CONCURRING OPINION OF JUDGE ZIEMELE

1 . While I voted for the decision not to make any award for damage in this case in view of the nature of the Court ’ s findings summed up in paragraphs 130-131, I cannot fully subscribe to the reasons given by the Court in paragraph 136 and in point 3 of the operative part. I am perfectly aware that this is a long-standing practice of the Court. The wording always used by the Court is to say that “the finding of a violation of [the particular Article] constitutes sufficient just satisfaction”.

2 . I have in the context of some earlier cases made clear my unease with this approach (see the joint separate opinion of Judges Ziemele and Karakas in Disk and Kesk v. Turkey , no. 38676/08, 27 November 2012). My unease relates to the very notion of State responsibility in international law and in fact to the distinction that one draws between an internationally wrongful act and its consequences. Article 28 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 (the “Draft Articles”) provides: “The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part [Part Two]”. The wording that the Court uses, in my view, mixes together the establishment of State responsibility by a court based on a violation of the State ’ s obligations under the Convention and the question of the Court ’ s view on the possible legal consequences following the finding of responsibility.

3 . According to the rules on State responsibility, the main consequence following the internationally wrongful act is an obligation to make full reparation. This is an independent obligation. The ILC has stated that “the general obligation of reparation [is] the immediate corollary of a State ’ s re sponsibility” (see commentary on Article 31 of the Draft Articles, § 4). It is true that there are different forms of reparation, which include satisfaction for the injury caused “in so far as it cannot be made good by restitution or compensation” (Article 37 § 1 of the Draft Articles). “Satisfaction may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality” (Article 37 § 2 of the Draft Articles). It is important to keep in mind that satisfaction provided by the responsible State, and not the courts, is not a standard form of reparation and may work only in those cases in which reparation cannot be fully satisfied through restitution or compensation. In any event, satisfaction under the rules on State responsibility should not be confused with what the European Court of Human Rights or other international courts or tribunals have considered to be just satisfaction.

4 . As far as the Court is concerned, Article 41 follows the logic of the law on State responsibility since it first of all provides that, in principle, the responsible State should grant full reparation at national level and that it is only when such reparation is not available or possible that the Court may decide on just satisfaction. The Court has explained that where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000 XI). In the case of Papamichalopoulus and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 B, the Court held as follows:

“The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate”.

In other words, the Court declares that an action or omission by the State is unlawful in the sense of being contrary to the Convention. At this point a corresponding obligation arises to repair the injury.

5. As far as a judicial declaration of a violation as a form of just satisfaction is concerned, it is true that the ILC has commented that it is “one of the most common modalities of satisfaction provided in the case of moral or non-material injury t o the State” (see commentary on Article 37 of the Draft Articles, § 6). At the same time, it is important to note in what specific factual context this practice of international courts and tribunals was established. The ICJ judgment in the Corfu Channel case is the main authority for this approach. However, the ICJ ruled that the declaration of a violation by the British Navy was “in itself appropriate satisfaction” in a situation in which Albania had not sought any other form of reparation (see Corfu Channel , Merits, ICJ Reports 1949, p.35). The ILC stated as follows: “However, while the making of a declaration by a competent court or tribunal may be treated as a form of satisfaction in a given case, such declarations are not intrinsically associated with the remedy of satisfaction. Any court or tribunal which has jurisdiction over a dispute has the authority to determine the lawfulness of the conduct in question and to make a declaration of its findings, as a necessary part of the process of determining the case. Such a declaration may be preliminary to a decision on any form of reparation, or it may be the only r emedy sought” (see commentary on Article 37 of the Draft Articles, § 6). It should also be pointed out that, while noting the long-established practice of using satisfaction as a remedy, the tribunal in the “ Rainbow Warrior ” arbitration drew the following distinction: “This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities” (see the “ Rainbow Warrior ” case, UNRIAA, vol. XX, paragraph 122).

6 . To sum up, considering that Article 41 indeed addresses the competence of the Court to determine the remedy for a violation, where a human rights court, in a dispute between a State and an individual, establishes a violation and where the individual concerned, an injured party, has claimed damages, the declaration that a finding of a violation is sufficient satisfaction does not answer that claim. It may well be that the Court considers that the compensation sought is unjustified and thus decides not to award it. The Court should therefore say exactly that. The finding of a violation will remain and will not go away with the decision not to make an award in respect of damage. These will be very rare cases and there might still be remedies available at domestic level. I therefore consider that the Court needs to disentangle its language in situations in which it does not consider it appropriate to make an award for damages.

CONCURRING OPINION OF JUDGE POWER-FORDE

I voted with the majority in this case and wish to add the following.

I understand and share many of the views expressed by Judge Villiger in his partly dissenting opinion. However, what tipped the balance for me in voting with the majority was the Court ’ s confirmation, in this judgment, that Article 3 encompasses what might be described as “ the right to hope ” . It goes no further than that. The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.