JOINT DISSENTING OPINION OF JUDGES RAIMONDI, O ’ LEARY AND RANZONI

I - Introduction

1 . In its judgment of 5 November 2015, the Chamber held unanimously that there had been a violation of Article 2 of the Convention under both its substantive and procedural limbs. These violations were the result of the unlawful killing of the applicant ’ s son by police during a demonstration about alleged corruption by public officials held in a town in Dagestan in 2006 and the ensuing ineffective investigation into his death.

2 . It is important to stress at the outset that today ’ s Grand Chamber judgment confirms, unanimously, this finding of a double violation of Article 2 of the Convention. [16]

3 . The referral of the case to the Grand Chamber at the request of the respondent State and in accordance with Article 43 of the Convention concerned exclusively the award of just satisfaction pursuant to Article 41 of the Convention. It is trite, but perhaps necessary, to recall that a referral request such as this is only accepted by the Grand Chamber Panel if the case raises a serious question affecting the interpretation or application of the Convention or its Protocols or a serious issue of general importance. The question raised by the instant case – which by its nature falls under both branches of Article 43 – was whether the Court can award just satisfaction and, in particular, non-pecuniary damages, in the absence of a claim for just satisfaction duly submitted in accordance with the Convention and the Rules of Court? [17]

4 . In determining whether the Court is competent to make an award, we would argue that the circumstances of the instant case and, in particular, the events surrounding and following the tragic death of the applicant ’ s son, are relevant but not determinative. The Court ’ s task under Article 19 of the Convention is to ensure the observance by States of their obligations under the Convention. The finding of a double violation of Article 2 of the Convention in the instant case corresponds to its primary function. As the majority judgment recognises, the awarding of sums of money to applicants by way of just satisfaction is not one of the Court ’ s main duties but is incidental to its task of ensuring the observance by States of their obligations under the Convention. [18]

5 . What the Grand Chamber was being asked to do in the context of this referral was to resolve legal uncertainty as a result of the development of diverging case-law on the just satisfaction question outlined above (whereby some chambers award just satisfaction against some States in the absence of a claim while others, in cases concerning other States, do not). As such, the Grand Chamber was also being asked to answer a question of considerable importance regarding the nature and value of the procedural rules which govern the Court and its procedures and by which applicants and respondent States are meant to abide.

6 . We respectfully disagree with the majority that, in the absence of a claim for just satisfaction, the Court can and should award pecuniary and non-pecuniary damages as well as costs and expenses. [19] As we explain below, the legal framework on just satisfaction, established in Article 41 of the Convention and Rule 60 of the Rules of Court (and explained, furthermore, in the relevant Practice Direction), do not support the finding of the majority. The fact that the Court has, in a limited line of cases relating almost exclusively to certain respondent States, deviated from the rule clearly elucidated in its Rules of Court and enunciated in its case-law is not a sound basis for the validation of this divergent case-law by the Grand Chamber. While it is true that the terms of Article 41, the Rules of Court and the Court ’ s own case-law on just satisfaction provide for a certain degree of judicial discretion, we would argue that this discretion comes into play only when certain formal and substantive requirements are met, only when necessary and only when it is first established, at the outset, that the internal law of the respondent State allows only partial reparation to be made.

7 . In holding as they do, the majority of the Grand Chamber risk driving a coach and four horses through the procedural rules governing just satisfaction and undermining, more generally, the Rules of Court, despite the importance and raison d ’ être of procedural rules. The Court itself, in its case-law on Article 6 of the Convention, has emphasized this. In order to determine when the newly confirmed exception will apply the majority judgment establishes certain criteria. However, the latter are both vague and porous and likely to give rise either to a considerable degree of legal uncertainty, or to differential treatment of different respondent States, or to both.

8 . We would submit that an alternative was open to the Court if indeed a review of the relevant case-law by the Grand Chamber indicated that refusing an award of just satisfaction in the absence of a duly submitted claim was problematic when viewed from the perspective of the Convention system for the protection of fundamental rights. [20]

II – Detailed examination of the legal framework governing just satisfaction claims

9 . The relevant rules, in the Convention and the Rules of Court, on just satisfaction are outlined in the Grand Chamber judgment. [21]

10 . Given that, we would argue, the majority are selective in their reliance on some rules to the pointed exclusion of others, it is necessary to analyse them in greater detail.

Article 41 of the Convention

11 . Article 41 must, as the majority insist, be our starting point. The Court “shall” afford just satisfaction to the injured party, but such an award presupposes:

- the finding of a violation;

- the finding that the internal law of the respondent State allows only partial reparation to be made;

- the existence of an injured party (normally the “victim” of the violation), and

- the necessity of an award to be made. [22]

12 . Article 41 thus empowers the Court to make an award but it does not oblige it to do so. [23]

13 . It is true, as the majority judgment indicates at § 67, that Article 41 does not specify that the existence of a claim, duly made, is a prerequisite for the Court to award just satisfaction. Nevertheless, is it not in the very nature of a document like the Convention – an international treaty signed in 1950 and subsequently ratified by 47 High Contracting Parties – that it is left to the Rules of Court to specify to which formal and substantive requirements an award by the Court of just satisfaction is subject? [24] Like all procedural rules governing the organisation, procedure and proceedings in a court of law, whether national or international, the Rules of Court contain the details that the relevant Convention article lacks. They put flesh on the bones of those Convention provisions which concern procedure and the organisation and functioning of the Court. [25] Neither, for example, does Article 41 specify that the satisfaction for which it provides covers pecuniary and non-pecuniary damages as well as costs and expenses. This only became clear over time, as the Court interpreted and applied first Article 50 and then Article 41 of the Convention, in conjunction with the relevant Rules of Court. [26] Nor is mention made in Article 41 of the need for the establishment of a causal link. Should this lead us to call into question the requirements established in this regard in the Rules of Court, the Practice Direction and the Court ’ s own case-law? Finally, the reasoning of the majority in § 67 of the Grand Chamber judgment can so easily be turned on its head. Had the drafters intended the Court to have the power to make an award of just satisfaction of its own motion, they would have provided for this explicitly. An explicit possibility to grant reparation proprio motu in exceptional cases is provided for the International Criminal Court; the only international court which, to our knowledge, has this express power. [27]

