PARTLY DISSENTING OPINION OF JUDGE V AJIĆ

In numerous cases against Russia the Court has previously held that a failing over a long period of time to comply with an enforceable judgment may lead to finding of a violation of both Article 6 and Article 1 of Protocol No. 1 to the Convention. The same approach obtains in the present case.

In the present case, however, the majority has decided to adopt a novel technique. This consists in examining separately the non-enforcement of the domestic judgment and the overall length of the proceedings. This results in a duplication of part of the violation under Article 6 and a further duplication of the non-pecuniary damage under Article 41 of the Convention – in both instances by calculating twice the same period of non-enforcement of the judgment.

I disagree with such an approach on the grounds of consistency in the Court ’ s case-law and of clarity in the judgment itself. It is the Court ’ s long-established case-law that the execution of a judgment given by a court is to be regarded as an integral part of the “trial” for the purposes of Article 6 ( see Hornsby v. Greece , 19 March 1997, § 40 , Reports of Judgments and Decisions 1997 ‑ II ).

The period during which the authorities are under an obligation to enforce a judgment creating or confirming a property right may thus give rise to both a violation of Article 6 and of Article 1 of Protocol No. 1. In the present case, the Court has found a violation on these grounds, taking into account the lengthy non-enforcement (the “second part” of the “trial”).

Subsequently the Court proceeded also to examine the global length of the proceedings, that is, the entire “trial” (four years and four months for two levels of jurisdiction, see paragraph 32 of the judgment). In order to do so it had to take into account not only the “judicial stage” of the proceedings but also - and for a second time - the period of non-enforcement.

In my opinion, it was not necessary to find two separate violations of the reasonable-time requirement in this case. It would have been sufficient to concentrate on only one period, namely that during which the delays were more significant. It was for the Court to determine which period that was. Such a solution would have been in line with its reasoning in other cases (see, for example, Lukyanchenko v. Ukraine , no. 17327/02, §§ 33-34 , 15 May 2008; Androsov v . Russia , no. 63973/00, §§ 73-76, 6 October 2005 ).

At the same time, the approach outlined above would also have made it easier to read the judgment. Given the difficulties in calculating the periods to be taken into account in Russian length of proceedings cases (paragraph 30 of the judgment), and the duplication of the non-enforcement period (paragraphs 21 and 31 of the judgment), as it currently stands the judgment may appear overly complicated.

For the reasons set out above I am also unable to agree with the approach taken in awarding non-pecuniary damage in this case, as it simply adds together the two amounts normally awarded in such cases, namely the award in respect of the total length of the proceedings (four years) and that in respect of the non-enforcement period (14 months).