SEPARATE OPINION OF JUDGE VERDROSS

(Translation)

I am in agreement with the Court ’ s judgment but would like to add some general remarks on the interpretation of Article 50 (art. 50) of the Convention.

Under this provision the Court, after finding that the Convention has been violated, may "if necessary" afford "just satisfaction to the injured party", "if the internal law" of the respondent State "allows only partial reparation to be made for the consequences" of the act that was held to be contrary to the Convention.

It clearly follows from the French te xt (" si le droit interne ... ne permet qu ’ imparfaitement d ’ effacer les conséquences ") - as from the English text - that before it may make a decision on just satisfaction the Court must enquire whether the injured person can obtain adequate compensation by taking appropriate steps under the internal law of the respondent State.

If the Court comes to the conclusi on that this question should be answered in the affirmative it seems to me that it is in accordance with the spirit and general system of the Convention for the Court first to allow the respondent State the option of granting the injured party adequate compensation under its own procedure. By acting in this way the Court retains its jurisdiction to assure itself that this satisfaction is provided in an adequate manner and within a reasonable time to be fixed by the Court.

It is true that one might counter this line of argument by saying that the respondent State could settle the matter with the injured party immediately after the judgment in which the Court found that the Convention had been violated. This solution, however, would seem to me to overlook the fact that in order to have legally adequate satisfaction there must always be impartial judicial proceedings. If, therefore, the respondent State makes such proceedings available to the injured party it has done all it can at the beginning to make reparation for the consequences of the violation of the Convention.

The need for the Court to give in the f irst place the respondent State the option of affording the injured party adequate satisfaction through its own courts is felt especially at the initial stage of the application of Article 50 (art. 50): on the Court ’ s interpretation of this provision will depend the legislative measures which the States will have to take in order to comply with this interpretation.

SEPARATE OPINION OF JUDGE MOSLER

(Translation)

I agree with the whole of the judgment. I would, however, like to add some remarks as to the scope of the Court ’ s jurisdiction in connection with the obligation of the State concerned to make reparation through its own law and through its internal administrative and judicial procedures for the consequences of the violation imputed to it. In the present cases, the Court rightly remarked that it was not necessary to refrain from taking a decision until the applicants had applied for compensation to a Belgian court (see paragraph 20 in fine of the judgment). However, the relevant part of the judgment does not state whether the Court drew this conclusion merely from the twofold fact that in the three cases before it restitutio in integrum was impossible (paragraph 20) and that no pecuniary loss or moral damage could be found (paragraph 24) or whether it considered generally that Article 50 (art. 50), in referring to the internal law of the State in question, covers only the cases in which restitutio in integrum is possible and those where it is excluded by the very nature of the violation. It thus remains uncertain whether the Court should take the internal law into consideration in other situations where neither of these two last hypotheses applies.

I should like to explain the interpreta tion of Article 50 (art. 50) on which I have relied in concurring in this part of the reasons set out in the judgment.

1. In my opinion, Article 50 (art. 5 0) constitutes the basis of the Court ’ s jurisdiction in all cases - including those mentioned in Article 5 (4) (art. 5-4) - where just satisfaction (" une satisfaction équitable ") is claimed by an applicant whose case before the European Commission of Human Rights has finally terminated in a decision by the Court establishing that the State in question has violated the Convention.

2. In all cases where the Court finds that there has been a violation resulting from a decision or measure taken by an authority of a High Contracting Party the Court must, in the very words of Article 50 (art. 50), enquire whether the internal law of the said Party allows reparation to be made for the consequences of this decision or measure. This conclusion is essential on account of the broad wording used in the text as well as its intrinsic meaning.

3. It follows by implication fro m Article 50 (art. 50) that the obligation imposed on the High Contracting Parties by Article 53 (art. 53) of the Convention to abide by the decision of the Court includes a duty to make reparation for all the consequences which the violation has caused to the applicants whose complaint has led to the Court ’ s judgment. This duty is therefore not limited to putting an end to the violation: it also extends to making good the damage suffered by the applicants. Although the duty to make good the damage resulting from an injury which has been established by the decision of an international court derives from general international law, it was necessary to confer expressly upon the Court, by a clause in the European Convention on Human Rights, jurisdiction to grant satisfaction to the person injured. Since the applicant is not party to the proceedings before the Court, the object of those proceedings, strictly speaking, is not the damage suffered by him but the violation of the Convention alleged against the respondent State. It follows that the effects of the judgment relate only to the finding of a violation; they do not extend to the consequences which the violation has involved for the person concerned. It was thus necessary to confer on the Court an additional jurisdiction enabling it in special circumstances to afford just satisfaction.

