DISSENTING OPINION OF JUDGE GOTCHEV

I am unable to agree with the majority in this case concerning either the question whether there was a violation of Article 8 (art. 8) of the Convention or the question of the alleged vio lation of Article 1 of Protocol No. 1 (P1-1).

1.  With regard to Article 8 (art. 8), in my view the possibility for the applicant and his family to occupy living space separate from the rooms or space where his wife's parents live is a substantive element of family life within the meaning of Article 8 (art. 8) of the Convention, unless the applicant himself considers his wife's parents part of his own family, and that is obviously not the case.

So the question how many rooms there are in the parents' house and how many individuals live there is not of decisive importance for the question of family life.

Both domestic courts refused to give the applicant the opportunity to live with his family in normal conditions independently from other persons who were not members of his family.

Moreover, the applicant and his wife were young enough at the time of the alleged violation to have more children.  Unfortunately, the Court did not attach sufficient weight to this aspect of the case. I think that the possibility of increasing the size of one's family should be regarded as one element of family life.

2.  With regard to Article 1 of Protocol No. 1 (P1-1), I am convinced that there was a breach of the applicant's right to the peaceful enjoyment of his possessions.  It is true that, in accordance with the second paragraph of Article 1 of Protocol No. 1 (P1-1), the State could legitimately take measures to control the use of property in accordance with the general interest, and that according to the Court's case-law the tenants' interest should be regarded as a specific part of the general interest.  But it is also the Court's case-law that, where a Contracting State applies the second paragraph (P1-1), the domestic courts should strike a fair balance between the directly protected human right of the landlord (the applicant in this case) and the right of the tenant.

In my view, the Court could not find that a fair balance had been struck in this case.

For me it is quite obvious that the applicant had an urgent need to occupy his house, regard being had to his need to establish an independent family life and to have the possibility of having more children.

[1] The case is numbered 40/1994/487/569.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 334 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.