JOINT DISSENTING OPINION OF JUDGE S GYULUMYAN, MYJER AND LÓPEZ GUERRA

We voted for a finding of no violation of Article 5 § 1 of the Convention.

We have no difficulty whatsoever with the line of reasoning as laid down in paragraphs 57-63 (recapitulation of the relevant principles) and 64-69 (application of the relevant principles to the present case). However, we do not fully agree with paragraphs 75-77 as regards the victim status of the applicant. The Constitutional Court indeed explicitly acknowledged a breach of the applicant ’ s right under Article 5 § 1 of the Convention. It then awarded the applicant the equivalent of EUR 2,818 in just satisfaction.

In our opinion this level of just satisfaction was not manifestly inadequate or unreasonable in the particular circumstances of the case. That the acceptable amount at the national level may be lower than the compensation usually awarded by the Court in similar cases has to do with the fact that there is a clear difference between a final resolution of the matter at the national level by the appropriate authority – through the express acknowledgment that a violation has taken place and the awarding of appropriate and sufficient redress – and the situation in which it is the Court itself which must decide on the issue in the absence of any acknowledgment of a violation by the State.

The Court expressly acknowledged this in paragraph 139 of its Grand Chamber judgment of 29 March 2006 in the case of Cocchiarella v. Italy (no. 64886/01, ECHR 2006 V), where it ruled that:

“the amount it will award in respect of non-pecuniary damage may be less than that indicated in its case-law where the applicant has already obtained a finding of a violation at domestic level and compensation by using a domestic remedy. Apart from the fact that the existence of a domestic remedy is fully in keeping with the subsidiarity principle embodied in the Convention, such a remedy is closer and more accessible than an application to the Court, is faster and is processed in the applicant ’ s own language; it thus offers advantages that need to be taken into consideration.”

The above-mentioned approach has not been followed in the present judgment, where the majority, in awarding the full EUR 12,000 in respect of non-pecuniary damage, having regard to its own practice in similar cases, acted as if the express acknowledgment of violation by the Constitutional Court was of no relevance for the amount of the damage.

[1] . Rectified on 1 December 2011: the text read “He was accused of robbery …” in the former version of the judgment.