JOINT DISSENTING OPINION OF JUDGES GYULUMYAN AND LÓPEZ GUERRA

1. We do not agree with the Chamber’s conclusions concerning the violation of Article 6 § 1 of the Convention. When, upon an exequatur request, the 2003 judgment of the Ciocana District Court of Chisinau was subject to recognition and execution by the Armenian authorities, the request was examined and answered at three judicial levels. In those proceedings, the Civil Court of Appeal of Armenia, overturning a previous pronouncement of the Erebani and Nabarashen District Court, decided on 23 April 2004 to dismiss the applicant’s request. The reason given was that the request dealt with matters subject to the res judicata principle, implying (as expressed in paragraph 68 of the present judgment) that “there had previously been a final judgment, namely the 1988 judgment, adopted between the same parties, on the same grounds and having the same subject matter”. The Civil Court of Appeal’s decision was upheld by the Armenian Court of Cassation.

2. In view of these circumstances we do not find that the Armenian authorities violated Article 6 § 1 of the Convention with respect to the due execution of the 2003 judgment of the Chisinau Court. In response to a petition for exequatur , on three different occasions the Armenian courts examined and adjudicated the applicant’s claims based on their appreciation of the facts of the case and their interpretation of the applicable law, both national and international. In their examination of the facts of the case, both the Court of Appeal and the Court of Cassation found that the Armenian court judgment of 1988 and the Moldovan court judgment of 2003 had dealt with the same subject matter (i.e., compensation due to the applicant for supplementary medical care and other costs derived from work injuries), basing their rulings on Article 55 (c) of the Minsk Convention, which excludes national authorities from recognising and enforcing the decisions of foreign courts in cases of res judicata . The Armenian courts stated the grounds for their judgments and the norms they were applying in a way which cannot be considered either arbitrary or unfounded. This is further reinforced by the fact that the company deemed responsible for compensation in the 1988 judgment had been declared bankrupt and sold to a third party, which was judicially ruled not to be liable for the company’s debt.

3. The applicant disagrees with the findings of the Armenian Courts of Appeal and Cassation. But his disagreement, based on a different interpretation of the facts, is not a sufficient reason to review the factual and legal assessment of the case performed by the Armenian courts, as long as such assessment (as in the present case) is reasonable and based on the existing law. Taking into account the fact that the Armenian courts complied with all the procedural guarantees of a due process of law (a fact that the applicant does not deny), Article 6 § 1 of the Convention does not provide for our Court to deal with errors of fact or law allegedly committed by the national courts in reaching their conclusions.

JOINT DISSENTING OPINION OF JUDGES ZIEMELE AND TSOTSORIA

1. We voted to find a violation of Article 6 and against the inadmissibility of the remainder of the application, and against dismissal of the applicant’s claim for just satisfaction. We are able to follow the majority’s reasoning in finding a violation of Article 6 in this case, but consider that this does not entirely cover the problem raised by the case as a whole.

2. In the first place, the applicant had in his favour a final judgment of the District Court of Yerevan from 1988, recognising his right to a number of lump sum payments and also to monthly payments from the Meat Factory arising from the work-related injury sustained by him there which was the basis for his subsequent disability. The factory had made payments until 1992. In 1997 the factory was declared bankrupt and the debtor company was released from the payment of any debts, in accordance with section 34 of the Bankruptcy Act. We note that the Government Decree of 1992 provided that in the event of a company’s liquidation, the legal successor is to pay the debts; where there is no successor, the State social authorities are to take over payments. This Decree was in force until August 2004. Furthermore, Armenia and Moldova were parties to the Moscow Convention, Article 7 of which provides: “In the event of liquidation of the enterprise responsible for damage caused to an employee and in the absence of a legal successor, the Contracting Party on whose territory the enterprise was liquidated shall guarantee compensation for damage to such employees pursuant to domestic law.”

3. In 2001 the applicant, acting through the Moldovan Ministry of Justice and with reference to the Moscow Convention, requested the Armenian authorities to enforce the 1988 judgment. Following an exchange of correspondence, in 2002 the Armenian Ministry of Justice informed the Moldovan Ministry of Justice about the Meat Factory’s bankruptcy and the absence of a legal successor. It should be noted that this reply was sent to Moldova at a time when the 1992 Government Order was still in force. After several years of correspondence between the applicant and various Armenian authorities, in 2006 the Armenian Ministry of Labour announced that the applicant could have applied to the social authorities in order to receive funds from the State budget, as provided for in the 1992 Government Order. Since he had failed to do so, he should now complain about his situation to the domestic courts.

4. The Chamber considers that since the bankruptcy proceedings were terminated in 1997 the applicant’s complaint about non-enforcement of the 1988 judgment falls outside the Court’s jurisdiction ratione temporis . We disagree with this assessment. Non-enforcement of a judgment is a continuous situation unless the judgment is annulled or otherwise changed by relevant courts (see Sabin Popescu v. Romania , no. 48102/99, § 54, 2 March 2004). It appears that this is not the case here, and nor can the decision on the company’s bankruptcy be considered such an annulment, since Armenia was under an obligation, both in terms of domestic law and the Moscow Convention, to ensure that damages incurred on its territory to persons employed therein were compensated. The Chamber makes a doubtful distinction between liquidation and bankruptcy in this case. Even assuming that such a distinction could be made, the object and purpose of the Moscow Convention should have been assessed properly by the Armenian authorities. In 2001 the Armenian Ministry of Justice should already have known to which authority the applicant’s request was to be forwarded, or, if they considered that the applicant should have brought further proceedings before the Armenian courts, they should have informed him accordingly. It was only in 2006 that the Armenian authorities stated that it was too late for the applicant to receive funds from the social authorities. This reply does not make much sense, as the applicant had been in touch with the authorities from 2001.

5. The Chamber is correct in noting in paragraph 57 that we cannot determine the proper status of the liquidation or bankruptcy proceedings in respect of the Factory. At the same time, the Court has always assessed the actions of the State in non-enforcement proceedings, including the obligation to have proper and clear legislation enabling the enforcement of judgments. We consider that the execution of the 1988 judgment was highly problematic and the difficulties were imputable to Armenia. A major issue also arises concerning Armenia’s compliance with its international obligations under the Moscow Convention. It would appear that the applicant’s problems persist, and that the proceedings leading to the adoption of the 2003 judgment have not helped the matter, if indeed they are relevant at all to the 1988 judgment in respect of which the Chamber has found a violation of Article 6; this remains unclear. For all these reasons we consider that there was also a violation of Article 6 with regard to non-execution of the 1988 judgment.