CONCURRING OPINION OF JUDGE Nicolaou

The domestic courts found that the applicant had not acquired a protected tenancy of the flat and that, therefore, he had no right to purchase it under the provisions of the Specially Protected Tenancies ( Sale to Occupier) Act 1991. As a result, although he was occupying the flat lawfully, he was doing so only as a non-secure tenant. This meant that the State, as owner, was entitled to immediate possession by virtue of the Ownership Act 1996. Consequently, relying on the legal provisions protecting the proprietary interests of the owner, the domestic courts made a possession order but did so without examining the issue, which the applicant had raised, of interference with his right under Article 8 of the Convention. He had pleaded it by way of defence to the State ' s action for possession and was, apparently, seeking to prevent the making of a possession order altogether rather than simply to defer it. But the latter must be taken as included in the former; so there was good reason to examine the matter in its entirety.

That the flat had been, since 1991, the home of the applicant and his family was undisputed. It was also clear that the applicant ' s immediate eviction would, in the circumstances, constitute an interference with his right to respect for his home. Such interference was, undoubtedly, legitimate. As we have recently said in the similar case of Ćosić v. Croatia (no. 28261/06, 15 January 2009):

“ ... the interference in question pursued the legitimate aim of protecting the rights of the State as the owner of the flat.”

However, to be compatible with Article 8 of the Convention such interference must also pass the proportionality test. “Home” is an autonomous concept which may exist even where occupation lacks a legal basis in domestic law (see Buckley v. the United Kingdom , 25 September 1996, § 54, Reports of Judgments and Decisions 1996-IV). The absence of a legal right may be the cause of a possession order or, as here, the result. In either case the occupier may have the right, under Article 8, to remain in occupation of the property for some time thereafter. This aspect of the right to respect for the home is obviously an important one, but it must be seen and assessed in the context of proprietary and contractual rights and within the principle of legality. The Convention requires that the two competing interests be balanced by a judicial decision.

It is obvious that in the present case the question of proportionality meant, in practical terms, giving the applicant time so that he could make suitable arrangements to obtain alternative accommodation. This might have been achieved by an appropriate order for a temporary stay of execution of the possession order with, in my view, the possibility of reviewing the stay of execution in the event that it proved inadequate.

As it turned out, the domestic authorities did, for one reason or another, grant the applicant time. It was more than ample. However, that did not redress the situation. The applicant lacked certainty and remained, throughout, at the mercy of the authorities when he was entitled to a judicial determination of the matter. This requirement is underlined in the following extract from McCann v. the United Kingdom , no. 19009/04, § 50, 13 May 2008:

“The loss of one ' s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupat ion has come to an end”.

I agree, therefore, that there has been a violation of Article 8 of the Convention in the present case.

DISSENTING OPINION OF JUDGE MALINVERNI

(Translation)

1. I cannot agree that in this case there has been a procedural violation of Article 8 of the Convention. The majority have reached this conclusion on the grounds that the civil court ordered the applicant ' s eviction from his home without having determined the proportionality of the measure. Thus, the applicant had not been afforded adequate procedural safeguards (paragraph 45).

2. Referring to the case of McCann v. the United Kingdom (no. 19009/04, paragraph 50, 13 May 2008), the Chamber states that any person at risk of an interference with the right to respect for the home should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.

3. On the other hand, the Chamber emphasises that such an issue does not automatically arise in each case concerning an eviction dispute. If an applicant wishes to raise an Article 8 defence to prevent eviction, it is for him to do so and for a court to reject the claim.

4. The Chamber ' s criticism of the domestic courts stems from their apparent failure to strike a balance between the competing interests : on the one hand, the owner ' s right to the peaceful enjoyment of his property and, on the other, the applicant ' s right to respect for his home .

5. In my opinion, the only significant argument that the applicant could have raised in support of his claim and that could have been examined in the balancing of interests was his son ' s state of health . However, he failed to rely on this before the lower courts and only did so before the Supreme Court ( paragraph 11). The courts below could not therefore have known about this problem and they cannot be criticised for failing to take it into account .

6. An owner of a flat, be it a private individual or the State, has the right to dispose freely of that property. Thus, an eviction order against a tenant occupying a flat owned by a third party issued on the grounds that the tenant is occupying a flat without a valid legal basis is not as such contrary to the Convention, regard being had to the guarantees under Article 1 of Protocol No. 1 to the Convention.

7. Furthermore, in the present case, although the eviction order was issued in October 2002, it has not been enforced to date. The applicant ' s eviction was adjourned on several occasions owing to the illness of his son. No attempts at eviction have been made since April 2005. This shows that the national authorities have taken due account of the applicant ' s personal situation.

8. In my view, the circumstances of the present case we re not capable of giving rise to an arguable case that would have required further examination of the issue of proportionality by the civil court which conducted the proceedings ending with an order for the applicant ' s eviction.