PARTLY DISSENTING OPINION OF JUDGE PAVLOVSCHI

I share the view of the other members of the Chamber that there has been a violation of Article 6 of the Convention in the present case as well as a violation of Article 1 of Protocol No. 1.

At the same time I regret very much the fact that I cannot say the same as far as the conclusions drawn by the majority regarding the application of Article 41 are concerned. I am not able to share the position taken by the majority for the following reasons.

In paragraph 13 of the judgment there is a reference to the fact that the proceedings are still pending before the domestic courts. [1]

In this kind of situation I think that before ruling on the Article 41 issue the Court would have been justified in waiting till the domestic proceedings had come to an end.

Exactly the same approach was taken by the Grand Chamber in the case of Brumarescu v. Romania – a leading case that concerned the quashing of a final judicial decision.

As in the present case, in Brumarescu the Court was dealing with a situation in which domestic proceedings were pending before the national authorities. [2]

In their observations in that case, the Romanian Government submitted, along with other arguments, that any award for pecuniary damage would be unjust as the applicant ’ s claim in the domestic courts to his house could still succeed. [3]

In the particular circumstances of that case, the Court considered that the question of the application of Article 41 was not ready for decision and decided to reserve it in its entirety. [4]

It was only fifteen months later, that is to say after the domestic proceedings had come to an end, that the Grand Chamber returned to the question of Article 41 and delivered a judgment on just satisfaction.

In that judgment the Grand Chamber stated:

“It appears from the documents submitted by the parties that the applicant ’ s appeal against the judgment of 21 April 1999 (see the principal judgment, § 30) was dismissed by the Bucharest County Court on 28 February 2000 . On an application made under Law no. 112/1995, that court held that it had jurisdiction only to award compensation, according to the criteria laid down in Law no. 112/1995. The applicant appealed against that decision to the Bucharest Court of Appeal as the court of last instance. His appeal was dismissed on 26 October 2000 .” [5]

So, in my view, and in so far as it clearly follows from Brumarescu , there was a direct link between the fact that domestic proceedings were pending and the decision to adjourn the determination of the Article 41 question. It is also quite obvious from the judgment, that, along with other reasons, the pending domestic proceedings served as a legal ground for the Grand Chamber ’ s decision to reserve the Article 41 issue in its entirety.

The same solution would have been logical in the present case, at least as regards the question of pecuniary damage. The consideration of the Article 41 issue should have been adjourned till the domestic judicial proceedings had ended. Unfortunately, this has not been the case.

Despite the fact that a similar issue, that is the determination of the damage caused to the applicant, is still pending before the national courts, the majority decided to grant the applicant practically everything she claimed, including hypothetical bank interest and the principal value of her law-suit (she sought EUR 17,578 for pecuniary damage and was awarded EUR 16,000 under this head). [6] In practical terms, the majority has stood in the shoes of the first-instance Moldovan court. This decision makes the national judicial proceedings devoid of purpose and in my view constitutes both a serious deviation from the principle of “ subsidiarity ” and interference with the proper administration of justice in Moldova .

I have spent a lot of time studying judgments delivered against other countries trying to find at least one example of the Court ruling on a matter pending before national judicial authorities, but have failed to do so (information as of 13 January 2006). To the best of my knowledge, only in the case of Popov and in the present case has the Court ignored the principle of “ subsidiarity ” and ruled on a case similar to a case pending before national judicial authorities in lieu of a national court.

Time and again I ask myself how far this Court is going to move in the direction of assuming the role of the national authorities.

I would readily have accepted an award for non-pecuniary damage following our finding of a violation, but an award for pecuniary damage, in the particular circumstances of the present case, is something which is very difficult for me to accept.

This is where I respectfully disagree with the majority.

[1] See: the present judgment, paragraph 13.

[2] See: the judgment in the case of Brumarescu v. Romania (Merits), paragraph 30.

[3] See: ibid, paragraph 83.

[4] See: ibid, paragraph 84.

[5] See: the judgment in the case of Brumarescu v. Romania (Just satisfaction), paragraph 8.

[6] See: the present judgment, paragraphs 35 and 37.