PARTLY CONCURRING OPINION OF JUDGE PAVLOVSCHI

In the case under consideration I had no difficulty in finding a violation of Article 6 § 1 of the Convention, as the time taken to enforce the final judicial decision – about five years – was truly excessive.

As far as a violation of Article 1 of Protocol No. 1 to the Convention is concerned, the situation is less clear, and it was only after a great deal of hesitation that I decided to go along with the majority ' s position.

As a matter of principle, State-owned companies cannot be held liable for each other ' s debts, just as a State cannot be held liable for the debt of State-owned companies, which act independently of the State on the basis of private law. Of course there are some exceptions, for instance, in situations where a State assumes a State ‑ owned company ' s debts, or where a State-owned company exercises State power or acts on behalf of the State, and so forth.

In the case before us it is of great importance to examine whether or not one or more of these exceptions are applicable to the applicant ' s situation and, more precisely, whether or not the Moldovan Government – in the person of the State enterprise “ Moldtranselectro ” – assumed responsibility for all the debts of the energy sector in Moldova .

In my view, there are two possible approaches to the problem of Article 1 of Protocol No. 1 in this case.

The first approach is a theoretical, legal one, based on law and the second approach is a formal approach based on the position of the national judicial authorities and representatives of the Moldovan Government.

If we take the legal approach, we will note the following. According to the judgment delivered by the Chişinău Economic Court on 26 April 2002 “ ... it is established that, in accordance with Article 6 of Law no. 336 of 1 April 1999, both the debts accumulated by [the energy sector] and the debts owed [to it] were transferred to SC “ Moldtranselectro ”, a fact confirmed by the verification act of 8 February 2000 ... ” (See the Economic Court ' s judgment) [1] .

Hence the Economic Court , in deciding to allow the applicant ' s claims and to oblige the State-owned company “ Moldtranselectro ” to pay the debts of SA Red Centru , made reference to Article 6 of Law no. 336 of 1 April 1999 as a legal basis for its decision.

We need to examine the exact terms of Article 6 of Law no. 336.

If we study the text of this law we will find the following provisions: “ ... The Government 1) shall become the legal successor: b) in the person of

the State Enterprise “ Moldtranselectro ” – of credit indebtedness [ datorii creditoriale ] of the electricity sector enterprises undergoing privatisation more than 60 days overdue as of the date of signing contracts for the sale of the majority stake in their shares ... ” (see paragraph 13 of the present judgment).

So Article 6 of Law no. 336 of 1 April 1999, to which reference is made, says nothing about debts accumulated by the energy sector as mentioned in the Economic Court judgment.

In its judgment the Economic Court did not mention whether SA Red Centru ' s debts vis-à-vis Cooperativa Agricola Slobozia-Hanesei were “debts accumulated by” it wit hin the meaning of Law no. 336.

Here a short remark is called for. The terms “debts accumulated by” and “debts owed to” are book-keeping terms which, in my opinion, describe two absolutely different situations. In relation to the case before us, and in a very general sense, this means the following – the “debts accumulated by” “ Moldtranselectro ” are the debts that this company should pay to others, whereas the “debts owed to it” are the debts that this company should be paid by ot hers. That is the difference.

Unfortunately, the Economic Court failed to make any distinction between these two notions and made “ Moldtranselectro ” responsible for debts which, in my opinion, are not covered by Article 6 of Law no. 336 of 1 April 1999. At the very least, it is not possible for me to find a clear answer to this question without the nature of these debts being determined. This, as I have mentioned, the Economic Court failed to do.

Moreover, even if we take the approach favoured by the Economic Court, we need to determine whether SA Red Centru ' s debts vis-à-vis the applicant were more than 60 days old since, according to the same law (Article 1) “ ... [Red Centru ] ... shall be privatised without their debts older than 60 days owed to or claimable against third parties ... ” (see paragraph 13 of the present judgment).

If the debts were “older than 60 days” they should have been extinguished; if they were not “older than 60 days” they should have been paid. I regret to mention it, but the Economic Court judgment does not provide us with any answer to this question. Neither did the Government pay any attention to this issue.

So, if we take a legal approach to the problem before us, we must acknowledge that the State-owned company “ Moldtranselectro ” cannot be held liable for any of Red Centru ' s debts, for two main reasons:

1. “ Moldtranselectro ” succeeded to “debts owed to” the energy sector and not “debts accumulated by” it.

2. The applicant never claimed, nor did the Economic Court ever establish, that Red Centru ' s debts vis-à-vis Cooperativa Agricola Slobozia-Hanesei were not, in fact, “older than 60 days”.

International judicial decision-making is a very difficult and delicate process. There are many different factors that influence international judges in their decision ‑ making.

In my view, the most difficult problem which a judge needs to solve is the problem of using his or her legal knowledge, experience and understanding of the national legal system in a situation where the information submitted by a party or parties runs counter to the judge ' s own understanding of the case.

To come back to the present case: in principle, in such a situation, I should have voted against finding a violation of Article 1 of Protocol No. 1 to the Convention. However, an international judge cannot act on the basis of his or her knowledge alone and, to some extent, is bound by the position submitted by the parties to the proceedings.

Since in the present case the representatives of the Moldovan Government failed to raise all the questions which I have mentioned above and since the Economic Court failed to have them analysed either, I find myself in a situation where I have no other option than to adopt a formal approach and vote together with the majority in finding, in the present case, a violation of Article 1 of Protocol No.1 to the Convention.

[1] The original text of the judgment reads as follows – “…s-a constatat , ca conform Legii RM nr.336 din 1.04.99, art.6, datoriile atat debitoriale , cat si creditoriale , au fost transmise I.S. “ Moldtranselectro ”…”