PARTLY DISSENTING OPINION OF JUDGE ROZAKIS

In this case I am unable to follow the majority of the Court in their decision not to award compensation for non-pecuniary damage to the applicant. I share the opinion of Judge Casadevall with regard to the principles that should govern the award of compensation for non-pecuniary damage, and the analysis of Judge Ress on the specific circumstances of this case.

PARTLY DISSENTING OPINION OF JUDGE RESS JOINED BY JUDGES TSATSA-NIKOLOVSKA AND LEVITS

1. In this case I share the opinion of the majority that there was no causal link between the appearance of bias on the part of the Panel of the Gaming Board and the pecuniary losses incurred by the applicant because of the withdrawal of his licence. I also agree with the decision regarding the costs. The only point where I disagree is the question whether an award for non-pecuniary damage should be made. It is true that it is not in every case where a violation is found that compensation for non-pecuniary damage should be awarded under Article 41. There may be cases where the mere statement that a violation has occurred is sufficient to outweigh the frustration of the applicant, in particular when this statement may have consequences at the domestic level. That is the case when the applicant is able to seek redress of the violation found by the European Court of Human Rights through national proceedings or where he can seek compensation for non-pecuniary damage on the basis of such a finding at the national level.

2. These prospects of redress at the national level do not exist in the applicant's case. The applicant, confronted with the legal regulations in England, found himself in a rather difficult position. He could of course have argued that the Panel of the Gaming Board was biased or gave the appearance of being biased. In the course of the judicial review proceedings, Mr Justice Jowitt, dealing with the applicant's “Wednesbury” challenges, dealt quite extensively with the problem of bias. Counsel for the applicant submitted that the decision to revoke the applicant's section 19 certificates should be quashed because the Panel was biased. Mr Justice Jowitt then stated that, even if there was unconscious bias on the part of the Panel, its decision would nevertheless stand because of the doctrine of necessity. This judge therefore gave the impression that the whole endeavour to look more deeply into the question whether unconscious bias was established was futile, as it was not decisive for the outcome of the case because the doctrine of necessity prevented any challenge in this respect to the decision of the Panel. The Court of Appeal came to the same conclusion, even if it assumed in favour of the applicant that he would have an arguable claim sufficient to justify leave to appeal that there was a real risk that the decision of the Panel had been actuated by bias. If the decision whether Mr Kingsley was a fit and proper person could not be delegated to an independent court, the decision of the panel under the doctrine of necessity could not be revoked or quashed. When domestic law does not provide any remedy to a situation where a biased board cannot be replaced by an independent tribunal or any other body, the situation of the applicant or any other person in his position becomes rather desperate.

3. Since the applicant could not and cannot seek redress for the damage caused by the procedure before a Panel which gave the impression of being biased, I wonder how Britain will be able to provide redress for such grievances when it comes to deciding on how to execute this judgment. The situation is rather similar to that in Kudła v. Poland ([GC], no. 30210/96, § 147, ECHR 2000-XI), where the Court stated that besides a violation of Article 6 a separate violation of Article 13 is possible in cases of length of proceedings if there is no effective remedy at the domestic level. There is only an overlap of the two Articles where the Convention right asserted by the individual is a civil right recognised under domestic law. In such circumstances the safeguards of Article 6 § 1 implying the full panoply of a judicial procedure are stricter than, and absorb those of Article 13. But here the right asserted was the right to have an impartial tribunal. That is a separate legal issue from whether there was available to the applicant under domestic law an effective remedy to ventilate a complaint on that ground. In the present case a violation of Article 6 has been found by the Court and no effective remedy at the domestic level is available. Such a situation should either lead to a recomposition of the Panel of the Gaming Board or to a delegation of power to the High Court or to the Court of Appeal. The doctrine of necessity cannot justify in my view a perpetuation of the situation of violation. Under these circumstances, an exception to the doctrine of necessity has to be made with the result that a delegation of power from the Panel to the courts is acceptable. In such a situation, the only possible reparation is to grant the applicant a certain sum in respect of non-pecuniary damage, not for loss of opportunities but on an equitable basis for being in a position where he cannot find any redress under domestic law for this kind of violation of Article 6.

PARTLY DISSENTING OPINION OF JUDGE CASADEVALL JOINED BY JUDGES BONELLO AND KOVLER

(Translation)

1. I do not share the decision of the majority not to award financial compensation, by way of just satisfaction, for the non-pecuniary damage sustained by the applicant.

