PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

I greatly regret that I am unable to agree with the findings of the majority in the present case. In my view, this case raises many difficult, important and, at the same time, extremely interesting legal issues which, unfortunately, were not considered.

My objections are broadly similar to those expressed in my dissenting opinion in the first Popov v. Moldova case, examined in January 2005 (“Popov (no. 1)”), and I see no reason to repeat them.

However, there are some new issues which I feel it pertinent to analyse in the present opinion.

According to my understanding, each and every case under consideration must be examined by the Court from two basic standpoints: the procedural point of view (procedural part) and the point of view of the substantive law (substantive part).

These approaches exist in practice in a variety of forms and can be found, in one form or another, in many judgments.

My problems start when I try to analyse the present case from the procedural point of view.

If we look at paragraph 1 of the judgment, we find a passage stating that the present case originated in an application against the Republic of Moldova lodged with the Court under Article 34 of the Convention by a Moldova n national, Mr Serghei Popov, on 7 June 2004 .

I regret to say that the case file contains no application lodged by Mr Serghei Popov on 7 June 2004 .

Instead, there is a letter from the applicant ’ s representative Mr Jereghi in the context of Popov (no. 1), in which he describes new developments (the quashing of a final judicial decision by means of a revision procedure), claims that the procedure was initiated by the Government and states the applicant ’ s intention to introduce a separate application concerning the revision procedure ( Toate cele legate de revizuirea cauzei reclamantul intentioneaza sa deplinga Curtii cu o cerere separata ).

In my view, the letter of 7 June 2004 , on the basis of its content, cannot be considered as an application, but simply as a statement of intention to lodge an application. An intention to lodge an application and an application itself are two quite different things.

The first judgment in the case of Popov v. Moldova confirms that the application did not exist at that time, and also the applicant ’ s intention to introduce a new application .

Referring to the letter of 7 June 2004 , the Court states in paragraph 44:

“In his letters of 7 and 24 June 2004 , the applicant stated that the decision of the Court of Appeal of 26 May 2004 did not involve a finding on the merits and that accordingly the court had not found that the house did not belong to him. The Court of

Appeal had merely re-opened the proceedings in view of the newly discovered facts. The applicant alleged that the re-opening of the proceedings was a form of pressure put on him by the Government (see § 46 below) and asked the Court to continue the examination of his complaints relating to the non-enforcement of the final judgment of 5 November 1997 . He also expressed his intention to introduce a new application in regard of the breach of the principle of legal certainty due to the quashing of the final judgment of 5 November 1997 after almost seven years...” (see Popov v. Moldova , judgment of 18 January 2005 , § 44).

The above quotation proves that the Court did not treat the letter of 7 June 2004 as an application but only as an intention to lodge an application.

The same conclusion clearly follows from an analysis of paragraphs 46 and 48 of the Popov (no. 1) judgment.

Referring to the Article 34 issue, the Court states:

“ ... In his letter of 7 June 2004 the applicant stated that on 20 May 2004, the Government Agent had offered him for signature an agreement according to the terms of which he would consent to withdrawing his application to the Court and waiving his right to any compensation in exchange for receiving his house. According to the applicant, the Agent allegedly suggested that in the event of his refusal the Court of Appeal would examine the revision request lodged by the defendants and would quash the final judgment of 1997 and keep the proceedings unresolved for a long time ... ”

The final conclusion of the Court concerning the letter of 7 June 2004 can be found in paragraph 48:

“ ... Nevertheless, this being said, since the applicant has made no complaint under Article 34 of the Convention that he has been hindered in the presentation of his complaint, the Court sees no reason to pursue the issue of its own motion and thus leaves open the question whether or not the allegation of improper coercion is well founded ... ” .

So, if the Court itself did not treat the letter of 7 June 2004 as an application, we must next examine what document can be considered as an official application lodged with the Court as far as Popov (no. 2) is concerned.

Examination of the case file shows that there is only one application annexed to it, which was lodged after the adoption of the judgment in Popov (no. 1), namely the application lodged on 2 January 2005 signed by Mr Vanu Jereghi on behalf of Mr Serghei Popov, and not by Mr Serghei Popov himself.

At the same time, it is worth mentioning that the case file contains a power of attorney issued, presumably, by Mr Serghei Popov post factum in favour of Mr Vanu Jereghi on 18 January 2005 , that is, 16 days later.

