DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

In its judgment of 5 November 1981 on the merits of the present case, the Court found that there had been a violation of Article 5 § 4 (art. 5-4) of the Convention. In my opinion, the estate of the applicant X is entitled under Article 50 (art. 50) to satisfaction for non-material damage caused to X as a consequence of this breach.

As stated in paragraph 12 of the ju dgment to which this opinion is annexed, the case has been pleaded on the assumption that a claim for just satisfaction under Article 50 (art. 50) vested in a deceased person may survive for the benefit of his estate. In my view, this will be so at least in circumstances where, as in the instant case, the deceased person has raised the claim during his own lifetime. In his application form to the Commission dated 26 April 1975 , X described the object of his complaint as including financial compensation as well as reform of the relevant domestic law. This being so, I am of the opinion that in so far as X, if still alive, would have been entitled to financial compensation by way of just satisfaction under Article 50 (art. 50) of the Convention, such compensation should now be paid to his estate, in accordance with the claim put forward on its behalf.

The file in the present case includes several letters written by the applicant to his legal advisers in the spring and summer of 1974. This correspondence discloses that X was distressed at his situation.

His letters to the Commission dated 14 July 1974 and 23 November 1975 shed further light by showing that at least some of that distress was caused by an awareness of the inadequacies of the legal remedies available to him to challenge the lawfulness of his detention. In these two letters, he linked "mental distress" and "a sense of grievance" with the fact that a recalled patient such as himself could "seek no relief through judicial scrutiny, even the ancient prerogative of habeas corpus [being] powerless to assist".

In a case such as X ’ s, the evidence on non-material damage adduced by the "injured party" himself is bound to be of primary importance. Furthermore, in the particular circumstances non-material damage can be presumed to have been caused by reason of the very nature of the breach in question. Taking this into account together with the above-cited material in the case-file, my conclusion is that just satisfaction, in the form of financial compensation, should be afforded under Article 50 (art. 50) for non-material damage.

The majority of the Court has rejected the claim put forward on behalf of the applicant ’ s estate for financial compensation for damage caused by the breach of Article 5 § 4 (art. 5-4). As I am in a minority of one on this point, I find it unnecessary to develop my arguments further.

[*]  In this volume, the Rules of Court referred to are those in force at the time proceedings were instituted.  These Rules have since been replaced by a revised text that came into operation on 1 January 1983 , but only in respect of cases brought before the Court after that date.