DISSENTING OPINION OF JUDGE PAVLOVSCHI

In the present case the Chamber decided that there has been a violation of both Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

With all due respect to my fellow judges I regret that I am unable to agree with their conclusions which, in my opinion, were based on a misunderstanding of the civil procedure which existed at the material time in Moldova and on an examination of allegations which had not been made by the applicant or communicated to the Government of Moldova.

The Applicant ’ s Complaints

According to the judgment, the applicant in fact complained of the failure to enforce the judgment of 21 July 1998 and the subsequent quashing of that judgment by the Chişinău Regional Court on 11 June 2002, which in his view violated Article 6 § 1 of the Convention.

He also complained that the non-enforcement and subsequent quashing of the judgment of the Râşcani District Court of 21 July 1998 had the effect of infringing his right to the peaceful enjoyment of his possessions, as secured by Article 1 of Protocol No. 1. [1]

In order to examine the applicant ’ s complaints properly it is crucial to determine whether he had a final judicial decision in his favour, which is the usual procedure followed by the Court in such cases [2] .

Unfortunately, the Chamber, without giving any reasons, totally avoided the examination of this question and did not advance any argument in favour of finding that the judgment in question was final. Had it done so, it would have been open to the following counter-argument.

It is clear from the case-file that the judgment against Mr. C. – the applicant ’ s procedural opponent – was delivered in his (Mr. C. ’ s ) absence. All the Chamber ’ s reasoning [3] would have been relevant had the defendant lodged his appeal out of time, but he did not lodge it out of time: he lodged it within the time-limit prescribed by the rules of civil procedure. The Chamber, following the applicant ’ s approach in trying to apply "out of time" requirements to a "within the time-limit" situation, confuses two different things: two different procedures.

There is no doubt that the defendant, Mr. C., was absent during the trial, being at that time on a mission in the Russian Federation . This is clear from the case-file and confirmed by some certificates. There is no doubt that the judgment was delivered in his absence, as was mentioned in the judgment delivered by the national court. And, accordingly, we are bound to take these facts as the starting point of our analysis.

At the material time, the old Moldovan Code of Civil Procedure contemplated two principal situations concerning legal time-limits for the lodging of an appeal. The first was where the judgment was delivered in the parties ’ presence. In this situation time started to run on the date of delivery of the judgment. The second situation was where the judgment was delivered in one or both of the parties ’ absence, in which case time started to run on the date a copy of the operative part of the judgment was served on the party that had been absent during the delivery stage.

In the second situation there was no need for a formal extension of the time-limit for lodging an appeal if the appeal was lodged within 15 days after the applicant had received a copy of the judgment.

The law did not make any distinction between a justified absence and an unjustified absence. It spoke only about a situation of absence of one or both of the parties and explained:

"... for the parties, that have not participated in the trial, the time-limit for lodging an appeal shall start to run from the date they are handed a copy of the operative part of the judgment..." [4] .

Since the defendant Mr. C. was not present at the court hearing, under the Moldovan legislation, the judgment delivered in favour of Mr. Istrati could not have become final and binding until 15 days after the date a copy of it was served on Mr. C., always provided that Mr. C. had not lodged an appeal.

A copy of the judgment was served on Mr. C. on 27 November 1998 . [5] Consequently, had he not lodged an appeal, that judgment would have become final and binding 15 days later, that is on 12 December 1998 (however, it did not because Mr. C. did lodge an appeal).

At the same time, as is mentioned in § 40 of the present judgment, the enforcement warrant was issued on 5 August 1998 , that is to say three and a half months before the date when the judgment, in theory, could have become final and binding. So, regardless of further proceedings, the i ssuing

of an enforcement warrant in the present case was contrary to the provisions of the Moldovan legislation and, as a result, that enforcement warrant was null and void ab initio.

That is why I cannot share the Chamber ’ s conclusion that: “ ... Since neither of the parties appealed against the judgment within the legal time-limit of fifteen d ays, it became enforceable on 5 August 1998 ... ” [6] This statement denotes a total lack of knowledge of the Moldovan civil procedure. But such knowledge is indispensable, because when we speak about a judicial decision becoming effective, we are speaking first and foremost about the legal conditions stipulated in the domestic legislation, which govern this issue.

I am very sorry to have to point this out, but according to the Moldovan legislation the judgment of 21 July 1998 has never become final or enforceable because, as has been shown above, it was issued in the absence of the defendant and subsequently, once it had been served on Mr. C., it was appealed against and quashed.

If the judgment in favour of the applicant was not final and binding the Moldovan judicial authorities cannot be criticised for failing to enforce it and if the defendant lodged an ordinary appeal within the time-limit prescribed by law, the judicial authorities cannot be criticised for examining the appeal. Moreover, had the Moldovan judicial authorities failed to examine the appeal lodged by Mr. C., there could, in theory, have arisen the question of a violation of Mr. C. ’ s procedural rights.

Instead of determining the legal nature of the judgment of 21 July 1998 , as the Court has done in other cases concerning the non-enforcement or quashing of a final judicial decision, the majority tried to replace the notion of a “final” judgment with the notion of an “enforceable” judgment. That approach is totally wrong and has nothing to do with the legal interpretation of law.

