DISSENTING OPINION OF JUDGE PAVLOVSCHI

To my great regret, I am not able to subscribe to the conclusions reached by the majority in the present case.

I would like to declare that I have dee p sympathy for the applicant Mr Popov, who had to suffer considerably along with many other people, as a result of illegalities committed by the totalitarian Stalinist regime. I do have respect for his quite advanced age. But these feelings of sympathy and respect must not predominate over questions of law. Nor may they disburden his legal representative from submitting evidence.

1. AS TO ADMISSIBILITY

Regarding the admissibility of the case , I am not convinced by the reasoning given by the majority for rejecting the Government ' s preliminary objections. In my view, it is not a good way of proceeding to reject the High Contracting Party ' s position without having verified the arguments adduced.

Meanwhile, the position taken by the Moldova n Government see ms to me not as groundless as is made out to be in the judgment. Here, I am speaking about the abuses of the right of petition clearly committed by the applicant ' s representative. I leave it open whether or not these abuses were so serious as to render the application inadmissible (although in my opinion they were), because their gravity should have been a matter for consideration by the Chamber. The Chamber should at least have acknowledged and condemned them, even if it did not declare the application inadmissible.

The failure to act in this way may create a false impression that the majority tacitly support the insulting and offensive language used by the applicant ' s representative against the respondent Government and also accept the representative ' s submission of false and misleading information.

Let me demonstrate some facts of the case which, to my mind, prove the above statement.

In the second paragraph of his letter dated 1 September 2004 the applicant ' s representative writes:

“ ...at the moment when the application by Mr Popov was at a sufficiently advanced stage before the Court, when the Government were obliged to inform the Court about the possibility of a friendly settlement of the case, the Government initiated the revision proceedings in the case.”

In paragraph 6 of the same letter he also writes:

“ ... during a period of three months when there was every possibility of execution of the final decision, the Government attempted some dubious negotiations with the applicant, making a very clear proposal to the applicant to withdraw his application to the Court, failing which revision proceedings would be initiated.”

And in the next paragraph of the letter the applicant ' s representative concludes:

“ ... The applicant refused to withdraw his application to the Court, and as a result of this fact the revision proceedings were initiated . ”

In his letter of 4 June 2004 the applicant ' s representative writes:

“ ...the Government have not resolved the case by way of a friendly settlement but have proceeded to play a very dirty game .”

Later on, while describing revi sion proceedings, the applicant ' s lawyer again calls them “ ... a dirty game of the Government”.

In my view, the statement made by the applicant ' s representative that “ ...the Government initiated revision proceedings in the case. ” is knowingly untrue, in other words intentionally false.

The false character of this information, officially submitted to the European Court of Human Rights by the applicant ' s representative is clear from the evidence before us.

This evidence shows that the representative knew very well that it was not the Government that had initiated revision proceedings, but those persons who had lost ownership of three disputed apartments and who had run a real risk of being evicted from these apartments - Leonid Muntean , Nina Muntean , Grego re Demciuc and Tatiana Demciuc .

The reality of the risk of these persons being evicted is confirmed by the eviction notices issued by the authorities in their names, which may be found in our case file.

The fact that the representative knew for sure that the Government were not involved in the revision procedure follows from the representative ' s own letter, sent to the Court on 4 June 2004, in which, speaking about the quashing of the final decision, he wrote:

“ ... the decision was issued on the basis of an application for revision lodged by the persons living in the immovable property belonging to my client. ”

Quite contrary to these words of his, in the above-mentioned letter dated 1 September 2004 the applican t ' s lawyer made the following accusation against the Moldova n Government:

“ ... the applicant refused to withdraw his application to the Court (i.e. the ECHR), and as a result of this fact the revision proceedings were initiated. ”

This precise assertion is, in my view, intentionally false because of the following reasons.

In his above-mentioned letter dated 4 June 2004 the applicant ' s representative made the following accusations against the Moldova n Government:

“ On 20 May 2004 the representative of Mr Popov, Ivan Turceac , in discussion with the Agent of the Moldova n Government before the ECHR, was asked to sign an agreement by which the Government undertook to allow Mr Popov access to his property, but the ap plicant was to withdraw his application to the ECHR. ... Mr Popov ' s representative had refused to sign any such agreement. ... after 6 days , on 26 May 2004 , the Court of Appeal delivered a decision quashing the decision of 1997. ”

From this letter it clearly follows that the discussion between the Agent and Mr I. Turceac took place on 20 May 2000 . At the same time, in a copy of the decision delivered by the Court of Appeal on 26 May 2004 and submitted to the Court, it is indicated that the revision proceedings were initiated on the basis of the applic ations lodged by G. Demciuc , T. Demciuc , N. Muntean and L. Muntean on 14 April 2004 .