4. The first question to be investigated by the Court when app lying Article 50 (art. 50) is therefore to determine exactly what these consequences are: the measures to be taken to ensure as complete a reparation as possible will depend on the answer to this question.

5. These measures will vary according to the nat ure of the damage suffered.

(a) If the nature of the violation allows of restitutio in integrum it is the duty of the State held liable to bring this about. For example, the consequences of an expropriation which has been declared unlawful by the Court must be wiped ou t by restoring the expropriated property. The Court has neither the jurisdiction nor the practical means to do this itself. If in such a case the national law only allows partial restitutio in integrum to be made, it is the Court which has to afford just satisfaction for those consequences of the injury for which it has not been possible to make reparation. It is for the Court to assess the effectiveness of the national law in this matter.

(b) If the nature of the injury prevents any rest itutio in integrum, for example because the violation involved facts the effect of which cannot be retroactively removed, the violation may also have involved other consequences for which, by their nature, reparation can be made. Thus, the victim of a violation may have suffered pecuniary loss through having lost an opportunity of finding employment or by having had to pay his lawyer. It may likewise happen that equity demands that he should be granted compensation for moral damage. If, as in the vagrants ’ case, the primary consequences of the injury cannot be made good either by any internal law or by the Court the national legislature and administration may nevertheless provide for reparation for the secondary consequences.

In every case where such secondary dama ges are involved the Court has, in my opinion, jurisdiction to decide on them, no matter whether the internal law allows, does not allow, or allows only partial, reparation to be made. However one interprets the German-Swiss Treaty of Arbitration and Conciliation of 3 December 1921 (see paragraphs 16 and 20 of the judgment, and the address of the Commission ’ s Principal Delegate) which together with other classical arbitration clauses served as a model for Article 50 (art. 50), this article does not restrict the Court ’ s jurisdiction to cases involving restitutio in integrum or compensation for an irreversible act causing damage. The Court ’ s jurisdiction extends to every kind of damage caused by the violation. This conclusion is based both on the very wording of Article 50 (art. 50), which is broader than that of the corresponding clauses in the above-mentioned treaties and on the special nature of the Convention, which is designed to ensure the protection of the individual (see, mutatis mutandis, the Wemhoff judgment of 27 June 1968, p. 23).

(c) The position must be the same if t he injury can only be made good by pecuniary compensation, for example if something which has been unlawfully requisitioned is destroyed or lost and so cannot be restored to its owner.

6. Article 50 (art. 50) provides tha t when the Court is considering what satisfaction is just it shall take account of the remedies provided by the national law. The Court must enquire whether the national law allows or does not allow reparation to be made for the consequences of the violation or only allows partial reparation to be made and if necessary afford such satisfaction as it considers fair. If consideration of the national law were to be excluded with regard to all the other consequences of an injury the result would be that the substantive right to obtain damages and the remedies for the implementation of this right would have no effect on the Court ’ s deliberations when it was dealing with a claim for reparation brought before it. The respondent State would lose the option of complying by its own means with the judgment establishing the violation. This would discourage the State from introducing in its national law provisions ensuring such satisfaction.

7. This interpretation does not, howev er, imply that the Court should require an applicant to exhaust the domestic remedies. That solution would amount to creating a new procedural hurdle similar to that in Article 26 (art. 26) and this was quite rightly excluded in paragraph 20 of the judgment. Nevertheless, the Court cannot itself take a decision until the applicant has attempted, by making use of the means available to him under the internal law, to obtain satisfaction from the national authorities. The Court has jurisdiction to assure itself that such satisfaction can be obtained within a reasonable time and that the result will be fair. If difficulties are encountered in obtaining satisfaction the Court can, bearing in mind the extremely long proceedings before the Commission (after exhaustion of the domestic remedies) and then before the Court itself, grant such compensation as it thinks fit, without being obliged to wait for the completion of the national proceedings. It has competence to decide according to the circumstances of each individual case to what extent it will await the result of the applicants ’ claims before the national authorities. It can lay down time-limits after the expiry of which it will examine the results achieved and itself decide on the question of satisfaction.

8. In the De Wilde, Ooms and Versyp cases the placing of the applicants in detention was, according to the judgment of 18 June 1971 , lawful under the Belgian law in force at the time. Under Article 5 (1) (e) (art. 5-1-e) of the Convention the Court had to take the national law as its starting point. Thus, the primary injury was not the detention as such but the absence of any right to take proceedings before a "court" in accordance with the definition given in that judgment. The Belgian Act of 6 August 1971 establishing a remedy could not put this matter right retrospectively. It is the very nature of the violation which makes restitutio in integrum impossible. It is, however, conceivable that there might be secondary consequences to be made good. The Court rightly enquired whether such consequences existed in the present cases and I agree with it in thinking that there were none.