CONCURRING OPINION OF JUDGE MALINV ERNI , JOINED BY JUDGE SPIELMANN

(Translation)

I voted without hesitation for the finding that there had been a violation of Article 6. I am not convinced, however, that in the present case the authorities ’ refusal to enforce the judgment of 21 July 2003 also entailed a violation of Article 1 of Protocol No. 1. [1]

I note first of all that t he applicant was issued with an occupancy voucher for a flat in a recently constructed residential building on 1 December 1998. It transpired, however, that the flat had been occupied since 1 January 1998 – for eleven months – by a family whose members were internally displaced persons (“IDPs” – see paragraphs 6 and 7). This situation inevitably gives rise to a question which was in fact the root cause of the dispute: how could the competent authorities allocate a flat to the applicant when they knew – or at least should have known – that the flat was already occupied by an internally displaced family? Should they not have made sure beforehand that the flat was unoccupied?

I further observe that, in the present case, the applicant did not own the flat in question, but had only tenancy rights to it pursuant to the occupancy voucher (see paragraph 40). N otwithstanding the finding that a claim to a flat based on such an occupancy voucher constituted a “possession” falling within the ambit of Article 1 of Protocol No. 1, the applicant was not actually the owner (idem).

It is correct to say, as the Court found, that the impossibility for the applicant to obtain the execution of the judgment in his favour for more than six years constituted an interference with his right to peaceful enjoyment of his possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see paragraph 41).

However, I have greater difficulty agreeing with my colleagues when they state that, for the reasons set out in paragraph 36, the Court finds that no acceptable justification for this interference has been advanced by the Government (see paragraph 41, last sentence).

In other words, the reasons that led to a finding of a violation of Article 6 are said to be equally valid for a finding of a violation of Article 1 of Protocol No. 1. Is this reasoning correct? I personally do not find it convincing.

Whilst Article 6 does not give rise to a balancing of interests, such an exercise is required by Article 1 of Protocol No. 1. In the present case, the

two interests at stake were, on the one hand, the applicant ’ s interest, protected as it was by Article 1 of Protocol No. 1, in occupying the flat allocated to him, and on the other, the right of M. and his family to their home, as protected by Article 8, which covered the right not to be evicted.

Faced with these conflicting rights, which one should prevail? I am not persuaded that it should necessarily be the right under Article 1 of Protocol No. 1. In its judgment of 21 July 2003 the Yasamal District Court does not seem to have carried out this balancing of interests (see paragraph 10). However, in its decision of 2 July 2008 that same court seems to have taken into account the right of M. and his family not to be evicted, because it granted M. ’ s request and ordered a stay of execution of the judgment of 21 July 2003 until M. could move into one of the houses recently constructed for temporary settlement of IDPs (paragraph 16).

I regret, for my part, that the judgment did not balance the two competing interests before concluding that there had been a violation of Article 1 of Protocol No. 1. Instead of confining itself to finding that this Article had been breached, the Court should have taken into consideration the internally displaced family ’ s right to their home, and should have ensured that the family could be rehoused elsewhere.

[1] The same question arose in a case that was decided very recently, unanimously, by Section I ( Mirzayev v Azerbaijan , no. 50187/06, 3 December 2009), but I had overlooked the issue that is the object of this separate opinion. For that reason, and to avoid contradicting myself, I have chosen to draft a concurring rather than a dissenting opinion.