SEPARATE OPINION OF JUDGE DE GAETANO

My only reservation in this case is with the principle as set out in the second sentence of paragraph 65. This sentence is a verbatim reproduction of what is found in § 50 of McCann and in § 68 of Kay (the sentence was slightly modified , but not in substance , in § 43 of Paulić ). However , all the cases quoted in support of the principle as thus formulated (including , indirectly , Connors ) are cases where the landlord was either the Government or a local authority. None were cases where the landlord was a private individual. In my view while it is perfectly reasonable to require that an eviction or repossession notice issued by the Government or by a local authority – both of which are normally under a public law obligation to provide accommodation for people within their jurisdiction – or possibly even by a private entity in receipt of public funds , should be capable of being challenged on the grounds of proportionality , when the landlord is a private individual the tenant ’ s right should in principle be limited to challenging whether the occupation – tenancy , lease , encroachment concession , et cetera – has in fact come to an end according to law. In this latter case the proportionality of the eviction or repossession in light of the relevant principles under Article 8 should not come into the equation. This is not to say , of course , that the Government may not , by legislation , impose restrictions on the use of the property by the landlord upon or after the termination of the occupancy , from which restrictions the last tenant or occupant might even benefit (see , by way of analogy , James and Others v the United Kingdom , no. 8793/79 , 21 February 1986; Hutten-Czapska v. Poland , [GC] no. 35014/97 , 19 June 2006); but this is a totally different issue from what is being proposed in the second sentence of paragraph 65.

As the late Professor A. L. Goodhart said , ‘ The principle of a case is not to be found in the reasons given in the opinion ’ ; it should , instead , be found by taking account of the facts treated by the judge as material , and his decision based on those facts [1] . It is precisely to prevent what we have said in the second sentence of paragraph 65 from being extrapolated to a different context that I would have preferred that the principle should have been qualified or otherwise restated.

[1] Goodhart , A.L. , Essays in Jurisprudence and the Common Law , ( Cambridge University Press) , 1931 , p. 25.