CONCURRING OPINION OF JUDGE MULARONI

I agree with the conclusion of the majority that there has been a violation of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1.

However, as to paragraphs 60, 61 and 62 of the judgment, I would make the following observations.

Contrary to the Government ' s submission, it is clear that a g overnmental a ct is not a “legislative measure”. It is equally clear that, under Georgian legislation, a governmental o rdinance does not fall within the category of normative legal acts, and constitutes an “individual legal act”, valid for one specific purpose a nd not intended to prescribe a general rule of conduct for recurrent applications (see paragraphs 28 and 29 of the judgment).

This suffices for me to conclude that the interference with the applicant company ' s right to the peaceful enjoyment o f its possession as from 2 July 2004 onwards was not “lawful” un der the terms of Article 1 of Protocol No. 1.

However, I have some difficult y in sharing the majority ' s view tha t the adoption of the impugned governmental o rdinance amounted to the authorities ' second attempt to interfere with the applicant company ' s right to the peaceful enjoyment of its possession s . I believe that this case should be distinguished from the judgments in Stran Greek Refineries and Stratis Andreadis v. Greece ( judgment of 9 December 1994, Series A n o . 301-B ) and Antonakopoulos, Vortsela and Anton a k o poulou v. Greece , (n o . 37098/97, 14 December 1999) for two important reasons: unlike what happened in those two cases, in the present case the respondent Government never denied the existence of the debt owed to the applicant company, and no attempt was made at the national level to cancel , through legislation , a property right that had been recogni s ed by national courts. Having considered that, due to the scarcity of funds, the simultaneous payment of all judgment debts was not feasible, the Georgian g overnment introduced a mechanism for the staggered payment of outstanding debts, establishing an order of priority as to the enforcement of court decisions (see paragraph 27 of the judgment).

I consider that if an emergency or a deep economic crisis affects a country, and if there are insufficient funds available to pay all judgment debts simultaneously , the introduction by a respondent State of a lawful temporary measure aimed at the gradual pa yment of all outstanding debts sh ould not simply be disregarded as being unreasonable or “unlawful” just because it would constitute an unacceptable attempt to interfere with an individual ' s property rights. I accept that in such circumstances the introduction of priorities in the payment of judgment debts could be said to fall within the margin of appreciation of the respondent State , which is, in principle, better placed than an international court to assess which sections of the population would suffer more as a consequence of belated payments. I have no problem in saying that such an interference may pursue a legitimate aim. The issue to be determined would be whether a fair balance has been struck between the demands of the general interest of the community and the protection of the individual ' s property rights.

I also have difficulty in sharing the majority ' s additional reason for finding a violation of Article 1 of Protocol No. 1 on the ground of the “unlawfulness” of the impugned ordinance, namely that it did not enable the applicant company to foresee exactly when it would be entitled to receive the payment due. I observe that several national bankruptcy laws (which, incidentally , do not only apply to private companies in certain countries) could hardly be said to satisfy the requirements of precision and foreseeability regarding the exact time at which creditors should be paid.

Having said that, and although I am aware that when the Court considers that an interference is not “lawful”, it does not usually pursue the examination of the case further in order to determine whether a fair balance has been struck between the public interest and the protection of the individual ' s right to property, I nevertheless wish to add something on that point.

The Court ' s case-law is very clear in reiterating that it is not open to a State authority to cite a lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances. However, the delay may not be such as to impair the essence of the right protected under Article 6 § 1 of the Convention (see, among many other authorities, Burdov v. Russia , no. 59498/00, § 35, ECHR 2002-III, and paragraph 48 of the present judgment). The same principle applies to Article 1 of Protocol No. 1: the delay may not be such as to impair the essence of the right protected by this provision.

Consequently, my conclusion is that, from 2 July 2004 onwards, the interference with the applicant company ' s right to the peaceful enjoyment of its possessions in the specific circumstances of the case was unlawful. However, I would add that, by failing for over five and a half years to ensure the execution of the binding judgment of 6 December 1999 , a fair balance was not struck between the demands of the general interest of the community and the protection of the applicant company ' s property rights.

[1] 1. All conversions to euros are based on the exchange rate on 6 June 2005.