14 . The majority are also right in recognising the hierarchical superiority of Article 41 over Rule 60. [28] Unfortunately, its reasoning sacrifices the nature, content and function of procedural rules on that normative altar. It also ignores the scope of the rule-making powers of the Court and its plenary, pursuant to Article 25(d) of the Convention. [29]

Rule 60 and the Practice Direction on just satisfaction claims

15 . Rule 60 itself merits closer attention. Pursuant to Rule 60(1), 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. The terms of this rule could not be clearer but in case they are not clear enough, point 4 of the Practice Direction indicates: “Claimants are warned that compliance with the formal and substantive requirements deriving from the Convention and the Rules of Court is a condition for the award of just satisfaction”. At point 5, it further states: “The Court will also reject claims set out on the application form but not resubmitted at the appropriate stage of the proceedings and claims lodged out of time”. These conditions are spelled out to applicants and their legal representatives in correspondence from the Registry.

16 . The Court has, in the past, pointed to and relied on the clarity of these provisions. In Andrea Corsi v. Italy (Revision), following the Court ’ s refusal to grant just satisfaction in the absence of a claim, the applicant requested revision of the judgment because he was sure his representative had submitted such a claim, although he could not prove that this was the case. The Court held: “[I]t does not suffice to submit claims for just satisfaction; the Court must also receive them within the time-limits ... . The provisions of the Rules of Court are clear in this respect as they mention the “filing” of these documents at the Registry . Rule 38 § 2 [of the Rules of Court] specifies the means of verifying whether the parties have observed the time-limits”. [30] Should there be any doubt as to the prevailing line established in the case-law on Article 41, previously Article 50, it is also worth revisiting Sunday Times v. United Kingdom (Article 50), where it is clearly stated: “In the context of Article 50, the Court normally looks only to items actually claimed  ...  and, since no question of public policy is involved, will not of its own motion consider whether the applicant has been otherwise prejudiced ”. [31] This is not simply a dusty, historical, jurisprudential precedent, albeit one reflecting clearly the principle of ne ultra petitum . It is a judgment which reflects a principle respected and applied by the Court over many years, not least by the Grand Chamber in a recent case where it refused to award any just satisfaction in the absence of a claim duly made by the applicant. [32]

17 . The submission of a claim as a prerequisite for an award is further emphasised, firstly, by Rule 60(2), which provides that applicants 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.

18 . It also follows, secondly, from Rule 60(4), which provides that the applicant ’ s claims shall be transmitted to the respondent Contracting Party for comment. The latter rule is essential to and characterises the adversarial nature of the proceedings before the Court. Under Rule 60(4), the respondent State is always offered an opportunity to comment on the applicant ’ s claim within a specified time-limit. The Registrar informs the parties as appropriate by letter. The President of the Section may agree to extend the time-limit if good reason is shown and if such an extension has been requested before the expiry of the established time-limit. If the response is submitted by a respondent State out of time it is not admitted to the file, unless the Court has exercised its discretion and extended the deadline. If it is duly submitted, it is transmitted to the applicant for information. The importance, for the parties, for the Court ’ s proceedings to be properly adversarial is plain to see. Any other organisation of procedure would undoubtedly fall foul of the Court ’ s own case-law under Article 6 of the Convention. [33]

19 . As regards the submission of a claim, when and in what form, the applicant in the instant case had indicated a wish for compensation in his application form. His representative was invited, by letter of 24 th May 2012, following communication of the case, to submit observations and claims for just satisfaction within a time-limit. With regard to the latter, the representative ’ s attention was drawn, in unequivocal terms, to the fact that failure to submit (quantified) claims within the time-limit together with the required supporting documents would mean the Chamber would make no award or reject the claims in part and this despite the fact that the applicant may have indicated a wish for compensation at an earlier stage in the proceedings. [34] No observations or claims were submitted by the deadline of 26 July 2012. The applicant ’ s representative subsequently explained the lack of submissions as resulting from the failure of her former law firm to forward her correspondence. In the circumstances and, on an exceptional basis, by letter of 11 th October 2012, the President of Section I granted her leave to submit observations and claims, extending the deadline to 22 November 2012 in the exercise of the discretion conferred by Rule 60(2). Nothing was submitted to the Court by the applicant or his representative by that date. The facts of the present case indicate that a clear procedural rule was applied with the requisite degree of flexibility, in accordance with the Rules of Court, with a view to protecting the applicant ’ s interests.

20 . Our examination of Rule 60 brings us to its third paragraph; the only potentially problematic one in terms of clarity and the one on which the majority prefer to dwell to the exclusion of the other three paragraphs outlined above. Rule 60(3) provides that “If 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”. The reference to the preceding paragraphs (plural) and the use of “ may ” (facultative) are where potential problems lie. [35] This rule could be read, in conjunction with the use of “shall” in Article 41, as proof of the Court ’ s (absolute) discretion when awarding just satisfaction. This is the preferred route of the majority. [36] However, their choice is not borne out by the terms of Article 41, which contain conditions as explained above, by the clear terms of the remainder of Rule 60, by the terms of the Practice Direction or by the prevailing position of the Court in its case-law. [37] All point to the fact that the Court will award just satisfaction but only in certain circumstances and where certain conditions, formal and substantive, are fulfilled. It would be strange for Rule 60 to establish the conditions for the processing and grant of an award only to nullify those conditions immediately thereafter. Furthermore, whatever one is to deduce from the reference to paragraph s and may in Rule 60(3), even that Rule, given its reference to “the claims”, presupposes that such claims have been made. That Article 41 requires the submission of a claim is also borne out by other Rules of Court. Rule 75(1), for example, provides that: “Where the Chamber or the Committee finds that there has been a violation of the Convention or the Protocols thereto, it shall give in the same judgment a ruling on the application of Article 41 of the Convention if a specific claim has been submitte d in accordance with Rule 60 and the question is ready for decision”.

