PARTLY DISSENTING OPINION OF JUDGE FISCHBACH JOINED BY JUDGES KŪRIS AND CASADEVALL

( Translation )

Unlike the majority, who are content to find a violation while not considering it appropriate to compensate the victim for the non-pecuniary damage she sustained, we are of the opinion that pecuniary redress is called for in this case.

We consider that the applicant’s detention on remand, which lasted more than three and a half months, without adequate safeguards and therefore in breach of Article 5 §§ 3 and 4 of the Convention, must have caused the victim feelings of anxiety and frustration such that a mere finding of a violation cannot in itself suffice to compensate for the non-pecuniary damage she sustained.

Our position seems to us to be all the more justifiable as, at the time of preparing this judgment, the case is still pending before the domestic courts, so that the applicant’s guilt has not yet been established in law.

Nor do we agree with the majority’s reasoning, with reference to the most recent case-law, 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”.

We take the view that the issue of compensation for non-pecuniary damage is one that has to be determined in the light of the particular facts of each case, whereas the principle adopted by the majority in its reasoning is such as to restrict in advance the scope for awarding compensation for non-pecuniary damage sustained by the victims of breaches of Article 5 §§ 3 and 4.

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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, violations of Article 5 §§ 3 and 4 have 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.

declaration OF judge botoucharova

To my regret I am unable to join with the majority on the question of the amount of costs and expenses awarded to the applicant. 11/03/1999 11/03/1999 11/03/1999 ...../.. .......... .......... 1 1

[1] Notes by the Registry

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

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

[2] 1. 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 . 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.