PARTLY DISSENTING OPINION OF SIR NICOLAS BRATZA

1. I have voted with the majority of the Chamber on all aspects of the case save in respect of their conclusion that there has been a violation of Article 34 of the Convention. I am unable to find that the provision was violated in the particular circumstances of the present case.

2. The conclusion of the majority is based on the delay of the Moldovan authorities in complying with the interim measures indicated to the Government under Rule 39 of its Rules of Court in the even ing of Thursday 10 November 2005 and requiring that the applicant should not be transferred from the Republican Neurology Centre of the Ministry of Health (“the RNC”) until the Court had had the opportunity to examine the case, that is until 29 November 2005 at the latest.

3. The events surrounding the grant of the interim measures appear from the Chamber ’ s judgment.

The applicant had from 2 November 2005 been undergoing hyperbaric oxygen (“HBO”) treatment at the Republican Clinical Hospital (“the RCH”) to which he was escorted every second day from the RNC. The treatment was scheduled to continue until 28 November 2005. The interim measures were applied by the Court in consequence of a decision of the Centru District Court of 10 November that the applicant should be transferred from the RNC to the prison hospital, the court basing its decision on the RNC ’ s letter of 9 November which stated that the applicant ’ s condition had stabilised and that he would be released from the Centre on 10 November. Since HBO therapy was not included among the RNC ’ s recommendations for treatment, the Court did not find the future schedule of HBO treatment to be relevant.

The interim measures were indicated to the Government by facsimile letter. On the following day, Friday 11 November 2005,

(i) the Deputy Registrar of the Fourth Section of the Court made several telephone calls to the numbers indicated to the Court ’ s Registry by the Government Agent but received no response;

(ii) it appears that the applicant requested the trial court to stay the execution of its decision and to prevent his transfer from the RNC, submitting a copy of the Court ’ s fax applying the interim measures. The Centru District Court did not hold a hearing or otherwise respond to the applicant ’ s request and, on the same day, the applicant was transferred to the prison hospital;

(iii) according to the Government, on receiving the Court ’ s fax in the morning, the Government Agent, Mr. Parlog, took immediate steps to comply with the measures indicated by writing to the President of the trial court.

The precise sequence of events thereafter is unclear. According to the Observations of the Government, since a hearing of the court could not be fixed for the same day, the court summoned the parties to a hearing on the next working day, namely Monday, 14 November (see § 95). However, according to a letter of 12 December 2005 addressed by the Supreme Council of Magistrates to the applicant ’ s lawyer in response to his letter of complaint about the failure of the trial court to examine his request of 11 November, the Centru District Court had only officially received information about the Court ’ s interim measures at 2.19 pm on 14 November and, following an urgent hearing, had ordered the applicant ’ s transfer to the RNC (see § 50).

It is undisputed that, on 14 November, the applicant was re-transferred to the RNC on the order of the trial court but, since the Centre saw no medical reason for the transfer and since the applicant ’ s medical file was not immediately available, the management of the Centre refused to admit him for a period of about 6 hours.

4. In its Mamatkulov judgment ( Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128, ECHR 2005-I), the Court held that “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”.

A violation of that Article was found in the Mamatkulov case itself, as it was in subsequent cases which similarly involved the expulsion or extradition of an applicant in disregard of the terms of interim measures applied by the Court under Rule 39 to protect the applicant against the risk of being subjected to treatment contrary to Article 2 or 3 in the receiving country (see, for example, Shamayev and Others v. Georgia and Russia , judgment of 12 April 2005, no. 36378/02, ECHR 2005- ; Olaech e a Cahuas v. Spain , judgment of 10 August 2006 no. 24668/03, ECHR, 2006- ).

5. There are, however, in my view two important points of distinction between the circumstances of the earlier cases and those of the present case which would justify the Court in reaching a different conclusion. In the first place, there was no intentional disregard of the interim measures 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. Admittedly, there was a regrettable delay before the applicant was reinstated in the Centre and the judgment rightly draws attention to the deficiencies in the system which are exemplified by this case, in particular, the absence of any official, on 10 November, capable of

reacting to the Court ’ s fax or, on 11 November, to answer telephone calls from the Court and the apparent lack of effective communication between the judicial or other authorities to ensure that a hearing was convened as a matter of urgency on 11 November, to prevent the applicant ’ s removal from the RNC, or to ensure his prompt return. In addition, the interval of six hours before the applicant was eventually re-admitted to the RNC suggests poor co-ordination between the relevant authorities, including the judicial and medical authorities. However, I have no reason to doubt that, once he became aware of the interim measures, the Government Agent took immediate steps to try to remedy the situation and, so far as possible, to avert any harm being caused by the removal of the applicant from the RNC, although in the result the steps did not prove to be as effective as they should.

6. Secondly, and more importantly, I am unable to find that, on the particular facts of the present case, the delay in implementation of the interim measures can be said to have hindered 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 in disregard of the terms of a Rule 39 indication has the inevitable consequence of rendering nugatory the exercise of the right by preventing the Court from conducting an effective examination of the Convention complaint and, ultimately, of protecting the applicant against potential violations of the Convention rights invoked.

It is true that, as pointed out in the Court ’ s Olaechea Cahuas judgment, the effective exercise of the right may be “hindered” within the meaning of Article 34 even in circumstances where it remains possible for the Court to examine the complaint. The very purpose of applying interim measures is the avoidance of 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, while complaints of a violation of core Convention rights are being examined by the Court. Even a delay in compliance with the interim measures which exposes the applicant to such a risk, may in certain circumstances amount to a hindrance to the effective exercise of the right. However, in the circumstances of the present case and having regard in particular to the fact that the applicant ’ s condition was found to have stabilised before he was discharged from the RNC on 10 November, I am unable to share the view of the majority that the relatively short delay which elapsed before the applicant was returned to the RNC and enabled to complete his course of HBO therapy exposed him to a very severe risk to his life or health or amounted to a hindrance to the effective exercise of his right of individual petition so as to give rise to a violation of the State ’ s obligations under Article 34.