Substantive requirements and the different heads of just satisfaction

21 . The Practice Direction provides details regarding what falls under each head of just satisfaction and further explains the formal and substantive conditions to be met in relation to each one. [38]

22 . As regards pecuniary damage and costs and expenses, the applicant has to show that pecuniary damage has resulted from the violation [39] and that costs and expenses were actually and necessarily incurred and reasonable as to quantum. [40]

23 . Needless to say, fulfilling these substantive requirements is a condition for the award of just satisfaction under these heads. However, the very nature of what has to be proved, as demonstrated by the details in the Practice Direction and Rule 60, further underlines why the submission of actual claims is essential.

24 . As regards non-pecuniary damage, the head under which the majority of the Grand Chamber decided to exceptionally grant just satisfaction in the circumstances of the present case, the Practice Direction makes clear that the Court ’ s award is intended to provide financial compensation for non-material harm, for example mental or physical suffering. In addition, it indicates that, it is in the nature of non-pecuniary damage that it does not lend itself to precise calculation. This difficulty explains, in our view, the wording of Rule 60(3) discussed above, namely the fact that the Court may reject the claims in whole or in part if the requirements in paragraphs 1 and 2 of Rule 60 are not complied with. The “may” reject the claims refers specifically to the preceding Rule 60(2) and, in particular, to situations where the applicant has not or cannot submit itemised particulars. As the applicant in the instant case rightly points out, and the Court has accepted in other circumstances, it is impossible to put a price on the life of a child or to quantify the moral damage caused by other violations. [41]

25 . On the other hand, point 14 of the Practice Direction confirms the substantive requirement which must be fulfilled if non-pecuniary damages are to be awarded: “ If the existence of such damage is established, and if the Court considers that a monetary award is necessary , it will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law”. How, one must ask, is this substantive requirement to be fulfilled, in the context of proceedings which must be adversarial, if no claims for just satisfaction are submitted?

III – Competence of the Court in the absence of a just satisfaction claim

26 . If Article 41, the Rules of Court, the Practice Direction and the vast majority of the Court ’ s decisions on just satisfaction all clearly point to the absence of such an award by the Court in the absence of a claim submitted in accordance with the prescribed formal and substantive requirements, on what basis do the majority of the Grand Chamber decide to both confirm this mandatory procedural rule [42] and deviate from that rule in exceptional cases?

27 . The deviation is justified variously by the Cou rt ’ s role under Article 34 of the Convention to render justice in individual cases, [43] the legal obligation of States under Article 46 of the Convention to put an end to the breach and make reparation for its consequences, [44] the Court ’ s power under Article 41 of the Convention to award such satisfaction as appears to it to be appropriate, [45] the absence in that same provision of an indication as to formal conditions limiting the exercise of that discretion as well as the use of “may” in Rule 60(3) and “shall” in Article 41 itself, [46] the fact that, in several cases, the Court has awarded just satisfaction of its own motion, [47] the fact that, in some cases, it finds it appropriate to award no just satisfaction or to award it even if the applicant has not quantified the claim, [48] the fact that the guiding principle when awarding non-pecuniary damages is the principle of equity [49] and, finally, the fact that the primary application of the principle of ne ultra petitum in this field is to ensure that the Court itself does not raise the amount claimed by the applicant even if, in similar cases, it would normally award a higher amount. [50]

28 . While we entirely agree with the majority that both equity and flexibility have guided the Court in determining, in accordance with Article 41, the appropriate award to be made in the circumstances of a particular case, we would respectfully disagree with the majority as to when and how the Court ’ s discretion in this regard kicks in and subject to what it must be exercised. As indicated in paragraph 1 2 above, there is no doubt that Article 41 empowers the Court to make awards of just satisfaction. However, its power to do so is dependent on the factors listed in paragraph 11 and further conditioned by the Rules of Court outlined above. [51]

29 . In addition, it is important to examine more closely the authorities on which the majority rely in §§ 70 to 72. When the Court considered, in the cases cited in § 70, that the finding of a violation constituted sufficient just satisfaction, it was clearly exercising its discretion as per the terms “just” and “if necessary” in Article 41 of the Convention. Perhaps even more importantly, in all the cases listed in § 70, a claim for just satisfaction had been duly made such that Article 41 was engaged. When applying the principle of ne ultra petitum to limit the amount of the awards in the cases referred to in § 71 of the judgment, the Court was again examining just satisfaction claims which had been duly submitted. Similarly, as regards the cases cited in § 72, in all of them except one, Blesa Rodríguez , where the applicant had merely indicated his wish for compensation in the application form, the applicants in question had made duly submitted claims but had expressly left the amount to the discretion of the Court.

30 . As regards Article 41 of the Convention, first and foremost it must be established that the internal law of the respondent State only provides for partial reparation. [52] It is striking that this threshold condition is examined at the end rather than at the beginning of the majority judgment. [53] It features, in fact, as one of the two compelling considerations to determine whether the Court should make an award of just satisfaction in the absence of a duly made claim. [54] This sequence is questionable for this issue is, according to the terms of Article 41, the first which should be tackled before the Court exercises whatever power Article 41 confers on it. It is not an issue which falls to be determined when the Court is considering, in exceptional cases, whether to grant an award in the absence of a claim; it is a question the answer to which triggers the Court ’ s engagement with Article 41 in the first place.

