PARTLY DISSENTING OPINION OF JUDGE ZAGREBELSKY

I voted against the majority’s conclusion that there has been no violation of Article 8 of the Convention. With regret I could not follow the reasoning that convinced the majority of judges to exclude finding any violation of the applicants’ private life.

There is no doubt that the environment is not protected as such by the Convention. But at the same time there is no doubt that a degradation of the environment could amount to a violation of a specific right recognised by the Convention ( Powell and Rayner v. the United Kingdom , judgment of 21 February 1990, Series A no. 172, § 40; López Ostra v. Spain (judgment of 9 December 1994, Series A no. 303-C, § 51; Guerra v. Italy , judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 57).

In the present case it is clear that there was a deterioration in the quality of the environment in which the applicants’ house was situated. In particular, it is indisputable that the new urban development has caused damage to the habitat of the fauna which made the swamp area next to the applicants’ property near the coast of Ayios Yiannis , exceptionally interesting and agreeable.

In my view, it could hardly be said that the deterioration of the environment did not lead to a corresponding deterioration in the quality of the applicants’ life, even without taking into account their special interest in the study of the swamp fauna.

It is obviously difficult to quantify the damage caused to the quality of the applicants’ private and family life. But the issue here is whether or not there has been an interference, not how serious the interference was. Certainly we should exclude finding any interference with the applicants’ rights if the deterioration concerned is so negligible as to be virtually non ‑ existent. In my view, however, this was not the case. In paragraph 53 the majority accept by way of example that the destruction of a forest bordering the applicants’ house could constitute direct interference with private and family life for the purposes of Article 8 of the Convention. I agree, but I see no major difference between the destruction of a forest and the destruction of the extraordinary swampy environment the applicants were able to enjoy near their house.

I am willing to admit that the interference in question was not major, but in my view it is impossible to say that there has been no interference at all. It is true that the importance of the quality of the environment and the growing awareness of that issue cannot lead the Court to go beyond the scope of the Convention. But these factors should induce it to recognise the growing importance of environmental deterioration on people’s lives. Such an approach would be perfectly in line with the dynamic interpretation and

evolutionary updating of the Convention that the Court currently adopts in many fields.

Article 8 allows even serious and major interferences by the State with the right to private and family life. However, an interference will contravene Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve them. In the present case, it is not necessary to examine whether the interference with the applicants’ right was necessary and proportionate to the competing economic interests. Here the Court has only to ascertain that, as the Greek courts ruled, the interference was unlawful. Thus, the first and basic condition for the legitimacy of even a minor interference with private or family life has not been fulfilled.

Therefore, I think that the Court should have found a violation of Article 8 of the Convention.