Separate OPINION of Judge Cabral Barreto

( Translation )

I agree that this case concerns a problem of a violation of Article 14 of the Convention taken together with Article 8.

Where I differ with my colleagues is that they consider that the mere fact that the domestic courts have decided that the applicant must leave his home amounts to a violation whereas I am of the view that there would be a violation only if the threat of eviction was carried out.

Everything depends on the degree of importance one attaches to the present situation of the applicant and his family, who have been living under the threat of eviction since the possession proceedings were instituted.

I agree that the suffering caused by this situation must be treated by the Court as “non-pecuniary damage” (see, mutatis mutandis , the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234-A, p. 30, § 86).

However, as regards the question of whether there has been a violation, I prefer to take a slightly different approach and to say that there will be a violation of Article 14 taken together with Article 8 if the decision to evict Mr Larkos and his family from their home is enforced.

While – for reasons which need not be set out here – it is unsatisfactory to apply the same reasoning in cases concerning the deportation of aliens (see the Beldjoudi judgment cited above and the Nasri v. France judgment of 13 July 1995, Series A no. 320-B, and my concurring opinion in the case of H.L.R. v. France, opinion of the Commission, Reports of Judgments and Decisions 1997-III, p. 770), applying that reasoning in the instant case would in my view enable the rights of the applicant and his family not to be evicted from their home to be better protected.

It should be remembered that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, for example, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, pp. 15-16, § 33).

[1] Notes by the Registry

-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] . Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] Notes by the Registry

. Protocol No. 9 came into force on 1 October 1994 and was repealed by Protocol No. 11.

[3] . Rules of Court B, which came into force on 2 October 1994, applied until 31 October 1998 to all cases concerning States bound by Protocol No. 9.

[4] . Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.