31 . This leads us to one of the main points of disagreement we have with the majority. In essence, the latter consider that Article 41 of the Convention confers on the Court a power which, in certain exceptional cases, the Court can and should exercise regardless of express provisions conditioning the exercise of that power and its discretion in the Rules of Court. [55] While we entirely agree with the need for the Court to act flexibly and in accordance with the principle of equity, procedural rules are there to ensure that it will do so only where a claim for just satisfaction is duly made and subject to certain conditions. In other words, we agree with the existence of a discretion in the hands of the Court, we disagree regarding the moment when this discretion can be exercised and insist that it is circumscribed – as all discretions should be – by clear, coherent and accessible procedural (and substantive) rules. [56] The clarity of the Rules of Court – with which applicants need no longer comply in exceptional circumstances – and the clarity of the Court ’ s own case-law are both sacrificed. Indeed, jurisprudence interpreting and applying the Rules of Court is reduced to mere judicial practice; to be deviated from or overthrown as an individual case requires.

32 . The specific nature of Article 41 as lex specialis in relation to the general rules and principles of international law [57] does not mean that the European Court of Human Rights is absolved, qua human rights court, from observing the principle of ne ultra petitum . That would be an extraordinary proposition but it is one which, implicitly, underpins the majority judgment.

IV – Examination of the exceptional circumstances in which an award can be made in the absence of a claim

33 . Having decided to deviate from the prevailing case-law and the Rules of Court, the majority judgment then seeks to ensure that the Court “remains empowered to afford, in a reasonable and restrained manner , just satisfaction on account of non-pecuniary damage arising in the exceptional circumstances of a given case , where a ‘ claim ’ has not been properly made in compliance with the Rules of Court”. [58] It does so by trying to set out, on the one hand, the prerequisites for the exercise of this power and, on the other, the compelling considerations which must determine whether the Court actually makes an award in the absence of a duly made claim.

Prerequisites for applying the exception

( i ) Need for an express wish to receive compensation

34 . The first prerequisite relates to the fact that “the Court would attach particular importance to indications unequivocally showing that an applicant expressed a wish to obtain monetary compensation in addition to recognition of the violation of the Convention”. [59] In other words, it is preferable that the applicant indicate, presumably in his application, like the applicant in the instant case, that they wish to receive monetary compensation. However, as phrased, § 79 does not indicate either where this wish should be expressed, at what stage in the procedure and, if such a wish is not expressed, whether this will preclude or dissuade the Court from awarding compensation. It may do so but, the nature and scope of the discretion that the majority confer on the Court in the field of just satisfaction mean that it may not.

(ii) Need for the establishment of a causal link

35 . The next prerequisite is that it will be necessary in any event to establish a causal link between the violation and the non-material harm arising from the violation of the Convention. [60] This not only makes sense; it also reflects the Rules and established case-law. [61] However, as pointed out above, it is difficult to envisage, given circumvention of the procedural rules which seek to provide precisely for the establishment and verification of this crucial causal link, how this will be done. [62]

(iii) Need for an adversarial procedure

36 . This brings us to the next point, which is neither a prerequisite nor a compelling consideration – the need for an adversarial procedure and the difficulties which arise in this regard as a result of the absence of a duly made claim. [63]

37 . In § 77 of the Grand Chamber judgment, the majority stipulate that the exercise of the Court ’ s discretion under Article 41 should always take due account of the basic requirement of adversarial procedure. Again, this is entirely correct; but again, respect for the requirements of an adversarial procedure is precisely what the provisions of Rule 60 seek to ensure – an express, itemised, claim, duly made by the applicant in accordance with the relevant procedural rules and within a fixed time-limit (albeit extendable), with the possibility for the respondent State to comment on the claims and the receipt by the applicant of those comments. [64]

38 . By creating an exception to Rule 60 in exceptional cases, the Grand Chamber risks doing two things. On the one hand, the length of proceedings before the Court will grow ever longer, as will its workload. A judgment on the merits will have to be followed by a separate judgment addressing just satisfaction because the latter question wil l not, to use the terms of Rule 75(1), be ready for decision. An exchange of observations will have to take place to ensure that the procedure is adversarial and to avoid the non ‑ pecuniary award being, in the words of the respondent State in the instant case, arbitrary. [65] On average, it takes an additional 12 to 18 months for a separate Article 41 judgment to be handed down. Given the Court ’ s docket and its limited budget, this will involve time and resources that it cannot afford. In the instant case, in the absence of a claim at Chamber and Grand Chamber level, [66] it is difficult to contend that the procedure has been truly adversarial.

39 . On the other hand, the “divergent” strand of cases on which the Chamber and Grand Chamber rely to justify an award in exceptional circumstances concern certain States only. Will this differentiated approach to exceptional awards continue after the Grand Chamber judgment in the instant case? If the Nagmetov precedent means what was divergent merely becomes exceptional but can be applied across the board, will it be applied consistently or will the undefined principles of equity, flexibility and necessity on which the Court ’ s discretion relies lead to differences in the quantum of the award depending on the respondent State?

Compelling considerations which govern the exception

( i ) Particular gravity and impact of the violation and overall context of the case

40 . The first compelling consideration which will determine if the Court makes an award in the absence of a duly made claim relates to the particular gravity and impact of the violation of the Convention and the overall context of the case. Did the violation, for example, significantly harm the moral well-being of the applicant, otherwise seriously affect his or her life or livelihood or cause another particularly significant disadvantage. [67]