So it is impossible that the revision proceedings were initiated after the refusal by the applicant ' s representative to sign a friendly-settlement agreement, because those proceedings had started on 14 April 2004, while the alleged discussion between the representative of the applicant and the representative of the Government took place (if at all) on 20 May 2004, that is chronologically more than a month later.

Only one conclusion can follow from all these facts: the in formation sent by the applicant ' s representative to the ECHR in which he tried to mislead the Court by alleging that the revision proceedings had been initiated as a form of pressure by the Government because of the refusal by the applicant ' s representative to sign an agreement is intentionally false.

All these manipulations of the facts and legal material, which are clearly disparaging and defamatory to the Moldova n Government, distorted the real situation. Unfortunately, despite that, they have remained without any consideration and even without any reflection in the judgment.

And this is despite the Moldova n Government ' s direct and clear position on this point. Let me quote a part of the Government ' s observations.

“... We therefore consider that the applicant ' s representative is making violent accusations against the national authorities. The Government regard his accusations as offensive. Furthermore, in the case-law of the Commission, applications where the applicant had mad e defamatory statements about the Government were rejected as being an abuse of the right of petition. For that reason, we would ask the Court to take into account this information, which provides the Court with every reason to declare the application inadmissible, in line with the decision of 30 September 1968 in the similar case of X and Z v. the Federal Republic of Germany . ”

According to the Court ' s case-law, an application can be rejected on the ground that it constitutes an abuse of the right of petition. This may be the case where the terms used in relation to the respondent Government are regarded as ' offensive ' , ' defamatory ' or ' excessive ' ( Rafael v. Austria , no. 2424/65, Commission decision of 24 May 1966, Yearbook 9, p. 427).

An application will also be rejected as being an abuse of the right of petition if it appears either that the applicant ' s claims are knowingly based on false allegations or that he has intentionally provided erroneous information with the aim of misleading the Court. The same applies where he is able to produce only specious arguments.”

In my view this position is not totally irrelevant.

In its decision of 24 May 1966 , in the case of Rafael v. Austria (application no. 2424/65) , the Commissio n, speaking about the applicant ' s allegations directed at the Austrian Government and their representatives, stated that it considered them “ clearly defamatory in regard to the Austrian Government ” and further observed “ the Applicant ' s remarks are directed against persons who represent the Government in the present proceedings and who should enjoy a special protection against defamatory statements concerning the manner in which they exercise these functions.” The Commission concluded that “the Applicant ha s abused the right of petition”.

Whether or not in the present case the accusa tions levelled by the applicant ' s representative against the representatives of the Moldova n Government are based on real facts or merely on groundless inventions should have been examined by t he Court according to the rule “ Verba fortius accipientur contra proferentum ” (words are to be taken most strongly against him who uses them). But that was not the case.

I fail to understand why the representatives of the Moldova n Government should enjoy a lesser degree of protection tha n the representatives, for instance, of the Austrian Government as referred to in the abov e-mentioned decision.

Unfortunately the judgment does not provide us with any answer to this question.

Instead, the majority have proposed to take another and, in my view, incorrect approach, leaving this limb unexamined. In paragraph 48 of the judgment it is stated:

“ ...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 t o pursue the issue of its own motion and thus leaves open the question whether or not the allegati on of coercion is well founded.”

Unfortunately, I c annot subscribe to the majority ' s conclusion that the applicant has not made any complaint that he was hindered in the presentation of his complaint. The applicant did submit such a complaint, mentioning the exertion of pressure on each and every occasion.

In paragraph 46 of the judgment it is stated quite precisely enough:

“ 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 withdra wing his application from 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. According to the applicant, he refused to sign the agreement and consequently on 26 May 2004 the final judgment was quashed. After the proceedings, on 26 May 2004 , the Government Agent allegedly told the applicant that had he consented to sign the agreement, the revision proceedings and the subsequent quashing and re-opening would not have taken place. The applicant expressed his concern about the alleged pressur e put on him by the Government.”

W hat is this if not a complaint?

It is true that the applicant did not attribute any legal characterisation to his allegations and that he did not mention expressly Article 34, but in accordance with the Court ' s jurisdiction he was not under an obligation to do so. It is a court ' s task to attribute any legal characterisation which it feels to be proper to the facts submitted to it.

