CONCURRING OPINION OF JUDGE BRATZA

With some hesitation I have voted in favour of the finding that the applicant’s rights under Article 1 of Protocol No. 1 were not violated in the present case. My hesitation relates not to the question whether the liquidator was to be seen as a public official or as to the nature and extent of the State’s positive obligations in the context of insolvency proceedings, on both of which points I fully share the view of the majority of the Court, but to the question whether those positive obligations were met in the circumstances of the present case.

The positive obligations under Article 1 of Protocol No. 1 were interpreted in the case of Sovtransavto Holding v. Ukraine (no. 48553/99, ECHR 2002-VII) as meaning in particular that States are under an obligation to afford judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private parties, including, as here, claims to recover by way of damages an amount due to the applicant. The requirement is not merely that there should exist a legislative framework but that there should be a degree of clarity and coherence in the law and procedures to be followed in order to avoid, in so far as possible, any legal uncertainty and ambiguity for the litigants concerned. In the Sovtransavto case itself, it was the difference of approach to the application and interpretation of domestic law between the various levels of jurisdiction, which made possible the repeated re-opening of the proceedings in issue and which created permanent uncertainty as to the lawfulness of the decisions in question, that led in part to the Court’s finding that Article 1 of Protocol No. 1 had been violated. In Plechanow v. Poland (no. 22279/04, 7 July 2009), it was the lack of clarity as to the identity of the appropriate authority to be sued, following fundamental changes in the competence of the various authorities at the local and State administrative levels, with the consequent shifting to the applicant of the duty to identify the correct defendant to the proceedings, which was found by the Court to be disproportionate and to upset any fair balance, in breach of Article 1 of Protocol No. 1.

There was indisputably a lack of clarity in the present case, both as to the issue of whether – and, if so, when – a claim for damages lay against a liquidator for mismanagement in settling the claims of the creditors of the bank, and as to whether any such claim should be brought in the commercial court or in the courts of general jurisdiction.

I do not attach much importance to the latter point or to the fact that in the supervisory review proceedings the Supreme Commercial Court found that the dispute between the applicant and the liquidator was not related to the insolvency procedure as such and should have been submitted to the courts of general jurisdiction. As noted in the judgment, not only did the parties to the 1999 proceedings and the representative of the Central Bank of Russia appear to share the view of the applicant that the proceedings had been brought in the appropriate court, but the commercial courts themselves, at three instances, considered that they had jurisdiction to hear the case. Had the final decision of the Federal Commercial Court been in favour of the applicant and had it been set aside on supervisory review, an issue might well have arisen under the Protocol. But this was not the case, the applicant’s claim having been rejected at each of the three instances.

The central question is whether the legal situation, as analysed and applied by the commercial courts, was so uncertain as to deprive the applicant of effective protection for his property rights. The judgment of the Court of Appeal of 31 March 1999 rejecting the applicant’s claim against the liquidator was based on two grounds: the risk of “double recovery” if damages were awarded against the liquidator while the liquidation proceedings themselves were still pending and the fact that the Insolvency Act extended only to claims which arose while the bank was operating and not to those arising during the insolvency procedure. However, as is pointed out in the judgment, only the “double recovery” ground was expressly upheld by the Federal Commercial Court in its judgment of 9 June 1999. I do not find such a decision to have been arbitrary or unreasonable (cf. OBG Ltd. and Others v. the United Kingdom , (dec.) no. 48407/07, § 90, 29 November 2011). Nor do I find unreasonable the commercial courts’ conclusion that the law did not provide for compensation for non-pecuniary damage. The legal position may have been unclear until the determination of the Federal Commercial Court. This is hardly surprising having regard to the fact that the decisions were taken at a time when the insolvency law and procedure were in a state of development and transition. However, viewed as a whole, I do not find such legal or procedural uncertainty in the present case as to deprive the applicant of effective protection of his property rights, the more so since it would have been open to the applicant to bring fresh proceedings against the liquidator when the liquidation proceedings were formally closed, an event which occurred shortly after the judgment of 9 June 1999.

PARTLY DISSENTING OPINION OF JUDGE GYULUMYAN

I disagree with the majority’s finding that the Court was competent to consider this case ratione temporis .

The Court has repeatedly held that in cases where the interference pre-dates ratification, while the refusal to remedy it post-dates ratification, to retain the date of the latter act in determining the Court’s temporal jurisdiction would result in the Convention being binding for that State in relation to a fact that had taken place before the Convention came into force in respect of that State (see, among other authorities, Blečić v. Croatia [GC], no. 59532/00, § 70, ECHR 2006-III). The Court has also held that “divorcing the domestic courts’ decisions” from the events which gave rise to the relevant proceedings would amount to giving retroactive effect to the Convention, contrary to general principles of international law (see Jovanović v. Croatia (dec.), no. 59109/00, 28 February 2002). In the present case the interference with the applicant’s “possessions” took place in 1996, when the liquidator took the money destined for the applicant and paid it to creditors who had no right to it. It was an instantaneous act, which occurred before the Convention entered into force in respect of Russia (5 May 1998). It is probable that the applicant, in such circumstances, was allowed to claim compensation from the liquidator personally. I admit that such a claim existed in Russian law at that time – at least, this is what the Government acknowledged in their observations. However, having read the judgments of 1999 I was left with the impression that the domestic courts had not been certain whether such a right really existed. It follows that the crux of the present case is not the proceedings which took place in 1999, but rather the substantive legislation in force at the time of the interference, namely in 1996. That legislation was probably not sufficiently clear and the applicant’s action against the liquidator in 1999 was thus doomed to fail. Be that as it may, the question of the alleged deficiency of the substantive rules of law which existed in 1996 escapes the Court’s jurisdiction ratione temporis .