2. Proceeding from the principle, constantly reiterated by the Court, that the Convention is a living instrument which must be interpreted in the light of present-day conditions, that its intention is to guarantee rights that are not theoretical or illusory, but practical and effective, and in accordance with “... the principle that the applicant should as far as possible be put in the position he would have been in had the requirements of [the Convention] not been disregarded ” (see Piersack v. Belgium (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12), the construction of Article 41 which – to my mind – is the correct one inclines me to the view that, in principle, a mere finding of a violation cannot constitute in itself adequate just satisfaction. Applicants are entitled to something more than a mere moral victory or the satisfaction of having contributed to enriching the Court's case-law.

3. Where the Court concludes that there has been a violation of one of the provisions of the Convention, and mindful that the domestic law affords only partial redress (or all too often none whatsoever) for the consequences of that violation, an award of just satisfaction in compensation for non-pecuniary damage ought to be the rule . A decision that the finding of a violation constitutes in itself just satisfaction ought to be the exception and reserved for cases with minor consequences. Indeed, some breaches of procedural rules, of a kind known as “technicalities”, or other cases which have not significantly affected an applicant's situation can always constitute exceptions [In Dudgeon v. the United Kingdom (Article 50), judgment of 24 February 1983, Series A no. 59, the Court held (pp. 7-8, § 14): “... Mr Dudgeon should be regarded as having achieved his objective of securing a change in the law of Northern Ireland. This being so and having regard to the nature of the breach found, the Court considers that in relation to this head of claim the judgment of 22 October 1981 constitutes in itself adequate just satisfaction ...” See also, for a decision based on very special grounds, McCann and Others v. the United Kingdom , judgment of 27 September 1995, Series A no. 324, p. 63, § 219]. The Court will of course exercise care and take account of the circumstances of the case in determining the amount of compensation.

4. In the instant case the Court held that the hearing before the three-member Panel did not present the necessary appearance of impartiality to constitute an Article 6 § 1 tribunal (see paragraph 50 of the Chamber

judgment) and concluded that, since the domestic courts were unable to remit the case to the Board or another tribunal, the High Court and the Court of Appeal did not have “full jurisdiction” within the meaning of the case-law on Article 6 and that, consequently, there had been a violation of Article 6 § 1 (see paragraph 59 of the Chamber judgment). With regard to breaches of procedural guarantees, the almost invariable practice of the Court is to refuse to award compensation for pecuniary damage on the ground that it cannot speculate as what the outcome of domestic proceedings would have been had the breach not occurred. I agree with such a conclusion. However, where a violation of the Convention is found, it is that violation itself which – beyond any possible pecuniary damage – causes the applicant non-pecuniary damage, irrespective of the outcome of the proceedings. That is my view.

5. As there was no causal connection between the violation and the alleged pecuniary damage, and in order to avoid any speculation as to the possible outcome of the proceedings, the solution consisting in acknowledging that the applicant sustained non-pecuniary damage in the form of “loss of real opportunities”, which has been adopted by the Court in a number of cases [See, among other authorities, Colozza v. Italy , judgment of 12 February 1985, Series A no. 89; Bönisch v. Austria (Article 50), judgment of 2 June 1986, Series A no. 10; de Geouffre de la Pradelle v. France , judgment of 16 December 1992, Series A no. 253-B; Delta v. France , judgment of 19 December 1990, Series A no. 191-A; and, more recently, Pélissier and Sassi v. France [GC], no. 25444/94, ECHR 1999-II, and Dulaurans v. France , no. 34553/97, 21 March 2000, the last two concerning specifically the guarantees of a fair trial (Article 6 § 1 of the Convention)], seems to me to be an adequate and fair solution. In Doustaly v. France , judgment of 23 April 1998, Reports of Judgments and Decisions 1998-II, despite the lack of a causal connection between the violation of Article 6 § 1 and the alleged pecuniary damage, the Court awarded the applicant a substantial sum under the head of loss of clients and an amount in compensation for non-pecuniary damage. Otherwise, if the Court does not want to follow the “loss of opportunity” approach, it can always acknowledge the existence of non-pecuniary damage arising from uncertainty (see Guincho v. Portugal , judgment of 10 July 1984, Series A no. 81), anxiety (see Keegan v. Ireland , judgment of 26 May 1994, Series A no. 290), feelings of helplessness and frustration (see Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B) or damage to the applicant's reputation (see Doustaly , cited above) caused by the violation.

6. Since Mr Kingsley's rights, as protected by Article 6 § 1 of the Convention, were violated and domestic law did not provide him with any means of redress for the non-pecuniary damage he had sustained, he should have been awarded just satisfaction. In any event, in the light of the decision adopted by the majority, I have difficulty understanding why the panel of five judges agreed to refer this case to the Grand Chamber (see paragraphs 36 and 37 of the present judgment).