CONCURRING OPINION OF JUDGE MALINVERNI

(Translation)

In the present case I joined the rest of my colleagues in finding a violation of Article 1 of Protocol No. 1. However, I have considerable difficulty in subscribing to the reasoning which led the Court to that conclusion.

In paragraph 46 of the judgment, the Court points out that the present case could be considered either in terms of interference with the applicant ' s right to the peaceful enjoyment of his possessions or in terms of the State ' s positive obligations, given that “ the boundaries between the State ' s positive and negative obligations under Article 1 of Protocol No. 1 do not lend themselves to precise definition ”.

One can only agree with this statement. However, I am of the view that, when faced with a choice between these two approaches, the Court must opt for whichever it considers more appropriate, and then adhere to its choice.

The judgment does not do this, however. In paragraph 47 already, it states that “[the] situation may well be examined in terms of a hindrance to the effective exercise of the right protected by Article 1 of Protocol No. 1 or in terms of a failure to secure the implementation of that right ”.

Paragraphs 48 to 50 favour the interference approach, as they examine whether the conditions of lawfulness, pursuance of a legitimate aim and proportionality were met.

Paragraph 51, meanwhile, sees the Court revert to the positive obligations approach, stating that “[ i ] n the context of the present case, those principles required the Russian State to fulfil in good time, in an appropriate and consistent manner, the legislative promises it had made in respect of claims arising out of the 1982 bonds ”. The s ame applies to paragraphs 52 to 54.

I find this shifting between one approach and another unsatisfactory. In my view, the present case should have been examined solely in terms of the State ' s positive obligation to enact legislation. As the judgment itself states, “ although the debt arising out of the bonds had been recognised by the Russian State in a series of legislative acts ”, it was “the absence of implementing regulations” which made “redemption of the bonds impossible” (paragraph 45).

The Russian Supreme Court, moreover, did not err in refusing to examine the applicant ' s claim on the ground that “[b] y virtue of the constitutional principle of separation of powers, the court may not, in civil proceedings, require the Government of the Russian Federation to enact a specific legal act ... ” (paragraph 12).