If we look at the part of the present judgment which contains some information on the Moldovan rules of civil procedure, we find a reference to Article 338 of the Code of Civil Procedure – “The issuing of an enforcement warrant” which stipulates:

“ ... An enforcement warrant shall be issued to the plaintiff by a court after the judgment has become final ... ” [7]

Accordingly, it runs counter to both elementary logic and Moldovan civil procedure to state that in the present case the judgment was not “final”, but was nevertheless ”enforceable”.

I regret very much that the majority really failed to establish a causal link between these two notions, in general, or to determine whether such a link existed in the case under consideration, in particular.

So, summing up what has been said above, in view of t he fact that the judgment of 21 July 1998 was not final, I fail to see in the present case any sign of a v iolation of Article 6 § 1 on account of the failure to enforce that judgment or of the subsequent quashing of that judgment by the Chişinău Regional Court.

Accordingly, there has been no violation of Article 1of Protocol No. 1 either.

Allegations Examined and Violations Found

Despite the fact that the applicant did not complain about the issue of the general fairness of the proceedings, the majority decided to find a violation of Article 6 § 1 on the ground that the proceedings failed to meet the requirement of a fair trial contained in Article 6 § 1 of the Convention [8] , while at the same time leaving unanswered the allegations made by the applicant in his applications.

Unfortunately, in their reasoning the majority do not make it sufficiently clear to which set of proceedings they are referring. They mention only the following: “ ... It falls to the Court to determine whether the procedure leading to the quashing of that judgment was within the limits of the standards set by Article 6 of the Convention ... ” [9]

It is quite difficult to understand what this sentence, on which the whole judgment is based, is supposed to mean.

One may presume that the majority are seeking to question the fairness of the appeal proceedings because, following the examination of Mr. C. ’ s appeal, the judgment in favour of the applicant was quashed.

If so, I should say the following:

(a) As has been shown above, the applicant never complained of unfairness in the appeal proceedings as such in his case, referring instead to the “non-enforcement of the judgment” and the “quashing of the judgment” arguments in combination with an alleged violation of his property rights.

(b) The “unfairness of the appeal proceedings” allegation, has never been communicated to the Moldovan Government and the Government have never been asked to provide their observations concerning the fairness of the appeal proceedings in the applicant ’ s case. However, the principles of adversarial procedure require the parties to be given the opportunity to submit their observations on all the allegations which the Court intends to examine and on which it intends to rule.

To determine which complaints were communicated to the Government, let me describe in brief the chronology of events.

On 23 April 2002 the Court communicated to the Government of Moldova the applicant ’ s complaint concerning the alleged failure to enforce the judgment of 21 July 1998 , putting the following questions and I quote:

“ ... The observations should deal with the following questions:

1. Is the failure to enforce the judgment of 21 July 1998 compatible with the requirements of Article 6 § 1 of the Convention under its civil head?

2. Has there been an interference with the applicant ’ s rights to peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention, resulting from the non-enforcement of the judgment of 21 July 1998 ? If so, was that interference justified in accordance with Article 1 of Protocol No. 1 to the Convention?...” [10]

On 30 November 2005 the Court, after examining the applicant ’ s complaint concerning the quashing of the judgment of 21 July 1998 , decided to communicate it to the Government putting the following questions and I quote again:

“ ... Was there a breach of the applicant ’ s rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, as a result of the re-opening of his case by the Chisinau Regional Court on 11 June 2002?

Was the appeal leading to the quashing of the judgment of 21 July 1998 lodged within the legal time limit (c.f. Section 283 of the Code of Civil Procedure).” [11]

So, as is clearly shown by the above-quoted letters, the issue of general unfairness of the appeal proceedings in the applicant ’ s case has never been communicated to the Government.

Moreover, in the judgment, the majority continually make other allegations which have not been communicated to the Government either.

For instance, in § 50 a careful reader may find the following allegation and I quote:

“The appeal in question was examined almost four years after the date on which the first instance court adopted its judgment and the Government have not adduced any reasons to explain why the appeal was not examined earlier.” [12]

I am really puzzled by this statement, because this argument is clearly of a "length of proceedings" nature which, again, has never been the subject of complaint by the applicant. Nor has the Court ever decided to examine this issue ex officio .

In any event, in dozens of cases against other countries the Court has always examined the "length of proceedings" issue separately, and has properly communicated the complaints to the Governments, as well as ruling on them.

Let me show you just some examples, which confirm the above statement.

In the case of Sikora v. Poland , application no. 64764/01, the Court found that:

“ ... in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1 ... ” [13]

In the case of Fojcik v. Poland , application no. 57670/00 the Court decided to declare “the complaint concerning the length of proceedings admissible ... ” and to find “ ... a violation of Article 6 § 1 of the Convention on account of the length of the proceedings ... ” [14]

In the case of Maria and Andrzey Korbel v. Poland , application no. 57672/00, the Court ruled that the “ ... requirement of the “reasonable time” laid down in Article 6 § 1 of the Convention was not complied with in the present case. There has accordingly been a violation of that provision ... ” [15]

Of course, this list could be continued. Anyway, it goes without saying that in all the above cases, as well as in all other similar cases, the length of proceedings issue was examined after a complaint had previously been communicated to the Government.

