PARTLY DISSENTING OPINION OF JUDGE KOVLER

( Translation )

I regret to say that I am not on the same “ wavelength ” as the majority of the Court regarding the analysis of the complaint under Art icle 8 of the Convention. The majority preferred to conclude that there was no need to examine separately the applicant ’ s complaint under Article 8, on the formal ground that the complaint “ ar [ ose ] out of the same facts as those examined under Article 1 of Protocol No. 1 ” and therefore “[did] not raise any separate issue under this provision ” ( see paragraph 96 of the judgment ). In so doing , the majority adopted the reasoning followed in other similar judgment s (see, among other authorities , Hamer v. Belgium , no. 21861/03, § 93 , 27 November 2007 , and Önery ı ld ı z v. Turkey [G C] , no. 48939/99, § 160, ECHR 2004 ‑ XII). The present case can be distinguished from the above- mentioned ones, however. The applicant, who was unaware when he bought his house that it had been built illegally built on publicly owned land, referred to the decades spent peacefully in a strong social a nd family environment, thus raising a matter which, in my opinion, falls within the category of a right to “private life” and to “family life” guaranteed by A rticle 8. I would have preferred the Court to examine the case un der that provision rather than under Art icle 1 of Protocol No. 1. Far from calling into question the submissions of the applicants ’ representatives or the Court, I simply subscribe to the concurring opinion of Judge Casadevall , who expressed doubts as to the applicability of A rticle 1 of Protocol No. 1 in this case , and rightly so, as it is in reality the right to respect for “home” (“house” if this concept is applied to a second home ) that is at stake here .

I feel compelled to point out that in the Buckley judgment the Court expressed itself as follows :

“ In Mrs Buckley ’ s and the Commission ’ s submission there was nothing in the wording of Article 8 or in the case-law of the Court or Commission to suggest that the concept of ‘ home ’ was limited to residences which had been lawfully established . ” (see Buckley v. the United Kingdom , 25 September 1996, § 53 , Reports of Judgments and Decisions 1996 ‑ IV )

Admit t edly, that “ generosity ” in the interpr e tation of Article 8 could be explained by the fact that, in that case as in Chapman v. the United Kingdom ([GC], no. 27238/95, ECHR 2001-I) , the Court sought to protect the traditional lifestyle of Gypsies , of which caravan homes and travel are a part . Whil e the applicant does not belong to the category of persons requiring special protection in t he eyes of the Strasbourg judges , his “advanced” years and his attach ment to the house nonetheless deserved a more nuanc ed approach . The applicant submitted that the measure in question – namely, the refusal on the part of the national authorities to allow him to continue occupying the land and house – also interfered with his right to respect for his home as guaranteed by Article 8, “ on account of the interference, of a non-pecuniary nature , that severely affected all the strong roots his family had laid down over the years ” (see paragraph 94 ). The Court had already attempted to combine the two provisions in the Mente ş and Others judgment, which concerned the demolition of houses and the eviction of villagers:

“ Furthermore, the Court observes that the facts established by the Commission ... and which it has accepted disclose a particularly grave interference with the first three applicants ’ right to respect for private life, family life and home, as guaranteed by Article 8 and that the measure was devoid of justification . ” (see Mente ş and Others v. Turkey , 28 November 1997, § 73, Reports 1997-VIII)

I regret the Court ’ s fail ure to take the opportunity offered to it here to spell out its approach to the home (house)/ private and family life dipty ch that emerges very clearly in the present case .