithstanding the statistics relied on by the Government (see paragraph 64), we note that there was still a significant shortfall of official, lawful sites available for gypsies in the country as a whole and consider that it could not be taken for granted that vacancies existed or were available elsewhere.

3. Consequently, the measures taken to evict the applicants from their home on their own land, in circumstances where there has not been shown to be any other lawful, alternative site reasonably open to them, were, in our view, disproportionate and disclosed a violation of Article 8 of the Convention.

4. We voted for non-violation of Article 14 as, in light of our firm conviction that Article 8 had been violated in the circumstances of this case, no separate issues remained to be examined.

SEPARATE OPINION OF JUDGE BONELLO

I refer to the terms of my separate opinion in the Chapman v. the United Kingdom judgment of this date.

[1] Notes by the Registry

. Protocol No. 11 came into force on 1 November 1998.

[2] . The full text of the Commission’s opinion and of the separate opinions contained in the report will be reproduced as an annex to the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but in the meantime a copy of the Commission’s report is obtainable from the Registry.