Unfortunately, this did not happen in the present case where the allegation concerning the length of time it took to examine Mr. C. ’ s appeal was never communicated to the Government of Moldova. Nor were the Government asked for the reasons for such a lengthy examination of the appeal.

In this kind of situation, where an applicant does not complain of a particular violation, where – contrary to Rule 54-2 – the Government were not given notice of the allegation, or a chance to submit written observations on the allegation on which the Court intends to rule, and where the Court even fails to raise the issue ex officio , I find it very questionable – if not wrong from a procedural point of view – to rule that there has been a violation.

In a similar vein, in § 50 of the judgment, the majority gives as a reason for its findings and I quote:

“ ... The Court notes with particular concern that the appeal application allegedly lodged with the Râşcani District Court on 10 December 1998 bears an entry stamp of that court dated 15 May 2002 (see paragraph 12 above). The presence of such a stamp raises a question as to the genuine date of the document ... ” [16]

Of course, I am not the proper person to teach my learned colleagues, but in my view, if there is a “question”, the best procedure is to seek an “answer” to it by putting the question to the parties rather than indulging in speculation such as:

“ ... The presence of such a stamp ... taken together with the other facts described above and the fact that the appeal was examined only after the communication of the case to the Government, would indeed be capable of giving the applicant reasonable doubts as to the genuineness of the appeal and as to the fairness of the proceedings ... ” [17]

Hinting at the possible falsification of judicial documents by the Râşcani District Court or the Chişinău Regional Court , the Court makes some extremely serious accusations against the Moldovan judiciary, accusations which have not been proven or even verified.

Personally, I find such a “ modus operandi ” absolutely inadmissible as it raises some very delicate and serious questions.

Just to conclude, in so far as the law part is concerned, it is very difficult for me to accept a situation in which:

(a) complaints made by the applicant are not properly examined, analysed and given a legal characterisation, in accordance with the previous case-law; and

(b) allegations which have neither been made by the applicant nor communicated to the Government for observation are used to find a violation.

Damages

As far as pecuniary and non-pecuniary damage are concerned, I consider it worth mentioning that the applicant claims no compensation for non-pecuniary damage caused by the violations that have been found. It has been this Court ’ s longstanding practice not to award anything which has not been the subject of a claim by the applicant. I do not think that the present case is one in which we should start changing our case-law in order to grant an applicant something which clearly exceeds his financial claims. The same comment applies in equal measure to the issue of pecuniary damage.

These are the points on which I respectfully disagree with my colleagues.

[1] See paragraphs 24 and 24 of the present judgment.

[2] See for instance, paragraphs 39 and 40 of the judgment in the case of Wasserman v. Russia , where the Court states: “…by failing for years…to comply with the final judicial decision in the present case, the Russian authorities deprived the provisions of Article 6 § 1 of its useful effect. There has accordingly been a violation of Article 6 § 1..”

[3] See paragraphs 39-43 and paragraphs 46-48 of the present judgment.

[4] See Article 282 of the old Code of Civil Procedure of Moldova ( 26 December 1964 )

[5] 5 See the Government’s observations 11.01.2006 nr. 06/144  wh ere they write the following: “ ...En l’espèce , si l’on examine l’appel introduit par l’appelant Gh . Călugărul on pourrait observer qu’il a été présenté le 10.12.1998 au Tribunal ChiÅŸinău, invoquant le motif qu’il n’a pas participé à la séance de jugement lors du prononcé de l’arrêt respectif mais en a pris connaissance à peine le 27.11.98 (les éléments de l’affaire civile Istrati A. contre Călugărul Gh. en restitution du préjudice moral et matériel ont été envoyés à l’attention de la Cour Européenne par la lettre du 21 mai 2004).

De cette façon, à partir du 27.11.1998 (la date où l’appelant Călugărul Gh. a pris connaissance de l’arrêt du tribunal du secteur Rîşcani du 21 juillet 1998), jusqu’au 10.12.1998 (la date où Gh. Călugărul a introduit l’appel contre le jugement du 21 juillet 1998), se sont écoulés 13 jours, le requérant s’étant parfaitement encadré dans le délai de 15 jours prévu à l’article 282 du Code de procédure civile… ”

[6] See paragraph 8 of the judgment.

[7] See the “Relevant domestic law” part of the present judgment

[8] See paragraph 54 of the judgment.

[9] See ibid, paragraph 48.

[10] See communication letter of 23 April 2002 .

[11] See communication letter of 30 November 2005 .

[12] See paragraph 50 of the judgment.

[13] See judgment in the case of Sikora v. Poland , application no. 64764/01, paragraphs 22 and 23.

[14] See operative provisions of the judgment in the case of Fojcik v. Poland , application no. 57670/00.

[15] See  paragraph 46 of the judgment in the case of Maria and Andrzej Korbel v. Poland , application no.57672/00.

[16] See paragraph 50 of the present judgment.

[17] See ibid, paragraph 50.