DISSENTING OPINION OF JUDGE MALINVERNI

(Translation)

I am unable to join the conclusion reached by my colleagues that there has not been a violation of the Convention in this case.

Admittedly, as correctly stated in the judgment, “ since the building enterprise had never completed the construction of the house, there was ... no way for the bailiffs or the Town Authority to provide the applicant with the flat” (see paragraph 14).

However, I would like to point out that the building enterprise that had undertaken to build an apartment block was a municipal enterprise and therefore a public one (“enterprise of the K ropotkin Town Autho rity” – see paragraph 5). That public enterprise had entered into a contractual undertaking with the applicant ' s military unit. Failure to execute that contract had the effect of directly engaging the responsibility of the State, which could and should have taken measures to ensure that the contract was honoured.

Frustrated with the delay, the applicant finally asked the court to make him a lump-sum payment of 250,000 Russian roubles in lieu of the flat.

Surprisingly, the court, which on 24 November 1997 had given judgment ordering the Town Authority to provide the applicant with a flat, refused to pay him the amount sought because, among other reasons, “a lump-sum payment would have prejudiced other public expenditure ” (see paragraph 8).

I find this reason entirely unacceptable. In my opinion, the delay by the public enterprise in honouring the contract and the refusal by the court, without giving valid reasons, to convert the municipality ' s initial obligation into payment of a sum of money had the effect of engaging the responsibility of the public authorities.