PARTlY DISSENTING OPINION OF judge fischbach

( Translation )

Unlike the majority, who consider that the finding of a violation of Article 5 § 3 constitutes in itself just satisfaction for any non-pecuniary damage, I am of the opinion that pecuniary redress is called for in this case.

I consider that the applicant’s pre-trial detention, which lasted eleven days, without adequate safeguards and therefore in breach of Article 5 § 3, must have caused the victim feelings of anxiety and frustration such that compensation for non-pecuniary damage is amply justified.

Such a conclusion seems to me all the more reasonable as the length of the pre-trial detention was more than disproportionate in view of the charges and the applicant’s youth.

PARTLY DISSENTING OPINION OF JUDGE GREVE

I voted with the majority on all points except the question of just satisfaction.

Article 41 of the Convention provides that “… 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”. This presupposes that the Court has found a violation of the Convention or the Protocols thereto.

The Court has ruled that a fortiori Article 41 (formerly Article 50) also covers cases where – as in the present case – it is the intrinsic nature of the injury which makes restitutio in integrum impossible.

For just satisfaction to be awarded the applicant must actually have sustained prejudice and the prejudice must have been caused by the violation found by the Court. In such cases the Court has made awards in respect of non-pecuniary damage including (but not limited to) uncertainty, anxiety and/or distress, sense of isolation, confusion, neglect, frustration and/or helplessness and feelings of injustice.

As pointed out by the majority in the present case, the Court’s rulings have not, however, followed a consistent pattern in these cases but rather followed a case-by-case approach even when, as in the instant case, a violation of Article 5 § 3 has been established.

In my view, it would under these circumstances be preferable for the Court normally to use its discretion to award the injured party some equitable satisfaction – be it only token – rather than simply state that the mere finding of a violation/violations constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered. The question in each individual case would then be what amount constituted equitable satisfaction under the circumstances. I cannot identify any reasons for making an exception in the present case.

[1] Notes by the Registry

- 2 . Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] . Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] . Note by the Registry . Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[3] 1. Application no. 25644/94.

[4] . Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.