In its judgment in the case of Foti and Others v. Italy , judgment of 10 December 1982 , S eries A no 56 , pp . 15-16 , § 44 , the Court stated:

“ The institutions set up under the Convention nonetheless do have juris diction to review in the light of the entirety of the Convention ' s requirements circumstances complained of by an applicant. In the performance of their task, the Convention institutions are, notably, free t o attribute to the facts of the case, as found to be established on the evidence before them, a characterisation in law different from that given by the applicant or, if need be, to view the facts in a different manner; furthermore, they have to take account not only of the original application but also of the additional documents intended to complete the latter (see, for example, the above-mentioned Guzzardi judgment, Series A no. 39, pp. 22-23, §§ 62-63, and the Ringeisen judgment of 16 July 1971, Series A no. 13, pp. 40-41, § 98, as compared with p. 34, § 79, and pp. 39-40, §§ 96-97).”

Unfortunately this case-law has not been taken into consideration. This fact led to a situation where extremely important and serious allegations were not given any consideration. Moreover, all non-verified mate rial submitted by the applicant ' s lawyer was used in the judgment in a way which created an illusion of the Government ' s possible involvement in the revision proceedings as a form of illegal pressure on the applicant, despite the fact that no evidence had been submitted b y the applicant to that effect.

It is worth mentioning also that in the Republic of Moldova illegal interference with the administration of justice is a criminal offence provided for by Article 303 of the Criminal Code. Such an interference, when committed by a person using his or her official position , is considered by the legislature as a crime committed with aggravating circumstances, punishable by 2 and 5 years ' imprisonment. So, in alleging that the representatives of the Government have interfered with the examination by the Court of Appeal of the applications lodged by the persons listed above, the applicant ' s representative is in practical terms, accusing them of carrying out a criminal activity and having committed a criminal act provided for by Article 303 § 3 of the Criminal Code.

In its decision of 18 May 2004 in the case of Řehák v. the Czech Republic ( Application No. 67208/01) the Court declared the application inadmissible on the grounds of the abuse of the right of petition by the applicant. This abuse , in the view of the Court, consisted of allegations of criminal activity on the part of certain representatives of the Registry and of their membership of the security services. The Court stated:

“ ... the applicant ' s allegations are intolerable, exceeding the bounds of normal criticism, albeit misplaced, and amount to contempt of court. Such conduct by the applicant – even supposing that his original application would not be deemed manifestly ill-founded – is contrary to the purpose of the right of individual petition ... ”

I perfectly understand the position taken by the Court in the above case, namely that groundless allega tions of criminal activity are “intolerable” . What I cannot understand is why such kind of allegations should be tolerable when they are made against certain representatives of a High Contracting Party.

In my view, in this kind of situation the Court, operating on the basis of “ the facts of the case, as found to be established on the evidence before [it] ” , should ask for evidence f rom those who make allegations.

One of the maxims of law say s: “ Ei incumbit probatio qui dicit , non qui nega ” . In English this could be translated as “ The burden of proof lies upon him who affirms, not him who denies”.

And if no evidence was submitted, the Chamber should express the opinion that the relevant part of the application is ill - founded (unless it declares the application inadmissible as being an abuse of the right of petition) and should not leave the question open to speculation as to whether the representatives of the Government have or have not used means of illegal constraint in relation to the applicant or illegally intervened in the administration of justice.

In his letters addre ssed to the Court the applicant ' s lawyer, acting as a representative of the Helsinki Committee (see paragraph 2 of the judgment), referring to revision proceedings, calls them, as I have quoted, “ dirty games of the Government” . In my view , this expression is clearly offensive and defamatory. It is not clear in what way, in view of the lawyer, the Government could have precluded Leonid Muntean Nina Muntean , Gregore Demciuc and Tatiana Demciuc , who were running the real risk of being evicted from their homes, from lodging an application initiating revision proceedings.

A person claiming to be a lawyer should know that a Government may not in any way limit its citizens ' access to a court. Coming back to the present case, the Moldova n Government should not in any way prevent the above-mentioned persons either from having access to a court, or from using their rights provided for by the law.

There is one more issue I would like to raise here. In accordance with Rule 62 § 2 of the Rules of Court, all friendly-settlement negotiations are confidential:

“ ... In accordance with Article 38 § 2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties ' arguments in th e contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings...”

