DISSENTING OPINION OF JUDGE PAVLOVSCHI

It would not be an exaggeration to say that the present case is one of the most difficult and complex cases I have ever been called upon to examine during my time at the European Court of Human Rights.

The complexity of this case derives from the economic character of legal disputes that arose during and were provoked by the period of transition from a state-regulated economy to a free market one that the Republic of Moldova had to go through during a certain phase of its history.

That period was one of radical political, social and economic transformation. It could be called a period of initial accumulation of capital.

That period was marked by a lack of clear legal provisions regulating the economic sphere of activity or responsibility of either the State or private persons.

The beginning of the 1990s in the last century in Moldova , like in many other post-Soviet countries, could also be called the period of struggle between old conservative and new progressive forces, and the case before us presents a very clear illustration of this struggle.

A group of persons tried to create a joint stock company: Hidrotehnica SA, and during the transition from a state-controlled economy to one based on the principles of a free market they were confronted with every kind of surmountable and insurmountable difficulty, including some of a legal and judicial nature.

All these circumstances should have been taken into consideration by the Court because they are really decisive for a proper understanding of the case before us.

Of no less importance is the substantial amount of money that is at stake in the present case. The financial repercussions and consequences of this case make it even more difficult to decide.

Unfortunately, the majority, when adopting its judgment, preferred not to look into the above-mentioned particularities of the substance of the case and limited itself exclusively to the examination of a legal certainty problem from the angle of the Brumarescu v. Romania case – that is, the res judicata nature of a final judicial decision.

The entire thinking behind the present judgment is concentrated in just one single paragraph, namely paragraph 48, which states: “ ... The Court recalls that it has found violations of Article 6 § 1 of the Convention in numerous cases raising issues similar to those in the present case (see, among other authorities, Brumarescu v. Romania [GC], no. 28342/95, §§ 61, ECHR 1999 ‑ VII, and RoÅŸca v. Moldova , no. 6267/02, 22 March 2005, §§ 29). ”

I respectfully disagree with my colleagues that the Court has already found violations of Article 6 § 1 “ ... in numerous cases raising issues similar to those in the present case ... ” In my view, this is simply not so.

Of course, in principle, the majority ’ s approach would have been correct had certain legal conditions been met. However, I regret to say that this was not the case.

I consider that before taking a position in the present case the majority should have looked into the question of what the principle of res judicata means in terms of Convention jurisprudence.

The answer to this question can be found in the judgment in the case of Ryabykh v. Russia (application no. 52854/99, §52, ECHR 2003-IX), which states the following: “ ... Legal certainty presupposes respect for the principle of res judicata ... that is the principle of the finality of judgments. This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case ... ”

In the case of Popov v. Moldova , the Court, referring to the annulment procedure, stated precisely the following: “ ... this procedure, although possible under domestic law, was incompatible with the Convention because it resulted in a litigant ’ s “losing” a favourable judgment. ... ” (see Popov v. Moldova (no.2), application no. 19960/04, §46).

It is clear from the above-mentioned provisions that when the Court speaks of a breach of the principle of res judicata - in the light of its case-law – it is referring to “parties” in the sense used in the Ryabykh judgment or of “litigants” “losing a favourable judgment” in the sense used in the Popov (no.2) judgment.

So, in order to allege any violation of its rights resulting from a breach of the principle of res judicata , the applicant should have shown that in the 1992 proceedings it had the procedural status of a litigant or a party. The applicant failed to do so, however, because it is impossible to prove a fact that simply did not exist.

According to paragraphs 7 and 8 of the present judgment, the 1992 proceedings took place between the Ministry of Industry of Moldova and the joint stock company Hidrotehnica SA. At that time our applicant was a state-owned entity which had no standing in the 1992 proceedings, and, moreover, which, in its current capacity as a privately owned entity simply did not exist.

As is clear from paragraph 1 of the present judgment, Moldovahidromaş SA was registered in Chişinău on 18 September 2003, that is, practically 11 years after the 1992 proceedings had come to an end.

So the fact that the applicant was not a party or a litigant in the 1992 proceedings makes this case different not only from Brumarescu and Rosca, to which reference is made in paragraph 48 of the present judgment, but also from many other Brumarescu -type cases previously examined by the Court.

The legal situation before us presents a novelty which deserves the attention of the Grand Chamber.

The second question which I would like to raise is the following. In this case we are dealing with a very interesting and unusual situation. In the 1992 proceedings, as I have mentioned above, there were two parties: the State in the person of the Ministry of Industry and a newly created joint stock company, Hidrotehnica SA.

All the steps taken by the Moldovan authorities from 1992 to 2003 were directed against the owners of the joint stock company, Hidrotehnica SA, which, in practical terms, cannot be seen as anything other than a manifestation of attempts to protect so-called state interests against the interests of the owners of the joint stock company Hidrotehnica SA. The one and only judicial decision that put an end to the violations of the rights of these persons was the Supreme Court ’ s decision of 24 April 2003 – a decision taken, in the majority ’ s view, in violation of the principle of legal certainty.

I am very sorry to say so, but I cannot share the majority ’ s view on this issue. In my opinion, if a prosecutor belatedly intervenes in a set of proceedings between the State and a joint stock company and tries to protect that joint stock company ’ s lawful interests against the interests of the State, this situation has nothing in common with the Brumarescu situation, where the prosecutor acted in the diametrically opposite way, to the detriment of the applicant, who, by the way – unlike in our case – did have the procedural status of a “party”.

I find it very difficult to agree that the protection of private owners ’ legal interests against breaches committed by State authorities can be regarded as a violation of the principle of legal certainty.

Of course, it would have been better had the Prosecutor General intervened earlier, but it should never be too late to protect legitimate interests of private owners against abusive acts by the State. And in this sense – and for our situation – I find the saying “better late then never” to be very apt.

In theory, I would agree that the belated restoration of the Hidrotehnica SA owners ’ rights might, to some extent, have affected the rights of the current owners of Moldovahidromaş SA. This is particularly true if one takes into consideration that in the meantime a state-owned entity, Moldovahidromaş, has also become a joint stock company. But I would not like to speculate on this issue and prefer to stop here.

We are now dealing with the competing interests of two joint stock companies: Hidrotehnica SA and MoldovahidromaÅŸ SA. But this is a slightly different issue, which, again, has nothing to do with the Brumarescu case-law on which the present judgment is based.

The above reasons explain why I am not able to share the majority ’ s findings in the present case. In my view, in the present case there has been no violation of the applicant ’ s rights in the manner alleged by it and upheld by the majority.