JOINT CONCURRING OPINION OF JUDGES NUSSBERGER AND LEMMENS

1. We voted with the majority to award the applicant an amount of 50,000 euros in respect of non-pecuniary damage.

2 . However, to our regret, we are unable to subscribe to the reasons contained in the judgment. In fact, we share to a very large extent the criticism made by Judges Raimondi, O ’ Leary and Ranzoni in their joint dissenting opinion. Nevertheless, we believe that a claim for just satisfaction for non-pecuniary damage has been validly made in the present case and that the Grand Chamber can naturally act upon it.

The issue at stake: the consistent application of the Rules of Court

3. The Rules of Court are made to be observed. They are clear and have been applied over decades. Whoever seeks an award in respect of non ‑ pecuniary damage has to make a claim to that effect [1] so that the Government may comment on it and the Court can decide after having heard both parties.

4. It is true that the text of the Convention itself does not set out either the procedure for claiming just satisfaction or the specific prerequisites. Nevertheless, there is no contradiction between Article 41 of the Convention and the Rules of Court. It is one thing to regulate the formal requirements for exercising a certain competence, and another to grant discretion as to the substance of the decision to be taken. It follows from Article 41 of the Convention that the Court has a certain discretion to award or not to award compensation. But this discretion does not include the possibility of observing or not observing the procedural rules.

Awarding just satisfaction for human-rights violations: an acceptable rather than a good solution

5. Before turning to the question of interpretation of the relevant rules, we would like to acknowledge that it may generally be questionable whether human-rights violations can be cured by money. The applicant rightly states that he would not be able to express in monetary terms the pain of having lost his son. [2]

6. Nevertheless, having no better option, the drafters of the Convention chose to provide for the option of awarding m oney as one of the means of bringing about justice, despite the danger of commercialising human rights.

Discretion and equal treatment

7. While it is true that the Court has a discretion to award just satisfaction for non -pecuniary damage, there is still the question of equality requiring it to treat those in the same situation in the same way. In many cases the Court has not awarded just satisfaction because it has considered that the necessary claim had not been made in the correct way. [3] We share the dissenters ’ view that the Court should follow its own rules and case-law and not “invent” exceptions to fit a given case.

Formulation of the claim in the application form

8. While Article 41 of the Convention does not specify a requirement to make a claim for just satisfaction, the general principle of law ne ultra petitum prohibits a court from awarding more than what has been claimed. [4] This principle is confirmed in Rule 60 § 1 of the Rules of Court: “An applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention in the event of the Court finding a violation of his or her Convention rights must make a specific claim to that effect.” [5] We note that there is no indication in Rule 60 § 1 of when the claim should be made.

9. Rule 60 § 2 goes on to provide that “[t]he applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant ’ s observations on the merits unless the President of the Chamber directs otherwise”. We understand that this rule provides for the need to specify the claims already made in the application form (if this has indeed been done) and to produce relevant evidence of the damage incurred. It is interesting to note that Rule 60 § 2 does not provide that the claim as such can only be made during the communications stage, that is, within the time-limit fixed for the submission of the applicant ’ s observations.

10. Rule 60 § 3 further provides that “[ i ]f the applicant fails to comply with the requirements set out in the preceding paragraphs the Chamber may reject the claims in whole or in part”. Why “may”, and not “shall”? [6] In our opinion, this is so because there are cases where the Court can award just satisfaction without needing any particulars of claim or supporting documents. This is obviously, and in particular, the case with claims for just satisfaction for non-pecuniary damage. While it is clearly preferable to have an indication of what the applicant considers to be adequate, this cannot be seen as a condition sine qua non for awarding compensation. Rule 60 § 3 empowers the Court to reject a claim where, because of the absence of itemised particulars or supporting documents, it is not in a position to rule (easily) on the quantum of the damage. [7] We further note that, according to the very wording of Rule 60 § 3 itself, that provision is based on the assumption that a claim has been made [8] ; if no claim at all has been made, the principle ne ultra petitum is a sufficient basis for the Court not to make an award [9] , and there is no need to mention any other possible failure by the applicant.