In practical terms, this means that at the date on which the above ‑ mentioned application of 2 January 2005 was lodged, Mr Vanu Jereghi was not properly authorised by the applicant to take this step. Moreover, the power of attorney contains some formal mistakes which, in my view, render it invalid. For instance, it states that it is being issued in favour of Mr Vanu Jereghi :

“ ... with a view to his representing me in the proceedings before the European Court of Human Rights ... in relation with the application that I introduced on the basis of Article 34 of the Convention against the Republic of Moldova on 3 January 2005”.

There are two mistakes here. First, no application was introduced by Mr Popov and second, the date of introduction of the application by Mr Jereghi was 2 January and not 3 January 2005 .

Perhaps my approach to the procedural part of cases is a little strict, but I am firmly convinced that, in the sphere of judicial activity, we must ensure that all the formalities have been observed. We should not forget the educational aspect of our decisions and must do everything we can to raise standards and improve accuracy in the preparation of documents submitted to the Court, especially in situations where the applicant has legal representation.

The Government, in their observations, tried to raise this issue. Unfortunately, however, and without any reason being given, their position was ignored and was not even mentioned in the judgment.

I find this ignoring of a party ’ s position – be it a Government or an applicant – absolutely unacceptable. I consider that all the questions raised by both parties, including Governments, should be properly reflected upon and analysed, and an answer given to the questions raised.

This is particularly important in a situation – admittedly not the case here – where the question of which date to accept as the date of lodging an application may potentially influence the calculation of the six-month time-limit.

As far as the substantive part of the judgment is concerned, I agree, in principle, that a problem of “legal certainty” could in theory arise in situations where final judicial decisions are quashed by means of a revision procedure, and where the revision proceedings have taken place in breach of the relevant legal provisions or without convincing legal grounds being given, or have been based on an unfounded or arbitrary extension of time-limits for lodging requests for revision. Moreover, I would have readily supported a finding of a violation of the “principle of legal certainty” in such a situation, subject to certain conditions.

The first of these conditions is the existence of a properly lodged application. Such an application, in my view and as shown above, is missing in the present case. And the second condition is that any violation found should be based on a complaint introduced by the applicant or, alternatively, on an issue raised by the Court of its own motion. In the latter case convincing reasons must be provided.

Since the whole judgment is centred on the issue of a violation of the “principle of legal certainty” it remains to be examined whether the applicant or, more accurately, his representative, ever alleged such a violation.

If we look at the application lodged by Mr Jereghi on 2 January 2005 , we find the following passage relating to Article 6:

“ ... I consider that my right to a fair trial, provided for by Article 6 §1 of the European Convention, has been violated, because Article 6 §1 provides that each person has a right to have his case resolved within a reasonable time. The reopening of a case after more than 6 years does not meet the requirement of a reasonable time. The principle of a fair hearing guaranteed under the Convention has also been violated by the Government as a result of the reopening of the proceedings.”

In my view, it is clear that in the first part of his complaint the applicant ’ s representative relied on the “unreasonable length of proceedings” argument. As far as the second part is concerned, Mr Jereghi failed to substantiate his complaint, which, in practical terms, made it impossible for the Court to understand under what particular aspect of Article 6 §1 he was complaining.

In his memorial sent to the Court, the applicant ’ s representative complained as follows:

“ ... The right to an equitable law trial, stipulated by the a r t. 6 of the European Convention, because- the disposition of the art.6 p.1 of the European Convention stipulates that every person has the right to resolving his case in a reasonable term, that is why the revision over seven years is not included in the notion of the reasonable term, the judgment in equitable way that is guaranteed by the Convention was also violated by the Government by the present revision ... ”.

Hence, neither in his application nor in his memorial did the applicant ’ s representative complain about a violation of the “principle of legal certainty”.

Since he alleged a violation of the principle of the “reasonable length of proceedings”, his application should have been examined from that angle. Unfortunately, no examination whatsoever was made of this complaint from the applicant ’ s representative, nor was any decision taken on it; it was as though it did not exist.

I find it unacceptable not to examine the applicant ’ s allegation of a violation of the principle of the “reasonable length of proceedings”. However, equally unacceptable is the examination of a breach of the “principle of legal certainty” when the applicant had not raised this question and when the Court had not decided to raise it of its own motion. However, I repeat that I entirely agree that there could in theory be a problem in this respect.

Since neither the applicant nor the Court, acting of its own motion , raised the question of a breach of the “principle of legal certainty”, I find Article 6 § 1, in the form examined by the Chamber from this angle, inapplicable to the present case. Accordingly, Article 1 of Protocol No. 1 should also not apply.

This is where I respectfully disagree with my fellow Judges .