PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

Like my fellow Judges I have voted in the present case in favour of finding a violation of Article 6 § 1.

Indeed, the quashing of the applicant ’ s final acquittal presents - if I may put it this way - a “classic” violation of the principle of legal certainty, which can be considered one of the most important elements of the notion of a fair trial.

At the same time I decided to vote against making any award for non- pecuniary damage in this case and now, in order to avoid any misinterpretation of my position, I would like to explain my reasons for that decision.

It has been a long-held view of this Court that the best kind of redress could be considered to be “ restitutio in integrum ”, and if this type of restitution is not possible for one reason or another the Court should award compensation.

The case before us raises the following question - what kind of redress can be considered “ restitutio in integrum ”? In my view, such redress could consist in the total removal of the consequences of the quashing of the judgment of 30 October 2001. And, in this sense, I am really satisfied with the formula used by the Court in paragraph 29, namely that “...the most appropriate form of redress...would be for the applicant ’ s final acquittal of 30 October 2001 to be confirmed by the authorities and his conviction in breach of the Convention to be erased with effect from that date...”. I cannot but agree that such action would be a real “ restitutio in integrum ” in the applicant ’ s case, and that being so there was no need to award an additional EUR 2,000 for non-pecuniary damage.

Of course, it would have been even better to order, in the operative part of the judgment, the removal of all negative consequences of the applicant ’ s illegal conviction, but, because the applicant failed to ask the Court to rule on this issue it would have been contrary to the Court ’ s practice to do this “ proprio motu ” .

In any event, according to Moldovan legislation (Law No. 1545 of 25 February 1998), once acquitted the applicant will have the right to submit a claim for pecuniary and non-pecuniary damage, and to seek the elimination of other negative consequences of his illegal conviction.

According to Article 41 of the Convention the Court is entitled to afford “just satisfaction” only where “the internal law of the High Contracting Party concerned allows only partial reparation to be made”.

In the case before us, neither the applicant nor the Court claimed or suggested that the national legislation of Moldova allowed only “partial reparation”.

And, indeed, Law No. 1545 provides for full compensation for illegal conviction. To illustrate this let me mention, by way of example, the case of Duca v. Moldova [1] where the applicant, after having been acquitted, was awarded by the Moldovan courts MDL 150,000 (the equivalent of EUR 10,289 at the time). As that case clearly showed, Moldovan legislation cannot be regarded as allowing “only partial reparation to be made”. If so, the Court has clearly exceeded its powers as stipulated in Article 41 of the Convention.

Moreover, in theory, granting the applicant compensation for non-pecuniary damage might prevent him from submitting a claim in respect of the same non-pecuniary damage with the Moldovan authorities, as it might allow the Moldovan courts to reject the applicant ’ s claims (if lodged) on the grounds that an award for non-pecuniary damage has already been made by our Court. Here I am referring to the Baybaşın case , where the Court ruled that “... once the necessary general and individual measures have been taken to put an end to the violation found and provide redress for its effects – any additional awards over and above those made by the Court are at the discretion of the competent domestic authorities...” ( Baybaşın v. the Netherlands , no. 13600/02, § 76, 6 July 2006) . This situation, in my view, may damage the applicant ’ s interests because, in principle, he could have received from the Moldovan authorities a higher amount in respect of non-pecuniary damage than that awarded by our Court.

Just to sum up, in my judgment, both from the point of view of the Court ’ s powers as stipulated in Article 41 and from the point of view of the applicant ’ s interests, making an award for non-pecuniary damage in the present case was a wrong step.

[1] See Duca v. Moldova (no. 1579/02), partial admissibility decision, 11 April 2006