11. As is noted in paragraph 38 of the judgment, in the present case the applicant sought compensation, in the application form, for violations of Article 2 of the Convention. Our understanding of Rule 60 is that this should be sufficient to satisfy the requirement that a “specific claim” must be made, at least as far as non-pecuniary damage is concerned. Moreover, we see no reason why the Court cannot, even without further particulars of claim, award just satisfaction for non-pecuniary damage on the basis of the claim thus made.

12. However, while such an interpretation of the Rules of the Court is in our view perfectly valid, we acknowledge that the Court ’ s practice has been different. This is clearly expressed in paragraph 5 of the Practice Direction on Just Satisfaction Claims where it is said that the Court “will also reject claims set out on the application form but not resubmitted at the appropriate stage of the proceedings ... ” From the facts of the case it is evident that the applicant was informed about this practice (see paragraph 39 of the judgment).

Formulation of the claim in the applicant ’ s memorial before the Grand Chamber

13. Even if Rule 60 should be read in the way that has been common practice for years and has been laid down in the Practice Direction, we still believe that there is a sufficient basis for enabling the Grand Chamber to make an award of just satisfaction.

14. Indeed we base our view, alternatively, on the specific powers which the Grand Chamber has when deciding cases referred to it at the request of one of the parties (Article 43 of the Convention). A case referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment . [10] The judgment of the Chamber will be set aside in order to be replaced by the new judgment of the Grand Chamber. [11] A reconsideration of an award in respect of non ‑ pecuniary damage is neither explicitly nor implicitly excluded by the Convention or the Rules of Court; nor is there, as claimed by the majority, a practice that “ th e just satisfaction claim remains the same as that originally submitted before the Chamber” (see paragraph 63 of the judgment). [12]

15. According to Rule 71 § 1 of the Rules of Court, “[a] ny provisions governing proceedings before the Chambers shall apply, mutatis mutandis , to proceedings before the Grand Chamber”. This means that the parties may be invited to submit further evidence and written observations before the Grand Chamber (see Rule 59 § 1). In his or her observations an applicant can then raise the question of non-pecuniary damage anew.

16. In the present case we interpret the applicant ’ s invitation to the Court to “affirm the judgment” (see paragraph 52 of the judgment) as a new claim for non-pecuniary damage, this time specified in the amount of 50,000 euros. The Russian Government had ample opportunity to comment on this claim.

17. In our opinion, an award by the Grand Chamber of just satisfaction for non-pecuniary damage in these circumstances is therefore compatible with the Rules of Court.

Judicial policy: the steps to be taken

18. The conclusion which we arrive at is a solution for the specific case before us. In future, if it is deemed necessary to provide for exceptions to the principle ne ultra petitum we think that the matter can best be regulated by amending Rule 60 of the Rules of Court. We agree with the view expressed in the joint dissenting opinion that the definition of exceptions to procedural rules is an important question which should be discussed and decided by the plenary Court on the basis of Article 25 (d) of the Convention and not by seventeen judges of the Grand Chamber. [13]

19. It will then be for the plenary to define the circumstances in which the Court can make an award of just satisfaction despite the applicant ’ s failure to make a valid claim.

20. We note that the majority ’ s reasoning is based on a set of “prerequisites” and “compelling considerations” which circumscribe the “exceptional situations” that allow for derogations from the principle ne ultra petitum (see paragraphs 78-82 of the judgment). With all due respect, we cannot consider these conditions to be workable. On this point, we fully agree with the views expressed in the joint dissenting opinion. [14] The conditions are vague and imprecise. Moreover, the “compelling considerations” coincide almost entirely with the general conditions for making an award in respect of non-pecuniary damage. [15]

21. In our opinion, any exceptions should be formulated as briefly and clearly as possible, so that they can easily be applied by the Court in each individual case.