JOINT SEPARATE OPINION OF JUDGES HOLMBÄCK, ROSS AND WOLD

Although we concur in the decision rend ered by the Court we regret not to be able to agree with the reasons given for this decision on a particular point, namely the interpretation of Article 50 (art. 50) of the Convention in paragraph 20 of the judgment.

It is a well known fact that this A rticle (art. 50) is modelled on clauses found in a number of arbitration treaties, e.g. the German-Swiss Treaty of Arbitration and Conciliation, 1921, Article 10, and the Geneva General Act for the Pacific Settlement of International Disputes, 1928, Article 32 (see, for example, Heribert Golsong , Das Rechtsschutzsystem der Europäischen Menschenrechtskonvention (1958), p. 106). These clauses were inserted to deal with the situation that a State, although willing enough to fulfil its international obligations, for constitutional reasons is unable to do so without changing its Constitution. They confer on the arbitral tribunal the power to transform this obligation into an obligation to pay to the injured party an equitable satisfaction of another kind.

We assume that Article 50 (art. 50) s erves the same purpose as these model clauses and that it should be interpreted accordingly. On this basis it is obvious that the article according to its wording does not apply to the cases before the Court.

It appears from the wording of Article 50 (art. 50) that this article applies only under the condition that "the internal law of the said Party", i.e. the Party who has taken a decision or measure completely or partially in conflict with the obligations arising from the Convention, "allows only partial reparation to be made for the consequences of this decision or measure". Such reparation must in the present cases consist in the paying of compensation for damages, if any, incurred by the applicants as a consequence of the fact that their detention was ordered in contravention of Article 5 (4) (art. 5-4) of the Convention. The applicants themselves assess their claim for compensation in the amount of 300 BF for each of them per day of unlawful detention.

So the question arises, whether or not internal Belgian law allows the Belgian State to make full reparation in the sense of paying full compensation to the applicants as claimed, assuming that their claim is well-founded. In our opinion the applicants have afforded no proof that Belgian law does not allow full reparation to be made, whereas the Belgian Agent has convincingly argued that Belgian law provides remedies for the granting of full compensation. It follows that the said condition for the application of Article 50 (art. 50) is not fulfilled.

The reasoning of the judgment in paragraph 20 is to the effect that although according to its wording Article 50 (art. 50) covers only situations in which the impossibility of making full reparation is due to the law of the State that has contravened the Convention, common sense suggests that the article a fortiori must apply also where the impossibility of restitutio in integrum follows from the very nature of the injury. This argument is, in our opinion, unsound. It presupposes that there is an absolute obligation on the State to restore to the applicants the liberty of which they have been deprived. But this cannot be so because of the maxim impossibilium nulla est obligatio.

The judgment operates with two hypothet ical situations, the one "where the nature of the injury would make it possible to wipe out entirely the consequences of a violation" and the other where the very nature of the injury makes restitutio in integrum impossible. The Court sees no reason why "in the latter case just as in the former" the Court should not have the right to award just satisfaction. Of course the Court has the same right in both cases. But in both cases the competence of the Court is dependent upon the fact that the internal law does not allow full reparation. The consequences of a violation can never "be wiped out entirely". This criterion, which is completely alien to the text of Article 50 (art. 50) can only give rise to doubt and uncertainty. But even more serious is the fact that the judgment leads to the Court in fact assuming jurisdiction in respect to claims for reparation in all cases where full restitutio is impossible, regardless of the state of the internal law.

Our interpretation of Article 50 (art. 5 0) is in complete harmony with other provisions of the Convention and with the general ideas inherent in it concerning the enforcement of the obligations it imposes.

Thus, Article 5 (5) (art. 5-5) provi des that "everyone who has been the victim of arrest or detention in contravention of this Article shall have an enforceable right to compensation". This provision clearly directs the injured party to seek redress in the courts of the State which has committed the contravention. More generally, Article 13 (art. 13) provides that "everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity". It would, indeed, be astonishing and disharmonious if Article 50 (art. 50), alongside this reference to national remedies, instituted a concurrent means of redress by direct application to this Court.

Further, in Article 53 (art. 53) the High Contrac ting Parties have undertaken to abide by the decision of the Court in any case to which they are parties. And in Article 54 (art. 54) it is provided that the judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution.

The general idea behind these various provisions obviously is that the Convention relies on the Contracting Parties to fulfil their obligations according to the Convention voluntarily by means of decisions and measures taken within their domestic jurisdiction. Relying on this willingness of the Contracting Parties to comply in good faith with their obligations, the general rule is that a party claiming to be injured must seek redress before the national courts and not before the European Court of Human Rights. There is one exception: if the national law of the State prevents it from making full reparation Article 50 (art. 50) confers on this Court the power to afford just satisfaction to the injured party.

For these reasons we hold that Article 50 (art. 50) does not apply in the cases now before the Court from which it follows that the Court lacks jurisdiction to deal with the applicant ’ s claims.