JOINT PARTLY DISSENTING OPINION OF JUDGES LEMMENS, GRIÅ¢CO AND RAVARANI

1. To our regret, we are unable to vote for an award to the applicant in respect of non-pecuniary damage. The reasons, explaining our point of view on this specific question, are the following.

2. An award of just satisfaction, including for non-pecuniary or “moral” damage, is neither a right nor an automatic consequence of finding a violation of the Convention. Pursuant to Article 41, the Court may award monetary compensation to the injured party if it considers this to be “necessary”. In other words, it is a matter entirely within the Court ’ s discretion (see, among many examples, Nikolova v. Bulgaria [GC], no. 31195/96, § 76, ECHR 1999-II). In the exercise of this discretionary power “the Court will have regard to all the circumstances of the case, including the nature of the violations found, as well as any special circumstances pertaining to the context of the case” (see A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 250 and 252, ECHR 2009).

3. The Court has also drawn attention to the fact that, for instance, its awards for non-pecuniary damage “ ... serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage; they are not, nor should they be, intended to give financial comfort or sympathetic enrichment at the expense of the Contracting Party concerned” (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 224, ECHR 2009).

4. Thus, taking account of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred (ibid.), the Court ’ s general practice is to award damages in cases where violations of human rights have been found.

5. However, following the same criteria, the Court has frequently concluded that the finding of a violation would constitute sufficient satisfaction, without making a monetary award in this respect.

6. Bearing in mind the nature of the violations found in the case at hand, we would like to draw attention to some examples from an entire line of jurisprudence where the Court, under Articles 6 and 8 of the Convention, has stated that the finding of a violation in itself constitutes sufficient just satisfaction as to the alleged damage, without any further financial compensation: Foucher v. France , 18 March 1997, Reports of Judgments and Decisions 1997-II (denial of access to criminal file), Dowsett v. the United Kingdom , no. 39482/98, ECHR 2003-VII (non-disclosure of material by prosecution that would have been vital to defence ), Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, ECHR 2004-X (prosecution ’ s failure to disclose material evidence to defence of entrapment on public interest), Chorniy v. Ukraine , no. 35227/06, 16 May 2013 (inability to appeal effectively against judgments due to failure to provide copies of them), Kruslin v. France , 24 April 1990, Series A no. 176-A (failure of national law to clarify scope and manner of authority ’ s powers of tapping and interception), Dumitru Popescu v. Romania (no. 2), no. 71525/01, 26 April 2007 (interception of telephone calls by State agents and a lack of adequate safeguards to prevent abuse), and Khan v. the United Kingdom , no. 35394/97, ECHR 2000-V (conviction on the basis of evidence obtained by a covert listening device installed by the police for which no statutory regulatory system existed).

7. Turning to the factual circumstances of the instant case it is to be noted that the applicant, acting in his capacity as vice-president of the Croatian Privatisation Fund, was involved in corruption related to a significant investment project in which he accepted a bribe in the amount of EUR 50,000, arranged to receive a fur ther bribe in the amount of EUR 150,000, and also negotiated a percentage of the overall value of the investment project, estimated at between EUR 23,000,000 and EUR 25,000,000 (see paragraphs 10, 13, 18 and 136 of the judgment).

8. As can be seen from the case-file, the national authorities investigated the applicant ’ s illegal activities in an essentially passive manner and did not incite him to commit offences he would not otherwise have committed (see paragraphs 144-45 of the judgment).

9. Moreover, it was the applicant who played an active role in giving instructions and explaining the modalities of the illegal activity, including the payments that were to be made in exchange for his support for the realisation of the impugned investment project (see paragraphs 10, 68 and 142-43 of the judgment). In the same context we also consider it important to note, as the judgment has already done, that the applicant never contested that the recorded conversations had indeed taken place and never challenged the authenticity of the recordings (see paragraph 167 of the judgment).

10. Against that background, we prefer to adopt the approach of the Court in the cases mentioned in paragraph 6 of the present opinion. Consequently, having regard to the specific circumstances pertaining to the corruption context of this case, we do not consider it appropriate to make an award for non-pecuniary damage. In our view, the Court ’ s finding of violations of the applicant ’ s rights protected by Articles 6 and 8 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage that he may have suffered.

[1] In the domestic proceedings the applicant raised the issue of the lack of proper reasoning in the orders of the investigating judge only in his appeals to the Supreme Court and the Constitutional Court (see respectively paragraphs 69 and 75 of the judgment), not in the proceedings before the Zagreb County Court. This seems to suggest that during the trial the applicant was not particularly bothered by the flaws in the orders’ reasoning.

[2] The same language has been used in Dragojević (cited above, § 97) and in Bašić v. Croatia (no. 22251/13, § 34, 25 October 2016). While I did not sit in the first case, I sat in the second. I regret that that language did not already strike me at the time.

[3] Under Article 9 § 2 of the old Code of Criminal Procedure, “u nlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of the defence, the right to dignity, reputation, honour and respect for private and family life guaranteed under the Constitution, domestic law or international law, or evidence obtained in breach of the rules of criminal procedure in so far as set out in this Code, as well as any other evidence obtained unlawfully” (see the quotation in Dragojević , cited above, § 55). According to the Supreme Court, evidence obtained on the basis of an insufficiently reasoned order is not explicitly excluded from being used as evidence in the criminal proceedings and does not therefore constitute “unlawfully obtained evidence” in the above sense (see the judgment of 3 February 2009, quoted in Dragojević , cited above, § 58, and the judgment of 17 February 2010 in the applicant’s case, quoted in paragraph 71 of the present judgment). This is a matter of interpretation of domestic law, which is one for the domestic authorities.

[4] This language is again taken from Dragojević (cited above, § 101). Interestingly, it has not been repeated in Bašić (cited above) .