PARTLY DISSENTING OPINION OF JUDGE KELLER, JOINED BY JUDGE DE GAETANO

1 . I respectfully disagree with paragraph 120 of the judgment and with the conclusion that finding a violation of Articles 8 and 13 constitutes sufficient just satisfaction for any non-pecuniary damage sustained.

2 . The Court found that the permanent CCTV camera monitoring of the applicants, all in detention, breached their right to private life in contravention of Article 8 of the Convention (see paragraphs 98-100 of the judgment). In particular, the Court held that the Russian legal framework concerning video surveillance in prisons did not meet the “quality of law” requirements of the Convention. The framework at issue gave unrestricted power to administrators of pre-trial detention centres and penal institutions “to place every individual in pre-trial or post-conviction detention under permanent – that is day and night – video surveillance, unconditionally, in any area of the institution, including cells, for an indefinite period of time, with no periodic reviews” (paragraph 97). No judicial or other safeguards against abuse were provided for in the law. In addition, the Court found a violation of Article 13 on the ground that there was no effective remedy at the domestic level to enable those affected to contest video surveillance on considerations related to the right to respect for private life (paragraph 110). We agree with these conclusions. However, to our surprise, no award has been made for non-pecuniary damage by way of just satisfaction . That, in my view, is a grave error.

3 . The majority explain that since the “judgment will have effects extending beyond the confines of this particular case” (i.e. changing the relevant legal and/or administrative framework in Russia), “the finding of a violation, with the consequences which will ensue for the future, constitutes sufficient just satisfaction ... for any non-pecuniary damage sustained by the applicants” (paragraph 120). This reasoning is unconvincing. It amounts to penalising applicants whose complaints are seen by the Court as requiring structural changes in the State party concerned. On the contrary, the Court should support such applicants who shed light on systemic violations of the Convention while also seeking individual justice.

4 . A grotesque implication of the majority ’ s conclusion in this case is that a systemic violation of the Convention becomes cheaper for States than a violation affecting only certain individuals. I cannot agree with such impunity for States . Given their widespread effect, States should be discouraged through all available means from engaging in systemic violations of the Convention. These means should include, if the circumstances of the case so require, an award in respect of non-pecuniary damage. Such award would not only compensate for the harm suffered by individual applicants, but also incentivise States to comply with their Convention obligations in a speedy and efficient manner.

5 . The failure to make an award for non-pecuniary damage also contradicts numerous judgments of this Court in which surveillance activities taking place outside a clear and comprehensive legal framework led to a finding a violation of Article 8 and an award for non-pecuniary damage (see Vukota-Bojić v. Switzerland , no. 61838/10 , §§ 73-77, 105, ECHR 2016; Valentino Acatrinei v. Romania , no. 18540/04 , §§ 61, 96, ECHR 2013; Copland v. the United Kingdom , no. 62617/00 , §§ 45-49, 53 ‑ 55, ECHR 2007; and Halford v. the United Kingdom , no. 20605/92 , § 75, ECHR 1997). It is true that these cases concerned surveillance outside the prison system. Yet, as the Court itself mentions in paragraph 81 of the instant judgment, it is a well-established principle “that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01 , § 69, ECHR 2005-IX).” In other words , an individual in detention “does not forfeit his or her Convention rights merely because of his or her status as a detainee, including the rights guaranteed by Article 8 of the Convention, so that restrictions on those rights must be justified in each case ( Khoroshenko v. Russia [GC], no. 41418/04 , §§ 106 and 116-17, ECHR 2015, and the authorities cited therein).” Thus, the right to respect for the private life of such applicants should not be treated any differently from that of those outside the prison system.

6 . A straightforward reading of Article 41 further supports this position. The problem of the Article 41 wording was previously discussed in a dissenting opinion in Nikolova v Bulgaria [GC] (no. 31195/96 , ECHR 1999-II), as well as in Gafà v. Malta (no. 54335/14 , ECHR 2018). Article 41 reads: “ 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” (emphasis added). Thus Article 41 imposes two conditions for an award of just satisfaction. First, a violation of the Convention must be found , which in the instant case is undisputed; and second, it must be impossible for the applicants to receive full redress in the national system . This second condition is also met in the case at hand, as the Court found Russia to have breached Article 13 of the Convention for not providing any effective remedy for the Article 8 violation . Therefore, we cannot but agree with Judge Bonello ’ s conclusion in his dissenting opinion in Nikolova :

“In cases like the present one, in which the internal law provides for no satisfaction at all, the ‘ if necessary ’ condition [from the wording of Article 41] becomes irrelevant and the Convention leaves the Court no discretion at all as to whether to award compensation or not.”

7 . For the reasons set out above, the Court should have granted full justice to the applicants by awarding them a sum for non-pecuniary damage, regardless of the broader, systemic effects of the Article 8 violation.

APPENDIX

List of applications

1. 27057/06 Gorlov v. Russia

2. 56443/09 Vakhmistrov v. Russia

3. 25147/14 Sablin v. Russia