41 . This compelling consideration is interesting for a number of reasons. Firstly, the Grand Chamber provides for three cumulative conditions but attaches to these conditions not one, but two, illustrative lists of examples. The cumulative nature of the conditions is no doubt intended to restrict the circumstances in which the judicially-created exception applies. The use of “for example” and “for instance” is likely to have the opposite effect. Secondly, the terms of this compelling condition are quite loose and open-ended – violations of many different Convention articles in many different circumstances could come within these terms. Thirdly, it is noteworthy that the Grand Chamber did not accept the applicant ’ s invitation to pin the exception to the absolute nature of the right violated. This is both wise and worrying. It is wise because, as the majority themselves indicate, citing the violation of Article 8 of the Convention as a result of the proceedings leading to the adoption of the applicant ’ s daughter in X. v. Croatia , [68] the violation of qualified rights may also have an enormous and tragic impact – such as the loss of one ’ s own child in adoption or child custody cases (a form of living death for some parents). In the small number of cases where the Court has granted an award in the absence of a duly made claim, it has, more often than not, justified its departure from the Rules of Court with reference to the absolute character of the article of the Convention violated [69] or to the fundamental importance of the right at stake. [70] However, in some other cases, no such justification for the award is provided, the latter being simply tied to the particular circumstances of the case. [71] The breadth of the Grand Chamber ’ s language reveals the worrying aspect – namely, how difficult it will be for the Court to limit the parameters of its own judicially ‑ created exception. What will it do, for example, when faced with an Article 6 case resulting from child custody proceedings where what is at issue are due process rights with, however, in the background, the very real and tragic loss of access to children in a transnational custody dispute? [72] It is not difficult to envisage the exception becoming so broad that it will further consume the rule from which it was intended to only exceptionally deviate.

42 . The majority judgment seeks, in §§ 79 to 82, to circumscribe the judicial exception created and it is to be applauded in this respect. Unfortunately, although it tries to do so by extracting a pattern from the divergent case-law, we would respectfully argue that it will be difficult to ensure clarity, transparency and coherence in the case-law when the exception is subsequently applied. Furthermore, some possible grounds for delimiting the scope of the exception are notable by their absence. Of relevance could be the fact that an applicant was not legally represented, [73] was considered particularly vulnerable [74] or was the victim of a double violation of an article having an absolute or fundamental character. [75] While the vulnerability criterion might be an excessively fluid and subjective one, the other two are objective and easily verifiable.

(ii) Provision of reparation under domestic law

43 . This compelling consideration was examined previously (see paragraph 30 above), where we questioned whether a consideration which determines whether Article 41 is triggered in the first place can also serve as a consideration delimiting when the judicially-created exception to the just satisfaction rule applies.

V – Consequences of and alternatives to the Grand Chamber ’ s decision

44 . The first consequence of the Grand Chamber ’ s judgment is likely to be, as indicated above, an increase in legal uncertainty. Even though the Court now confirms the divergent case-law which has allowed for the award of just satisfaction in exceptional cases in the absence of a specific claim, the terms delimiting the scope and application of this judicially-created exception may not be sufficiently clear and foreseeable for the reasons explained above. One might expect divergence as regards reliance on the exception, divergence as regards the quantum of damages which result from its application and even divergence as regards the respondent States with reference to which it is said to apply in the circumstances of each case. It is also striking that the majority judgment is framed in terms of the exceptional award by the Court of “just satisfaction” in the absence of a specific claim, but there is no discussion as regards whether this exception applies exclusively to non-pecuniary damage, the head at issue in the instant case. Paragraphs 69, 72-73, 79-80, 81, 83 and 92 of the majority judgment seem to limit the exception to the award of just satisfaction under that head but the reasoning of the majority in the remainder of the judgment refers to just satisfaction in general and, as such, to all three heads. While the applicant claimed neither moral damage nor costs and expenses, application of the requirements of the Rules of Court was suspended as regards the first omission but not as regards the second. [76]

45 . The second consequence is even broader. It relates to compliance with the Rules of Court and the circumstances in which they – and the Practice Directions which clarify them – can be circumvented by the parties. A central tenet of the Court ’ s case-law on Article 6 of the Convention is that domestic rules governing the formal steps to be taken and the time-limits to be complied with in lodging court documents are aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty. The Court has repeatedly signalled to litigants that they should expect those rules to be applied. [77] Why would the Court, given this case-law, choose to undermine its own procedural rules in the manner outlined above? What the Court has found wanting under Article 6 are national rules which, in themselves, are excessively formalistic or which are applied by the authorities with excessive formalism. [78] However, it can hardly be argued, in the instant case, that the Rules of Court were applied in an excessively formalistic manner. The applicant, who was legally represented, was informed that a wish for compensation expressed in his application form did not suffice and that a specific claim had to be submitted. The procedure for submitting a claim was explained and a deadline set. When this deadline was not respected, it was extended by the President of the Section but still not respected.

46 . It is also worth reflecting on the fact that the Grand Chamber, confronted as it was in this case with a large body of case-law against an award and a divergent, minority, strand of case-law in favour, had at its disposal an alternative. It could have upheld its prevailing case-law, confirming and clarifying for the future that the Rules of Court required the submission of a specific claim for an Article 41 award to be made, while highlighting why, in certain exceptional cases, the Rules as they stand at present fall short of what the Convention system requires. Since the Court, perhaps unique amongst international courts, possesses exclusive competence to adopt and amend the Rules of Court by virtue of Article 25(d) of the Convention, the plenary could have subsequently amended those rules and, specifically, the problematic Rule 60(3), if required. It is suggested that such a path, involving the drafting of procedural rules by a Court committee specialised in that field, their submission for observations to the High Contracting Parties and others and their approval by the plenary court and not a Grand Chamber formation representing a fraction of the Court, would have allowed for the establishment of clearer procedural rules while preserving the integrity of the Rules of Court more generally. A question of judicial and procedural policy would have been addressed in the appropriate forum and not with reference to the circumstances of an individual case. [79]

47 . The circumstances of the present case are, unquestionably, tragic. The respondent State ’ s responsibility for the loss of life of a young man and its failure to investigate effectively the circumstances surrounding his death are the subject of a unanimous Chamber judgment, confirmed unanimously by the Grand Chamber. Nevertheless, it behoved the latter to introduce certainty where it presently lacks and to look beyond the individual circumstances of this case and this applicant. For the legal reasons outlined in detail above, we respectfully disagree with the Grand Chamber ’ s findings on just satisfaction, however humane an award of monetary compensation may appear to be in the tragic circumstances of a case like this.