In breach of the above provisions the applicant ' s representative has disclosed the friendly settlement negotiations, making them public. Acting in this way, in practical terms he has waived his right to rely in future disputes on the “confidentiality of negotiations” clause and has opened the way for the representatives of the Government to protect their dignity by means of libel and defamation proceedings before the national judici al authorities. This sort of un professional behaviour has created a possible danger of confidential proceedings becoming a matter for consideration by the Moldova n judicial authorities, which in my opinion is inadmissible because of the possible conflict between national and international courts.

On several occasions the European Commission of Human Rights examined the issue of the breach of the confidentiality clause by the applicants . For instance, in the case of Drozd v. Poland ( Application No. 25403/94, decision of 5 March 1996) , the Commission stated: “ ... the applicant made public confidential information ... ”, “ ... the applicant must have been aware of the confidentiality of the proceedings as he had been informed thereof ... ” “ ... the parties are obliged to respect the confidentiality of its proceedings ... ” and “ ... the applicant ' s conduct constitutes a serious breach of confidentiality ... ”. In the light of all these findings the Commission decided to strike the application out of its list of cases.

The above-mentioned decision leads me to the conclusion that the proposal by the Moldova n Government to take a similar approach in the present case is not, in my view, groundless and deserved more careful examination.

I am really very surprised and sorry to note that a representative of such a respectable non-governmental organisation (NGO) as the Helsinki Committee gives the impression of a person lacking in elementary legal and professional ethics. In my view, this kind of behaviour should call for some sort of reaction from the Court. As a matter of fact, the applicant ' s representa tive is not a practising lawyer, he is just a jurist working for the above NGO. His participation in the case was authorised by the Court in accordance with Rule 36 §4 (a) of the Rules of Court (see paragraph 5 of the judgment). My personal conclusion is the following. The Court should be much more vigilant about approving the participation of such persons in proceedings before it , in order to avoid getting into somewhat ambiguous situation s like the present one.

There is one more thing which deserves to be mentioned. In paragraph 44 of the judgment reference is made to the applicant ' s intention to lodge a new complaint, and I quote:

“ ...he also expressed his intention to introduce a new application in r egard of the breach of the principle of legal certainty due to the q uashing of the final judgment.”

At the same time, in the next paragraph (45) t he Court now states that the re opening of the proceedings is the subject of a new complaint, and I quote again:

“ ... the Court of Appeal merely reopened the proceedings and that reopening is now the subject of a new complaint which the Court will exam ine in a separate application.”

The information quoted above about new complaints is irrelevant to the case concerning non-enforcement of a final judicial decision. There are two possible ways of proceeding in such situations: either to communicate a new complaint if it really exists, or not to mention it at all in a judgment in which a wholly different matter is under consideration and which has nothing to do with “ a new complaint which the Court will exam ine in a separate application”.

In paragraph 49 the Court observes: “ ... an application would not normally be rejected as abusive under Article 35 § 3 of the Conve ntion on the basis that it was ' offensive ' or ' defamatory ' unless it was knowingly based on untrue facts” . Reference is made to Varbanov v. Bulgaria , no. 31365/96, § 36, ECHR 2000 ‑ X and Řehák v. the Czech Republic (cited above).

Let us take first the Varbanov v. Bulgaria judgment. I cannot agree with this reference and the selected quotation. In the present judgment only part of paragraph 36 of the Varbanov judgment has been quoted. The second part, wh ere the Court speaks about the “ knowingly based on untrue facts ” criterion, con tains the following conclusion:

“ ...The Court does not consider that such is the case, the applicant ' s complaints that his rights under the Convention were violated being based on real facts some of which are , indeed, undisputed by the Government”.

This is not the case in our situation, where the Government strongly denies any involvement in the alleged acts, unlike in the Varbanov case, where the conclusion was based on facts “ ... undisputed by the Government ... ” . Here a question arises as to who should prove what in the proceedings before this Court. If we accept the above-mentioned legal principle “ Ei incumbit probatio qui dicit , non qui negat ” , it becomes clear that the burden of proof rests with the applicant. In my opinion, it is the applicant ' s task to prove that his allegations are based on rea l facts, and not the Government ' s task to prove that they are not guilty. It goes without saying that neither the applicant nor his representative have submitted any piece of evidence to substantiate their words.

In the second case ( Řehák v. Czech Republic ), as I have already mentioned, the Court declared the application inadmissible because of the applicant ' s unfounded allegations of illegal activity against certain representatives of the Court.

So , both of these quotations should be used in favour of declaring the application inadmissible rather than to sup port a finding to the contrary.

