PARTLY CONCURRING OPINION OF JUDGE JOÄŒIENÄ–

I agree with the conclusions of the Chamber as indicated in the operative part of the judgment. I also voted with the majority of the Chamber in finding a violation of Article 1 of Protocol No. 1; however, in this case I would like to stress two decisive aspects concerning the applicability of Article 1 of Protocol No. 1.

First of all, taking into account the case-law of the Court developed in this field (see paragraphs 106 and 108 of the judgment, and especially the dissenting opinion of Judge Mularoni in the case of Önery ı ld ı z v. Turkey [GC], no. 48939/99, ECHR 2004 XII ), I consider that the question of the applicability of Article 1 of Protocol No. 1 raises some issues in this case. I wish to draw attention to the fact that the first applicant was granted the disputed cottage for the purposes of his service as a high-ranking official of the Abkhazian Ministry of the Interior (see paragraphs 8 and 104). This fact, in normal circumstances, should have meant that the applicant could use the cottage while discharging his official functions in the above ‑ mentioned Ministry. After being dismissed from the Ministry of the Interior, the applicant should then have stopped living in the cottage, which had been granted for official purposes only.

But this case has very specific circumstances which, in my opinion, attract the application of Article 1 of Protocol No. 1. Accepting the fact that the cottage had been granted for official purposes, I note that the first applicant on 20 April 2000 received an official letter from the Ministry of the Interior confirming that he and his family had settled in the cottage in 1994 on the basis of an ordinance issued by the Minister under the Internally Displaced Persons and Refugees Act of 28 June 1996 (“the IDPs Act” – see paragraph 12 of the judgment). I accept the arguments developed by the Chamber in paragraph 105 and I further note that there was a clear legal obligation on the State to accommodate and protect internally displaced persons in view of the humanitarian crisis prevailing in Georgia in 1993 to 1994. Taking into account the Chamber ' s arguments set out in paragraph 107 that the State, by passing various legal acts, confirmed IDPs ' rights in the housing sector and established solid guarantees for their protection, I consider that such a clearly established legal obligation on the State to protect IDPs ' rights, including the right to accommodation, creates for them a clear pecuniary dimension protected under Article 1 of Protocol No. 1.

Furthermore, I would stress another argument in favour of the applicability of Article 1 of Protocol No. 1 in this case: the Georgian courts at three levels of jurisdiction (see paragraphs 25-44 of the judgment) had clearly decided that the applicant had “possession” of the cottage (see paragraphs 26, 36, 43 and 44). In its case-law, the Court has recognised its own subsidiary character (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 140, ECHR 2006-V), which means that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, mutatis mutandis , Kopp v. Switzerland , 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II). In this case, the Georgian courts ' clear acknowledgment of the first applicant ' s “possession” with regard to the disputed cottage and its use brings the case within the scope of Article 1 of Protocol No. 1.

PARTLY DISSENTING OPINION OF JUDGE CABRAL BARRETO

(Translation )

I can follow the majority in all its reasoning except for that concerning the violation of Article 1 of Protocol No. 1.

In my view, the first applicant was not the owner of any possession, within the meaning of Article 1 of Protocol No. 1.

1. As is said at paragraph 8 of the judgment, the first applicant was a high ranking official in the Ministry of the Interior who, in January 1994, was offered the post of Head of the Investigative Department; once he had accepted that job, he and his family were provided with accommodation in a cottage belonging to that Ministry.

2. My understanding is that the cottage was offered to the applicant by virtue of his civil servant status.

The applicant was in possession of this property not in his own name, but in that of the owner, the Ministry of the Interior

Even if the applicant ' s possession of the cottage lasted more than ten years, there was never any qualitative change in the applicant ' s legal relationship with that property.

3. However, the right to inhabit particular accommodation of which one is not the owner does not amount to right to property within the meaning of Article 1 of Protocol No. 1 (see, amongst other authorities, the Court ' s decision in the case of JLS v. Spain, no. 41917/98, Reports 1999-V).

Even if there has been an interference in or deprivation of certain property, only the owner or the person in possession in his or her own name may claim to have suffered a violation of Article 1 of Protocol No. 1.

4. In the light of these considerations, I prefer to examine the events to which the first applicant was subjected under Article 8 of the Convention and find a violation of his right to respect for his home.

[1] Here and elsewhere, approximate conversions are given in accordance with the exchange rate of the Georgian lari (GEL) and the United States dollar to the euro on 2 1 January 2010 .