[1] . See Rule 60 § 1: “… must make a specific claim to this effect.”

[2] . See paragraph 52 of the judgment: “I did not specify the amount because I could not at the time and cannot now ‘put a price’ on my son’s life, since it is without price.”

[3] . See the case-law cited in paragraph 59 of the judgment. As indicated below, we do not necessarily agree with the finding that no claim had been made in these cases; however, we do agree with the conclusion that, where no claim has been made, no award can be granted.

[4] . For applications of this principle in the case-law on Article 41 of the Convention, see, among other authorities, Ilyushkin and Others v. Russia , nos. 5734/08 and 28 other , § 76, 17 April 2012; Pacifico and Others v. Italy , nos. 34389/02, 34390/02, 34392/02 and 34458/02 , § 44, 15 November 2012; Neshkov and Others v. Bulgaria , nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13 , § 301, 27 January 2015; Identoba and Others v. Georgia , no. 73235/12 , § 110, 12 May 2015; and Kavaklıoğlu and Others v. Turkey , no. 15397/02 , § 301, 6 October 2015.

[5] . See also Rule 75 § 1: “Where the Chamber or the Committee finds that there has been a violation of the Convention or the Protocols thereto, it shall give in the same judgment a ruling on the application of Article 41 of the Convention if a specific claim has been submitted in accordance with Rule 60 …”

[6] . See on this point also the joint dissenting opinion, § 20.

[7] . We note that this idea was clear in the original wording of Rule 60 § 2, adopted in 1998 and in force until the amendment of Rule 60 on 13 December 2004: “ Itemised particulars of all claims made, together with the relevant supporting documents or vouchers, shall be submitted, failing which the Chamber may reject the claim in whole or in part.”

[8] . It is true that Rule 60 § 3 refers to the “preceding paragraphs”, including paragraph 1. This does not mean, in our opinion, that it also applies to the situation where no claim at all has been made. It can indeed apply to a situation where a claim has been made, but where this claim is, for instance, insufficiently “specific” (and where particulars of it have not subsequently been furnished ).

[9] . See, among other authorities, X v. Latvia [GC] , no. 27853/09 , § 122, ECHR 2013, and Nusret Kaya and Others v. Turkey , nos. 43750/06, 43752/06, 32054/08, 37753/08 and 60915/08, § 91, ECHR 2014 (extracts).

[10] . See, among other authorities, K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004 ‑ III; Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, § 194, 3 October 2008; and Murray v. the Netherlands [GC] , no. 10511/10 , § 88, ECHR 2016.

[11] . See V.M. and Others v. Belgium [GC], no. 60125/11, § 39, 17 November 2016.

[12] . The case-law cited by the majority does not prove the existence of such a practice. In Lupeni Greek Catholic Parish and Others v. Romania ( [GC], no. 76943/11, § 176, ECHR 2016 (extracts)) reference is made to a letter sent to the applicants telling them “that they were not required to amend the claims”. Obviously that does not mean that they were not allowed to amend the claims. In Schatschaschwili v. Germany ([GC], no. 9154/10, § 167, ECHR 2015) it is only noted that the applicant “did not make any claims for just satisfaction in his observations.” In Khan v. Germany ([GC], no. 38030/12 , § 45, 21 September 2016) it is noted that “the applicant was informed that her claims in respect of just satisfaction before the Chamber would be taken into account”.

[13] . See the j oint dissenting opinion, § 46.

[14] . See the j oint dissenting opinion, §§ 33-43.

[15] . The majority identify as “compelling considerations” the “particular gravity and impact of the violation, and [ the ] overall context of the case” and the “unavailability or partial availability of adequate reparation at domestic level”. It is these circumstances that, according to the majority, justify setting aside the otherwise obligatory rules. While the former criterion has to be taken into account in determin ing the amount to be awarded in respect of non-pecuniary damage, the latter is an essential precondition for an award as already explicitly stated in Article 41.

[16] See § 47 and point 1 of the operative part of the Grand Chamber’s judgment.

[17] A claim which has not been duly submitted refers to different circumstances – failure to submit a claim at all, failure to submit a claim despite having indicated in the application form that the applicant wished to receive compensation or failure to respect the deadlines established in the Rules of Court.

[18] See, in this regard, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 176, ECHR 2006; and Salah v. Netherlands , no. 8196/02, § 70, ECHR 2006-IX (extracts).

[19] See, for a general discussion of Article 41, O. Ichim , Just Satisfaction under the European Convention on Human Rights , CUP, 2015, in particular, pp. 173- 1 75; J. Laffranque, “Can’t Get Just Satisfaction” (2014) in A. Seibert- Fohr and M. E. Villiger (eds.): Judgments of the European Court of Human Rights – Effects and Implementation , Ashgate , p. 82; K. Reid, “A Practitioner’s Guide to the European Convention on Human Rights” (2 nd edn . 2002) Thomson, Sweet & Maxwell , p. 546.

[20] See below § 46 of this Opinion .

[21] See §§ 41-42 of the majority judgment.

[22] See, for the elucidation of these conditions, De Wilde, Ooms and Versyp v. Belgium (Article 50), judgment 10 March 1972, Series A no. 14, § 21.

[23] Note also the use of “empowers” in § 57 of the majority judgment and in Grand Chamber judgments such as Karácsonyi v. Hungary , no. 37494/02, § 179, 18 April 2006 and O'Keeffe v. Ireland [GC], no. 35810/09, §199, 28 January 2014. See also point 1 of the Practice Direction on just satisfaction claims, issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 28 March 2007: “1. The award of just satisfaction is not an automatic consequence of a finding by the [ECtHR] that there has been a violation of a right guaranteed by the [ECHR] or its Protocols. The wording of Article 41, which provides that the Court shall award just satisfaction only if domestic law does not allow complete reparation to be made, and even then only “if necessary” ( s’il y a lieu in the French text), makes this clear.”