2. AS TO THE MERITS

It is true that the Government have failed to submit observations concerning the merits of the case (see paragraph 52 of the judgment), but in any event, regardless of this fact, I believe that the Court should analyse the legal situation under consideration.

In my opinion the present case is clearly distinguishable from the leading case of Prodan v. Moldova , as well as fr om other “non-enforcement” -type cases.

The features distinguishing this case from other non-enforcement-type cases are determined by the fact that the Moldova n judicial authorities quashed the final decision as a result of the revision proceedings. Accordingly there is now no valid final judicial decision in favour of the applicant, meaning that there is nothing to be enforced.

In the Prodan case there was such a valid final judicial decision in favour of the applicant. A nd this is the main difference - a difference of principle.

I very much doubt that the Court could blame th e national authorities for non- enforcement of a legally quashed judicial decision. I very much doubt it that the applicant could be considered to have assets in the form of legal expectations based on a legally quashed judicial decision. And I very much doubt that a quashed judicial decision could give rise to any legal expectation in terms of possessions. On the contrary, we do not know what decision will be taken by the Moldova n judicial authorities following a fresh examination of Mr. Popov ' s claims.

I accept that Mr Popov should be given back his property confiscated by the totalitarian Stalinist regime and there should be no doubt about this. But he should be given back his own property and not that belonging to other people. In my opinion it was and it still is his responsibility to show that the property he is claiming as his own i s his parents ' former property.

In paragraph 45 of th e judgment it is stated that

“ ... there is no final judgment establishing that the house at issue did not belong to the applicant ' s family and tha t the applicant knew about it”.

I agree that there is no such judgment; at the same time, there is no final judgment to the contrary. So the legal situation is not that simple. On the other hand, it seems to me inconceivable that the applicant did not know where his own house was situated. Let me remind you that the applicant had spent about 16 years in that house before his parents were expropriated (see paragraphs 6 and 7 of the judgment). It is difficult to believe that he could not identify the building where he had spent all his childhood. In my mind, if the national judicial authorities decide that the house he is claiming to be his belonged to another person, this would automatically lead to the conclusion that he knowingly submitted false information to the Court.

As far as the revision proceedings are concerned, let me remind you that the Rules of Court contain a similar provision. Rule 80 provides:

“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment...”

I hardly think that our Court, in a case of revision of a judgment in accordance with Rule 80 of the Rules of Court, would have asked the Government of a High Contracting Party to execute a previous judgment and subsequently to also execute the revised judgment, the outcome of which, theoretically speaking, could be diametrically opposed to the outcome of the first judgment.

Quite similar provisions are contained in the Code of Civil Procedure of the Republic of Moldova . Article 449 (c) and Articles 450 (c) provide that a revision request may be lodged by an applicant when new and essential facts or circumstances are discovered that had been unknown and could not have been known to the applicant earlier. Such a request may be lodged within 3 months from the date on which the person concerned has acquired knowledge of these essential circumstances or facts.

Practically the same legal provisions are contained in the legislation of many other States.

If we accept that the revision procedure is a legal, fair and permissible means of changing final judicial decisions in very specific and exceptional circumstances, we are also bound to accept the consequences of this procedure in the present case. But these consequences are the following:

1. As a result of the quashing of the final judicial decision entitling the applicant to acquire property, all the legal co nsequences have ceased to exist; in other words, he has now lost all his entitlements. In practical terms this means that he is no longer entitled to the three apartments in question and , as a result , there is no violation of Article 1 of Protocol No.1 .

2. As a result of the quashing of the final judicial decision there is nothing to be enforced. If there is nothing to be enforced, there can be no violation of Article 6 § 1 of the Convention on account of a failure to enforce a final judicial decision.

3. AS TO THE APPLICATION OF ARTICLE 41 OF THE CONVENTION

Neither can I agree on the amounts awarded in respect of non- pecuniary damage and for costs and expenses.

(a) D amage

First of all, I would like to say that I welcome the Court ' s finding that “the question of the application of Art icle 41 of the Convention in respect of pecuniary damage is not ready for decision” (see § 6 of the operative part of the j udgment). This conclusion is logical and emerges from the fact that the circumstances of the case are not clear enough to make a decision. In practical terms it means that the whole case is not ready for the consideration. In an indirect way the majority has recognised the fact that , without a final decision given by national judicial authorities in Mr. Popov ' s case, it is not possible to rule in the present case either. What I fail to understand is how the same case could be read y for the consideration of non- pecuniary damages and at the same time not be ready for the consideration of pecuniary damage. In my view, in such a situation the entire Article 41 issue should have been postponed pending the final decision of national judicial authorities in the case of Mr. Popov.

