JOINT DISSENTING OPINION OF JUDGE S ZIEMELE AND KARAKAÅž

While we follow the Chamber ’ s reasoning on all of the substantive points, we cannot agree with the Court ’ s decision with regard to the issue of an award in respect of non-pecuniary damage in this case. We note that in paragraph 44 of the judgment and point 4 of the operative provisions the Court has decided not to allocate any compensation for non-pecuniary damage, holding that the finding of a violation is sufficient compensation.

We should like to refer back to the extensive discussions that have already taken place in the Court concerning the problem raised by this approach, by which the Court from time to time accepts that a judgment declaring a violation is in itself a form of compensation. We do not believe that this approach is compatible with the general principles of international law as regards State responsibility which have been followed in the Court ’ s case-law. We refer to Judge Spielmann ’ s dissenting opinion in the case of Guiso-Gallisay v. Italy (no. 58858/00, 8 December 2005 ) with all the relevant information notes and sources cited therein, summing up those discussions and the applicable legal principles. In other words, where a court establishes that there has been a breach of an international obligation by a State, it must assess how best that breach should be repaired. This is a different question from that of establishing whether there has been a violation. Normally, any violation would give rise to some award of damages. It is only in highly exceptional circumstances that the Court may decide not to award moral damages if, in its opinion, various relevant factual circumstances preclude such an award. In any event, the Court must address fully the question of reparation for damage or, failing that, appropriate compensation, including assessment of non-pecuniary damage.