[24] Article 41 of the Convention was inspired by Article 10 of the German Swiss Treaty on Arbitration and Conciliation of 1921 and Article 32 of the Geneva General Act for the Pacific Settlement of International Disputes of 1928. Note that Articles 24(1) and 25(d) of the Convention indicate that the Court shall have a registry whose functions and organisation shall be laid down in the rules of the Court and that the plenary court is competent to adopt the latter (see De Wilde, Ooms and Versyp , cited above, § 16). On the exclusive competence of the Court to adopt, and amend, its own procedural rules and the alternative route this provided the Court to resolve a case su ch as this, see below paragraph 46.

[25] Pursuant to Article 34 of the Convention, the Court may receive individual applications and, pursuant to Article 35 it shall not deal with certain types of applications or applications in certain circumstances. These bare rules are further clarified and conditioned by the Rules of Court – not least Rules 38 and 47 – and by the Practice Directions on the institution of proceedings and on written pleadings. These rules are applied rigidly and formalistically by the Court and failure to comply with them lead to thousands of complaints not being examined every year.

[26] See further, for example, the analysis of the different heads in Neumeister v. Austria (Article 50), judgment of 7 May 1974, Series A no. 17, §§ 40-43; and, as regards Article 41, Lechoisne and Others v. France , no. 61173/00, § 28, 17 June 2003: “ Under Rule 60 § 2 of the Rules of Court, t he applicant s must submit itemised particulars of all claims under Article 41 of the Convention , together with any relevant supporting documents, failing which the Court may reject the claims in whole or in part ” (emphasis added).

[27] See Article 75 of the Rome Statute of the International Criminal Court, adopted 17 July 1998, entered into force 1 July 2002, 2187 UNTS 90.

[28] See also Cyprus v. Turkey ( J ust satisfaction), no. 25781/94, § 42, 12 May 2014 .

[29] See further § 46 below

[30] Andrea Corsi v. Italy (Revision), no. 42210/98, § 12, 2 October 2003, emphasis added. See also Sykora v. Slovakia , no. 26077/03, §§ 31-32, 18 January 2011; Fadil Yilmaz v. Turkey , no. 28171/02, §§ 26-27, 21 July 2005; and Chiorean v. Romania , no. 20535/03, §§ 31-34, 21 October 2008. The need to respect deadlines is emphasised by Rule 38(1), Rule 60 and by the Practice Direction.

[31] Sunday Times v. United Kingdom (Article 50), no. 6538/74, § 14, 6 November 1980. See also Francesco Lombardo v. Italy , judgment of 26 November 1992, Series A no. 249-B, § 25; or Nasri v. France , no. 19465/92, § 49, A 320-B, 1995.

[32] Schatschaschwili v. Germany  GC  , no. 9154/10, §§ 166- 1 70, 15 December 2015. The applicant had specified the amount of compensation sought both in his application form and orally before the Grand Chamber. His failure to comply with the requirements of Rule 60 despite, as in the instant case, clear instructions from the Court’s registry and legal representation, led to the Court making no award.

[33] For the requirement that a procedure be adversarial see, for example, Brandstetter v. Austria , judgment of 28 August 1991, Series A no. 211, p. 27, § 67 and Vermeulen v. Belgium , judgment of 20 February 1996, Reports 1996-I, p. 234, § 33 .

[34] The letter received by the applicant’s representative in the instant case reflects the standard and established practice under the Rules of Court. See Willekens v. Belgium , no . 50859/99, § 27, 24 April 2003. Note also that, pursuant to Rule 37(1), communications or notifications addressed to the agents or advocates of the parties shall be deemed to have been addressed to the parties.

[35] This equivocal language only reappears in one other place, point 5 of the Practice Direction: “Thus, the Court requires specific claims supported by appropriate documentary evidence, failing which it may make no award” . However, the same point continues: “The Court will also reject claims set out on the application form but not resubmitted at the appropriate stage of the proceedings and claims lodged out of time.” The contrast between the two sentences may mean that the failure referred to in the first sentence is a failure to submit appropriate documentary evidence. In other words, the failure to itemise (possibly fatal) is distinguished from the failure to submit (fatal).

[36] See §§ 67 (reliance on the use of “ may ” in Rule 60(3)), 74 (reliance on the use of “shall” in Article 41) and 76 of the majority judgment (reliance on the fact that Article 41 is a norm of a higher hierarchical value than the Rules of Court).

[37] See also Ichim , cited above , pp. 52 and 77, who observes, respectively, that “Cases of a victim-oriented approach supported by ultra petita awards of reparation are relatively scant” and “the Court refrains not only from making ex officio awards, but also from ruling ultra petita ”, albeit he proceeds, on p. 77, to detail some examples from the divergent strand of case-law on which the majority rel y and which they today confirm.

[38] See points 10-12 of the Practice Direction on pecuniary damage, points 13-15 on non ‑ pecuniary damage and points 16-21 on costs and expenses.

[39] See, for example, for no award of pecuniary damage where the causal link could not be established, inter alia , Saunders v. United Kingdom , no. 19187/91, § 86, 17 December 1996; Coëme and Others v. Belgium , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 155, ECHR 2000-VII; an d Saadi v. Italy [GC], no. 37201/06, §187, ECHR 2008-II.

[40] See, for example, Sunday Times v. United Kingdom (Article 50), cited above, § 23 and Jalloh v. Germany [GC], no. 54810/00, §133, ECHR 2006-IX .

[41] The Practice Direction recognises this – applicants who wish to be compensated for non-pecuniary damage are “invited” to specify a sum which in their view would be equitable – as does the Court’s case-law. The Court has made awards where the applicants have failed to quantify the amount, “leaving it to the Court’s discretion”. The case-law of the Court also recognises this. See, for example, the authorities cited at § 72 of the majority judgment. It is important to stress, however, that with the exception of the applicant in Blesa Rodríguez v. Spain , no. 61131/12, 1 December 2015, who had indicated a wish for compensation only in the application form, all other applicants listed had submitted a claim but had asked that the decision on quantum be at the discretion of the Court.

