PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. I have joined my learned colleagues in finding that there has been a violation of Article 5 § 5 of the Convention because the sums awarded in damages to the applicants for their wrongful imprisonment were so low as to undermine the essence of their enforceable right to compensation under this Article and make it theoretical and illusory rather than practical and effective, as required by the Convention.

2. With all due respect, whilst the principle of effectiveness, an underlying principle in the Convention, was properly enunciated and employed in the judgment (see paragraphs 18, 21-22, 25-26 and 31) regarding finding a violation of the above provision and making it clear that the applicant ’ s distress and frustration cannot be compensated for by the mere finding of violation (see paragraph 31), it was not, however, applied by the majority properly, or at all, when awarding only EUR 5,000 (five thousand euros) in respect of non-pecuniary damage to each of the applicants, taking into account that the first applicant (Mr Vasilevskiy) was awarded only EUR 3,320 for 472 days ’ unlawful detention and the second applicant (Mr Bogdanov ) only EUR 324 for 119 days ’ unlawful detention.

3. In my humble view, the amount of EUR 5,000 awarded to the first applicant was extremely low and the same amount awarded to the second applicant was also low. Taking into account all the relevant facts of the case as presented in the judgment, the amount awarded to the applicants cannot, in my view, be considered as “just” within the meaning of Article 41 of the Convention, which deals with just satisfaction.

4. Furthermore, the award of EUR 5,000 cannot be “just” in terms of Article 41 because, in awarding this sum, the two applicants were disproportionately equated regarding their suffering, although the period of unlawful detention of the first applicant was three times longer than the second. Taking into account the extremely different lengths of the applicants ’ unlawful detention, they could not, in my view, be regarded as being in the same “boat” and thus treated equally, as the majority have decided.

5 . The principle of effectiveness cannot, in my view, be satisfied regarding the right under Article 41 of the Convention, when the amount of pecuniary damage awarded to two persons is in total disregard of the principle of proportionality and the principle of equality. In James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98), the Court pertinently held that “[a]s far as Article 1 (P1-1) is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle” ( ibid., § 54). This judicial pronouncement illustrates the close link between the principle of effectiveness and the principle of proportionality in that the former cannot be satisfied in the absence of any equivalent principle. Aristotle said the following regarding the relationship between “just”, “proportionate” and “equality”: The just ... is a species of the proportionate ... For proportion is equality of ratios ... ” (see Aristotle, The Nikomachean Ethics (translated and introduced by Sir David Ross), London, 1925, v. 3, 1131.3, at p. 113).

6. In sum, my view is that the amount of EUR 5,000 awarded to each applicant is not “just” in terms of Article 41, both looking at it absolutely, thus looking at the amount awarded to each applicant in isolation, and looking at it relatively, thus looking at the amount awarded to the one applicant in conjunction or comparison with the amount awarded to the other applicant.

7 . My above remarks would have led me to increase the amount awarded in respect of non-pecuniary damage for both applicants, bearing in mind that the first applicant was unlawfully detained for a much longer period than the second applicant. However, being in the minority, it is unnecessary to determine these amounts.