PARTLY DISSENTING OPINION OF JUDGE COSTA

(Translation)

I do not consider Moldova to have been in breach of Article 34 of the Convention in the instant case, as it did not hinder the effective exercise of Mr Paladi ' s right of individual petition. Admittedly, it would have been preferable for the authorities to have complied even more promptly with the interim measure indicated by our Court. However, an overly rigid attitude seems to me to go too far and to fail to take account of the full circumstances of each case. I am not convinced by such an approach.

For more detailed reasons as to why I voted this way, I would refer to the remarks made by Judge Malinverni in his opinion, in which he has been joined by several of our colleagues and with which I concur.

PARTLY DISSENTING OPINION OF JUDGE Å IKUTA

To my great regret I cannot share the opinion of the majority in finding a violation of Article 34 of the Convention. I wish to explain briefly my main reasons for not concurring.

As I understand it, in the instant case there was a clash of timing between the execution of the Centru District Court decision of 10 November 2005 ordering the transfer of the applicant from the RNC to the prison hospital and the interim measure issued by our Court on the evening of the same day. The latter, for practical purposes, reached the Government on the morning of the next day, 11 November 2005, by which time the decision ordering the transfer of the applicant from the RNC had most likely already been executed. In that case the only way to remedy the situation was for the national trial court to issue a new order for the applicant to be readmitted to the RNC. This clash of timing between two different communications, compounded by the lack of precise communication and coordination between the different actors involved, led to a slight delay in implementation of the interim measure.

1 . As the Court stated in Mamatkulov : “ ... b y virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant ' s right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant ' s complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34” (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128 , ECHR 2005 ‑ I ).

I am not of the opinion that in the instant case all the conditions and criteria laid down in Article 34 of the Convention were met, and in particular that (a) the Government failed to comply with the interim measure of the Court and (b)              the Government hindered the effective exercise of the applicant ' s individual right.

(a) The Government acknowledged reception of two letters from the Court by facsimile on the evening of 10 November 2005 (Thursday), but stressed that the Court ' s Registry had not sent the relevant letters also by electronic mail, as previously agreed in respect of general correspondence. Having received the fax on the morning of 11 November 2005 (Friday), the Government Agent, Mr V. P â rlog, took immediate steps to comply with the interim measure indicated. He was not entitled to make a decision in this matter by himself, and in order to implement the interim measure indicated by the Court had to cooperate with the national judiciary. In particular, the Agent wrote a letter to the President of the trial court on the same day (Friday). The national judiciary had the responsibility to guarantee and ensure observance of the right to a fair trial by ensuring that all the parties

involved were present. In this context it was questionable whether the trial court would be able, in practical terms, to summon all the parties to the case for the Friday afternoon since this process, which includes complying with the procedural provisions, can be reasonably expected to take a certain amount of time. Since it was impossible to convene all the parties for a hearing on the same day, the court summoned them for the next working day, 14 November 2005 (Monday). On that day the applicant was transferred back to the RNC.

Therefore, I am of the opinion that, in overall terms, and in view of the time available and the circumstances, all reasonable steps were taken to comply with the interim measure .

(b) Although there were some problems in communication between the institutions involved at the national level as well as certain delays, for instance in admitting the applicant to the hospital on 14 November 2005, in my view it is not automatically the case that a delay of whatever kind amounts to disregard of the interim measure; in my opinion t here was no disregard of the interim measure , nor any intention to disregard it on the part of the national authorities, who, once they became aware that Rule 39 had been applied, sought to comply with the Court ' s directions by returning the applicant to the RNC.

I do not therefore see any hindrance of the effective exercise of the right of individual petition within the meaning of Article 34 of the Convention. In this respect the case is very different from those where the removal of an applicant from a country has inevitable consequences for the life or treatment of the person in question.

2. The very purpose of applying interim measures is to avoid a risk of irreparable damage being caused to the physical or mental integrity or health of an applicant as the result of a proposed course of action.

The following are also important elements or indicators in assessing whether there was irreparable damage or risk of damage:

(a) the RNC ' s letter dated 9 November 2005, according to which the applicant ' s condition had stabilised;

(b) the finding s of the medical commission set up by the Ministry of Health on 11 March 2008 for the purpose of determining the applicant ' s state of health during the period from 21 September to 30 November 2005, which established that the applicant had been given all the treatment prescribed by the RNC while in detention in the prison hospital. The interruption of the applicant ' s HBO treatment had not affected his state of health, as proved by his stable blood-sugar levels before and after interruption.

(c) the HBO treatment was not prescribed but merely recommended by the doctor, as confirmed by the applicant ' s representative at the Grand Chamber hearing held on 14 May 2008.

Bearing that in mind, I am not of the opinion that this short delay could have caused a reasonable risk of irreparable damage to the applicant and put him at severe risk to his life or health.

On the basis of all the above considerations I have come to the conclusion that the Government did not act in a manner contrary to the purpose of Article 34 of the Convention, and therefore that there has been no breach of Article 34 of the Convention.