PARTLY DISSENTING OPINION OF JUDGE COSTA

(Translation)

I agree with the Grand Chamber’s judgment, which I consider excellent. Except on one point: the refusal to afford the applicants any just satisfaction.

The Court considered that no award for pecuniary damage was necessary, even though the second applicant paid damages to Mrs R.M. Yet, as a rule, the Court takes into account any sums paid by an applicant to his or her opponents on the basis of court decisions, and will normally order the respondent State to refund them because a causal link has been established (see, for example, Nikula v. Finland , no. 31611/96, § 63, ECHR 2002-II).

The Court also held with regard to non-pecuniary damage that the finding of a violation of the Convention constituted sufficient just satisfaction. It is true that the Court has often, but not always, reached this conclusion (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 56, ECHR 1999-VIII, and, conversely, Nikula , cited above, § 65), whereas in length-of-proceedings cases, on the contrary, it systematically makes awards to the applicants in respect of non-pecuniary damage, on account of the “anxiety” or “anguish” caused by the unreasonable length of proceedings. Questions may be asked as to this severity where a substantive right has been infringed and this generosity where there has been a procedural violation (see, in this connection, for example, the dissenting opinions in Di Mauro v. Italy [GC], no. 34256/96, ECHR 1999-V). It may also be observed that in the present case the applicants, having received a prison sentence, undoubtedly suffered feelings of anxiety, or indeed anguish, at least until they were granted a presidential pardon, which, moreover, did not even waive their secondary penalties.

The Court lastly decided not to award the applicants anything for costs and expenses, despite the fact that they had been represented by counsel in the domestic courts and before the Grand Chamber of the Court. It is true that they left it to the Court’s discretion to determine the amount to be awarded under this head (see paragraph 131 of the judgment). The Court simply observed that they had not substantiated their claim. But it could well have considered, on an equitable basis, that some costs had necessarily been incurred, and allowed the claim, awarding the applicants a lump sum, as frequently happens.

In short, the applicants merely obtained Platonic satisfaction, or a Pyrrhic victory (according to whether we prefer imagery from Athenian philosophy or from the kingdom of Epirus). Irrespective of their conduct, that seems somewhat excessive to me: once again, litigants who lose all their cases in the national courts are almost always awarded significant amounts under

Article 41 of the Convention, even if they have displayed a dilatory attitude or have acted in bad faith. I consider that that in itself serves as justification for not agreeing (even as a minority of one!) with points 2 and 3 of the operative provisions.