CONCURRING OPINION OF JUDGE DEDOV

My opinion is intended to strengthen the arguments for finding a violation of Article 8 of the Convention, since the Chamber ’ s arguments as expressed in paragraphs 48 and 49 of the judgment could be contested in the following way.

The Court presumed that “employees paid obligatory monthly contribution to housing funds”, without pointing out any legal consequences of such contributions and providing no legal basis why such contributions would give rise to purchasing rights. The same doubts should apply to the fact that the flat was occupied between 1970 and 2010, as there is no legal analysis based on relevant domestic law as to whether this would automatically grant the applicant property rights. I cannot find reasons why the domestic court should have considered this issue and on what legal basis. The applicant did not claim title to ownership, nor did she challenge the privatisation of the properties by Mlini Hotels before a court, with the State as defendant. Further, the use of social housing concerns the relationship between the State and citizens, but after privatisation the new private owner was not subject to the State ’ s social obligations.

In such a borderline case it is difficult to choose which approach would be best applied by the Court in determining which set of conflicting interests (those of the new private owner or those of the tenant) should prevail. In particular, I see a problem with the proportionality test , as there is no area where the new owner ’ s rights could be limited in favour of the applicant. The domestic courts examined this issue , finding that the applicant had another flat to live in. Moreover, when the Court indicates that the domestic courts did not take certain circumstances into account in assess ing the legal nature of the relationship between the conflicting parties, it risk s go ing beyond its competence and act ing as a court of fourth instance in relation to the merits of the case.

I would not describe the domestic court ’ s decision to satisfy the private owner ’ s claims as interference, because had it done otherwise this would have amounted to interference with the owner ’ s rights and such interference would be arbitrary from the very outset, since the private owner cannot be responsible for the State ’ s social obligations.

Given the uncertainty of the applicant ’ s legal status, I would prefer to base my conclusion on the State ’ s failure to take care of its former employee, a resident in social housing, and to provide her with another publicly-owned flat before entering into a privatisation transaction. In other words, the State failed to fulfil its positive obligation to take measures to protect the applicant ’ s legal entitlement to social housing and to avoid any potential conflict between the private owner and the tenant in respect of a right to the premises. The State should have foreseen the existence of such an obligation, arising from the change in the flat ’ s legal status following its privatisation.

Another aspect of the State ’ s positive obligations is its duty to maintain the quality of domestic law by ensuring a complete and comprehensive response to the issue of what should happen with regard to tenants ’ status after privatisation.