[42] See §§ 59 and 75 of the majority judgment.

[43] Ibid., § 64.

[44] Ibid., § 65.

[45] Ibid., § 66.

[46] Ibid., §§ 67 and 74.

[47] Ibid., § 69.

[48] Ibid., §§ 70 and 72.

[49] Ibid., § 73.

[50] Ibid., § 71.

[51] The Court has generally referred to the fact that it enjoys a “ certain discretion in the exercise of the power conferred by Article 50  Article 41  ” a fact borne out by the expressions “just” and “if necessary” – see, for example, Guzzardi v. Italy , no. 7367/76, § 114, 6 November 1980 and Perdigao v. Portugal  GC  , no. 24768/06, § 85, 16 November 2010. In addition, it has recognised that its jurisdiction under Article 41 of the Convention is limited: see variously Velikova v. Bulgaria , no. 41488/98 § 96, ECHR 2000-VI; Philis v. Greece (No. 1), judgment of 27 August 1991, Series A no. 209, p. 27, § 79; and Allenet de Ribemont v. France , judgment of 7 August 1996, Reports 1996-III, p. 910, §§ 18-19 (where it reminded the Commission not only of the bounds established by the Rules of Court but also of the limits to its own contentious jurisdiction under the Convention).

[52] For an analysis of the origins of this threshold condition and some of the difficulties it raises see the partly concurring opinion of Judge Zupancic in Lucà v. Italy , no. 33354/96, ECHR 2001-II.

[53] See §§ 88-91 of the majority judgment.

[54] Ibid., § 82 .

[55] On the under-defined concept of necessity see Ringeisen v. Austria (Article 50), judgment of 22 June 1972, Series A no. 15 , § 22, where the Court indicated that just satisfaction is necessary where the respondent Government has refused the applicant the reparation to which he considered himself entitled.

[56] See, in support of our interpretation, point 14 of the Practice Direction. See also the joint concurring opinion of Judges Nussberger and Lemmens ( § 4) on this same point of fundamental divergence.

[57] See Cyprus v. Turkey (Just Satisfaction), cited above, § 42.

[58] See § 76 of the majority judgment, emphasis added.

[59] Ibid., § 79 .

[60] Idem.

[61] See Andrejeva v. Latvia  GC  , no. 55707/00, § 111, 18 February 2009: “the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link  …  and this is also true of non-pecuniary damage”.

[62] See Rule 60(1), (2) and (4), as further clarified in the Practice Direction.

[63] See above § 18 for the comments on Rule 60(4).

[64] See the description of the provisions and operation of Rule 60 in §§ 15-20 above.

[65] See § 55 of the majority judgment.

[66] See §§ 60-63 of the majority judgment. Before the Grand Chamber, the applicant’s representative invited the latter simply to affirm the Chamber judgment but , as indicated in § 52 of the majority judgment, submitted no further claim for just satisfaction under any of the three heads.

[67] See § 81 of the majority judgment.

[68] See X. v. Croatia no. 11223/04, §§ 61-63, 17 July 2008.

[69] See, for example, Mayzit v. Russia , no. 63378/00, § 88, 20 January 2005; Igor Ivanov v. Russia , no. 34000/02, § 50, 7 June 2007; Babushkin v. Russia , no. 67253/01, § 62, 18 October 2007; Chember v. Russia , no. 7188/03, § 77, 3 July 2008; Chudun v. Russia , no. 20641/04, § 129, 21 June 2011; and Boordin v. Russia , no. 41867/04, § 166, 6 November 2012 , which all concerned violations of Article 3 of the Convention by the Russian Federation.

[70] See, for example, Rusu v. Austria , no. 34082/02, § 62, 2 October 2008; and Crabtree v. the Czech Republic , no. 41116/04, § 60, 25 February 2010, which pointed to the fundamental importance of the Article 5 rights violated. See also Kats v. Ukraine , no. 29971/04, 18 December 2008, which concerned Article 2 and in which a claim had been submitted albeit out of time. The Court made an award for non-pecuniary damage due to the “fundamental character” of the right in Article 2.

[71] See, for example, Davtyan v. Georgia , no. 73241/01, § 71, 27 July 2006.

[72] See, for example, Henrioud v. France , no. 21444/11, 5 November 2011, where in a case involving loss of child custody and access to the applicant’s children, the Court merely found a violation of Article 6(1) of the Convention due to the excessive formalism of the French courts. See also, in the context of Article 8, Yusopova v. Russia , no. 66157/14, 20 December 2016.

[73] See, for example, Dorogaykin v. Russia , no. 1066/05, §§ 48-49, 10 February 2011.

[74] See, for example, Neshkov and Others v. Bulgaria , nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, § 84, 27 January 2015.

[75] See, for example, Bursuc v. Romania , no. 42066/98, 12 October 2004 and Chember , cited above, although the Court did not explicitly say this fact was relevant to its decision to award damages in the absence of a duly submitted claim.

[76] In the absence of a claim for costs and expenses, the Court declares itself barred from awarding them – see § 93 of the majority judgment.

[77] See, inter alia , Miragall Escolano v. Spain , nos. 38366/79 et seq., § 33, 25 January 2000; Tricard v. France , no. 40472/98, § 29, 10 July 2001; and Marc Brauer v. Germany , no. 24062/13, §§ 34 and 42, 1 September 2016. See also, the recent Grand Chamber decision in V.M. and others v. Belgium [GC] (Striking Out), no. 60125/11, § 35, 17 November 2016, which referred to the Rules of Court and the requirement , in the interests of the proper administration of justice, that applicants and their representatives stay in touch during the proceedings before the Court.

[78] See, for example, Marc Brauer , cited above, § 43.

[79] See also the joint concurring opinion of Judges Nussberger and Lemmens (§ 18).