PARTIALLY DISSENTI NG OPINION OF JUDGE MATSCHER

(Translation)

I do not usually express dissenting opinions with regard to the Court's decisions on Article 50 (art. 50), in view of the fact that the sums which the Court awards under that provision (art. 50) on an equitable basis can always be the subject of disagreement.  The reason why I have done so in the present case is that the Court's decision to award the applicant ATS 200,000 for pecuniary damage is clearly unsustainable.

Where the Court finds a violation of the Convention and the violation in question causes the victim pecuniary damage, it has the power under Article 50 (art. 50) to award just satisfaction.  Although it is hardly ever possible to assess the amount of such damage precisely - which is not in any case the Court's task - the sum awarded for pecuniary damage must never exceed the amount of damage that the applicant can actually have sustained.

In the present case the Court found a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1) (a finding which I am in complete agreement with) on account of the fact that the applicant, because of his nationality, was not entitled to emergency assistance under the legislation in force.  But emergency assistance, as the term clearly implies, is not a pension for life, but a temporary social measure for a period when the beneficiary is available for work but unemployed and not (yet) entitled to an invalidity or old-age pension.

As a result of the finding of a violation of the Convention, the applicant is entitled to be compensated on an equitable basis under Article 50 of the Convention (art. 50) for any pecuniary damage he may have sustained.

Under the law in force at the material time, emergency assistance amounted (with varying supplements) to approximately ATS 255 per day.  It appears from the file that, however the sums are calculated, and accepting the hypotheses most favourable to the applicant (unrealistic though they are), the maximum amount he could have received in emergency assistance was about ATS 80,000.  The sum of ATS 200,000 which the Court has awarded him is more than twice as high as the pecuniary damage he can possibly have sustained; that is manifestly contrary to all the principles governing compensation for pecuniary damage, unless the Court wishes to adopt the practice which exists in American law of awarding "punitive damages".  That practice is rightly not provided for in European law.

The calculation and compensation claims put forward by the applicant's lawyer and the Turkish Government are so fantastic that it is superfluous to comment on them.

The background to the whole case is a typical instance of abuse of the Welfare State, a very widespread trend in all our societies and one - I would point out - by no means limited to foreign workers.

It is regrettable that the Court, by awarding disproportionate amounts of compensation, should reinforce this trend.

[1] The case is numbered 39/1995/545/631.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning the States bound by Protocol No. 9 (P9).

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-IV), but a copy of the Commission's report is obtainable from the registry.