Instead, the majority decided to award Mr. Popov EUR 5000 in respect of non- pecuniary damage.

Even if we take as a basis the questionable means of calculation applied in the Prodan case, the amount should be halved, because in the Prodan case the applicant claimed six apartments, while the applicant in the p resent case claimed only three. In the Prodan case there was a valid final judgment in favour of the applicant, while in the present case there is no such judgment.

In the Prodan case the applicant ' s lawyer ' s calculations were based on the following line of reasoning: had the applicant received the apartments, found tenants, rented the apartments out and received payment, she would have deposited money with a bank and earned an interest. In the present case the applicant did not claim any bank interest.

Even leaving the P rodan case to one side , I should say that the amount of award granted in the present case exceeds reasonable limits and is excessively high.

Let me recall that the period of non-execution in the present case was about 6 years and 6 months.

It is generally recognised that the execution of final judicial decisions is part of the “trial”.

In the Hornsby v. Greece case the Court rightly pointed out that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 ( see Hornsby v. Greece judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510, § 40).

Accordingly, it is logical to say that delays in the process of execution of judgments must be regarded, in their turn, as delays in the process of “trial”. And if this is the case, in the present situation, we are bound to follow previous judgments relating to this issue.

When one tries to compare the award granted in the present case with the compensations granted in some other “excessive length of proceedings” type cases, the difference is really striking.

Let me prove my previous conclusion with some examples.

The Krol v. Poland case ( see Król v. Poland , no. 65017/01, 28 September 2 004 ): length of proceedings - 10 years and 5 months. Award granted – EUR 4500.

The Przygodzki v. Poland case ( see Przygodszki v. Poland , no. 65719/01, 5 October 2004 ): length of proceedings- 7 years and 6 months. Award granted – EUR 2500 .

The Nowak v. Poland case ( see Nowak v. Poland , no. 27833/02, 5 October 2004 ): length of proceedings - 7 years and 7 months. Award granted – EUR 3600.

The Wiatrzyk v. Poland case ( see Wiatrzyk v. Poland , no. 52074/99, 26 October 2004 ): length of proceedings - 8 years and 6 months. Award granted EUR 3000.

The Kusmierek v. Poland case ( see Kuśmierek v. Poland , no. 10675/02, 21 September 2004 ): overall length of proceedings - 9 years and 6 months (out of which 8 years and 4 months within the Court ' s jurisdiction). Award granted EUR 4000 .

The Kreuz v. Poland case ( see Kreuz v. Poland (no. 2) , no. 46245/99, 20 July 2004 ): length of proceedings - 9 years and 3 months. Award granted EUR 3600 .

The Pasnicki v. Poland case (see Paśnicki v. Poland , no. 51429/99, 6 May 2003 ): length of proceedings - 12 years and 9 months (out of which 9 years and 9 months within the Court ' s jurisdiction). Award granted EUR 4500.

And this list could be continued.

In my view the approach applied in the above cases should be applied in the “non - enforcement” type cases , too. The reasons that lead me to this conclusion are the following.

When we are speaking about non - pecuniary damages, first of all we are speaking about a form of financial compensation for the suffering incurred by an applicant. I am sure that from the objective point of view for an applicant it makes no difference at which stage of a “trial” – first instance examination, appeal proceedings, cassation proceedings, enforcement proceedings - a state fails to comply with its obligations. What really counts here is the period of time during which an applicant has been awaiting satisfaction of his or her legal demands.

As a matter of principle, awards granted should be similar in the cases where the similar periods of delays were found, perhaps with some adjustments depending on the economic situation and standard of living existing in each and every Member-State.

(b) C osts and Expenses

According to Rule 60 § 2, whe n claiming just satisfaction “ ... Itemised particulars of all claims made, together with the relevant supporting documents or vouchers, shall be submitted, failing which the Chamber may reject the claim in whole or in part ... ”.

On many occasions the Court has stated that only expenses actually incurred should be reimbursed.

In the judgment (see paragraph 83) it is stated that “ ... regard being had to the itemised list submitted by the applicant ... ” the Court awa rds the applicant EUR 1,000.

In the present circumstances of the case when not a word is said about the existence of any documents supporting the claims, as required by rule cited above, I very much doubt that awarding costs and expenses in the present case was in compliance with the Rules of Court.