DISSENTING OPINION OF JUDGES LORENZEN, FURA, POPOVIĆ, MALINVERNI AND RAIMONDI

In the present case the majority voted for a finding that there had been no violation of Article 1 of Protocol No. 1 as the State was considered not to have failed to fulfil its positive obligations under that Article. We are unable to agree with that conclusion for the following reasons.

As is stated in the judgment, the Court has, in its case-law, held that Article 1 of Protocol No. 1 may require “measures which are necessary to protect the right of property... even in cases involving litigation between individuals or companies” (paragraph 112) and that the State has a positive obligation, also in respect of interferences by a private individual, “to ensure in its domestic legal system that property rights are sufficiently protected by law and that adequate remedies are provided whereby the victim of an interference can seek to vindicate his rights, including, where appropriate, by claiming damages in respect of any loss sustained” (paragraph 113). Furthermore, the Court has held that even though Article 1 of Protocol No. 1 contains no explicit procedural requirements, States are under an obligation to provide “judicial procedures that [afford] the necessary judicial guarantees and [enable] the domestic courts and tribunals to adjudicate effectively and fairly any disputes between private persons” (paragraph 114).

The present judgment has confirmed these findings and we cannot but agree with this conclusion. We also agree with the point that in the circumstances of a case like the present one the State is obliged under Article 1 of Protocol No. 1 “at least to set up a minimum legislative framework including a proper forum allowing persons who find themselves in a position such as the applicant’s to assert their rights effectively and have them enforced” (paragraph 117).

The judgment has further stated that in Russian law, as it stood at the relevant time, the only avenue to be considered was a tort action for damages against the liquidator. The applicant did in fact try to obtain compensation from the liquidator and chose to pursue his claim before the commercial courts. The claim was, however, refused as unjustified. Only after the complaint to the Court had been communicated to the Government were the judgments of those courts annulled for lack of jurisdiction. Like the majority, we can only conclude that the applicant in the circumstances of the present case could not have been aware of the competence of the courts of general jurisdiction to hear his case (paragraph 122), that the rules on the jurisdiction of the relevant courts at the time were unclear, and that the applicant acted reasonably by taking his case to a court which appeared to have jurisdiction (paragraph 126).

In spite of the above, the majority have found that the proceedings instituted by the applicant were premature and that after the bank had finally been liquidated in June 1999 he should have used the possibility of proceeding against the liquidator for negligence before the courts of general jurisdiction. In that respect we disagree with the majority.

Even though, in theory, the applicant might have been able to sue the liquidator in tort before the courts of general jurisdiction, the legal situation was, in our opinion, so unclear as to deprive him of any practical redress for his grievances. The majority seem to have attached considerable importance to the “double recovery” argument upon which the judgment of 9 June 1999 relied. Apart from the fact that none of the commercial courts indicated that the applicant could or should have sued the liquidator before the courts of general jurisdiction, the “double recovery” argument was not the only one relied upon by the commercial courts. The Government themselves acknowledged that there had been other reasons for dismissing the applicant’s tort claim. Thus the judgment of 31 March 1999 (on appeal) stated that the Insolvency Act did not allow claims of creditors to be satisfied if they had not come into existence when the bank was operating but only during the insolvency procedure. The court of appeal thus did not make a distinction between the bank’s original debt and the liquidator’s personal liability in tort. In so doing it rendered the liquidator immune from any liability for his conduct, even if the law, as explained by the Government, provided for such liability. Even though in its judgment of 9 June 1999 the court of cassation relied on the “double recovery” argument, it upheld the judgment of the court of appeal in full, stating explicitly that there was no reason to modify it. Under these circumstances and having regard to the unclear legal situation at the time, the applicant was entitled to believe that his claim had been dismissed on the merits rather than as being premature and that his case had thus been closed. This is, in our opinion, further confirmed by the fact that it was only after the complaint to the Court had been communicated that it was established that the commercial courts had no jurisdiction to hear the claim against the liquidator.

Moreover, besides claiming the amount of the original court award, the applicant also sought compensation for non-pecuniary damage and loss of time. However, the courts found that the law did not provide for any compensation of that kind and dismissed his complaints. It thus appears that, whatever the fault of the liquidator, his responsibility would in any event have been limited to the amount of the original debt. The Government have not provided any information on case-law which would allow the Court to hold otherwise. That placed the aggrieved creditor in a very unfavourable position, especially in a context of a rampant inflation, as was the case in Russia at the relevant time, combined with the fact that he had to await the final termination of the liquidation after a lengthy insolvency procedure.

Based on the foregoing, we can only come to the conclusion that Russian law at the relevant time did not provide a sufficient legal framework in order to protect the applicant’s rights under Article 1 of Protocol No. 1. Consequently we find that the State has failed to fulfil its positive obligations under that Article, which has accordingly been violated.