PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE CABRAL BARRETO

(Translation)

I have difficulty in following part of the majority's reasoning.

1. As regards the complaint concerning the impartiality and independence of the tribunals (Article 6 § 1 of the Convention), I agree that, in view of the intervention of the executive branch of the State in the judicial process, the applicant company's case was not examined by a tribunal offering all the guarantees required by Article 6.

There has therefore been a violation of Article 6 § 1 of the Convention.

2. I would be the first to admit that the objection ( протест ) procedure constitutes one of the most serious and flagrant violations of the res judicata rule, which is itself one of the major foundations of a democratic society based on the rule of law, as required by the Convention.

However, owing to the applicant company's own conduct, I hesitate to find that it may still be regarded as a victim of a breach of that rule.

Allow me to explain.

By two judgments of 12 January 1999 a bench of the Supreme Arbitration Tribunal dismissed appeals by the applicant company. Once those judgments had become final, the proceedings ended.

The proceedings in issue were reopened following an objection by the President of the Supreme Arbitration Tribunal at the express request of the applicant company in February 1999 (see paragraph 33 of the judgment).

It is true that there was subsequently a further objection, by the Ukrainian Attorney-General's Office, against the decisions that were favourable to the applicant company.

However, this was as a result of the applicant company's initial conduct and, therefore, in my opinion, it cannot escape application of the principle “ nemini licet venire contra factum proprium ” (no one may set himself in contradiction to his own previous conduct).

3. The finding of a violation of Article 1 of Protocol No. 1 is based on the same matters that led the Court to find a violation of Article 6 § 1.

The applicant company's complaints under Article 1 of Protocol No. 1 are the same as those already examined by the Court under Article 6 § 1, in respect of which it found a violation.

In these circumstances, it seems to me that it is unnecessary to examine whether there has also been a violation of Article 1 of Protocol No. 1 in the instant case.

This is the only reason for my not concurring with the majority on this point.