PARTLY DISSENTING OPINION OF JUDGE BONELLO

In the present case the Court has unanimously found that the applicant’s fundamental right enshrined in Article 5 § 3 of the Convention has been violated. When it came to determine how the breach of that core guarantee was to be redressed, the majority of the Court opted to recite that the finding of the violation in itself constituted just satisfaction.

I do not share the Court’s view. I consider it wholly inadequate and unacceptable that a court of justice should “satisfy” the victim of a breach of fundamental rights with a mere handout of legal idiom.

The first time the Court appears to have resorted to this hapless formula was in the Golder case of 1975 (Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18). Disregarding its own practice that full reasoning should be given for all decisions, the Court failed to suggest one single reason why the finding should also double up as the remedy. Since then, propelled by the irresistible force of inertia, that formula has resurfaced regularly. In few of the many judgments which relied on it did the Court seem eager to upset the rule that it has to give neither reasons nor explanations.

In the recent judgment Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999-II), the Court has somehow tried to overcome that reticence by referring to its recent case-law and remarking that “just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of Article 5 § 3”. Why? I cannot find any plausible justification, in the judgment or elsewhere.

The Convention confers on the Court two separate functions: firstly, to determine whether a violation of a fundamental right has taken place, and secondly, to give “just satisfaction” should the breach be ascertained. The Court has rolled these two distinct functions into one. Having addressed the first, it feels absolved from discharging the second.

In doing so, the Court fails in both its judicial and its pedagogical functions. The State that has violated the Convention is let off virtually scot-free. The award of just satisfaction, besides reinstating the victim in his fundamental right, serves as a concrete warning to erring governments. The most persuasive tool for implementing the Convention is thus lying unused.

The only “legal” argument used so far in favour of refusing to award any compensation at all for non-pecuniary damage has been based on the admittedly infelicitous wording of Article 41, which states: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary , afford just satisfaction to the injured party.”

The Court seems to feel authorised to deny just satisfaction to the victim on the strength of the “if necessary” condition. This, I submit, places an improper construction on Article 41. “If necessary” is applicable only where there is a concurrence of both the conditions posited by Article 41, i.e. the finding of a violation of the Convention and the ability of the domestic system to provide for some partial reparation. When these two conditions combine (and only then) may the Court find it unnecessary to award additional just satisfaction. This is what Article 41 clearly states.

In cases like the present one, in which the internal law provides for no satisfaction at all, the “if necessary” condition becomes irrelevant and the Convention leaves the Court no discretion at all as to whether to award compensation or not.

Article 46 § 2 reinforces this reading: “The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution .” This presupposes a specific judgment that has still to be put into effect. Merely declaratory judgments, like the present one, are always self-executing, and require no further acts of implementation. Article 46 § 2 rules out declaratory, self-executing judgments.

It is regrettable enough as it is, albeit understandable, that, in the sphere of granting redress, the Court, in its early days, imposed on itself the restriction of never ordering performance of specific remedial measures in favour of the victim. That exercise in judicial restraint has already considerably narrowed the spectrum of the Court’s effectiveness. Doubling that restraint, to the point of denying any compensation at all to those found to have been the victims of violations of the Convention, has further diminished the Court’s purview and dominion.

Finding a violation of a fundamental right is no comfort for the government. Stopping there is no comfort for the victim. A moral thirst for justice is hardly different from a physical thirst for water. Hoping to satisfy a victim of injustice with cunning forms of words is like trying to quench the thirst of a parched child with fine mantras.

Except for those courts that now rely on the Golder incantation, I am not aware of any national court settling for a mere finding of breaches of rights as a substitute for a specific remedy or, failing that, compensation. If that is indeed so, ordinary rights enjoy better protection than fundamental rights. And again, if I am right, fundamental liberties receive fuller redress in national courts than they do in the international one. I consider this demeaning.

Of course, the Court is called upon to carry out a careful balancing exercise when assessing the quantum of compensation to be awarded. In certain cases that award could, and should, be nominal or even token. I would not vote for awarding substantial compensation to a convicted serial rapist, should some aspect of his right to family life have been formally breached. Nor would I be excessively generous with awards to a drug trafficker because the interpreter at his trial failed the test of high competence.     What I am disenchanted with is that any court should short-change a victim. I voted against that.

Joint partly dissenting opinion of Judges Tulkens and Casadevall

( Translation )

The Court has held unanimously that there has been an infringement of the applicant’s rights under Article 5 § 3 of the Convention. However, as regards reparation for this infringement, the majority of the Court has opted for the formula “the present judgment constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained”.

We regret that we are unable to agree, for the following reasons.

1. It is not contested in the present case that the first two conditions laid down by Article 41 of the Convention, namely the existence of a violation of the Convention and the lack of any possibility under domestic law of obtaining even partial reparation, are satisfied. Admittedly, the Court still has wide discretion in that it affords satisfaction only “if necessary”, having regard to what is equitable in the light of all the circumstances of a given case.

2. The applicant, who was born in 1974, was detained pending trial for eleven days, from 20 July 1992, when he was arrested by the police, until 31 July 1992, when a magistrate, sitting as a court of inquiry, ordered his release. He was subsequently found guilty of an indecent assault in a public place, but in view of his youth at the material time, among other considerations, he was permitted to go free on probation. In our opinion it is difficult to maintain that a period of detention, even of short duration, leaves no marks. For anyone, and a fortiori for a young person, prison can be a traumatic experience. We cannot of course maintain that the applicant’s detention would have ended if he had been able to obtain speedy judicial review of his detention, but on account of the absence of that safeguard the applicant may well have suffered a certain amount of non-pecuniary damage not wholly compensated by the finding of a violation (see the Duinhof and Duijf v. the Netherlands judgment of 22 May 1984, Series A, no. 79, p. 19, § 45).

3. Lastly, since Article 5 § 5 of the Convention, in specifying what is required of domestic law, expressly provides: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”, there is all the more reason in our opinion to consider that the mere fact that the Court has found a violation is not sufficient to make good any damage. In the instant case, therefore, the Court should have awarded some measure of pecuniary satisfaction, especially as the sum claimed by the applicant was reasonable and could on that account constitute satisfaction on an equitable basis.