PARTLY DISSENTING OPINION OF JUDGE KOVLER JOINED BY JUDGE HAJIYEV

I am unable to agree with the conclusions of the majority on one point , namely the issue of pecuniary damage .

In some previous cases concerning disappearances in Chechnya the Court routinely made awards in respect of pecuniary damage where the disappeared adult persons were unemployed. The awards were based on the assumption that they would eventually have had some earnings from which the applicants would have benefited (see, among other cases, Imakayeva v. Russia , no. 7615/02, § 213 , ECHR 2006 ‑ XIII).

It should be noted in this connection that the Constitution of the Russian Federation provides: “Able-bodied children over eighteen years old must take care of disabled parents” (Article 38 part 3). This is a moral imperative laid down as a constitutional norm subject to certain conditions (children over eighteen, disabled parents). The first applicant submitted that her son had been a student aged seventeen and that his brother had been unemployed , but that in the future she would have benefited from his financial support (paragraph 151) . The text of the judgment reproduces the second applicant ’ s argument that “ although her son had been unemployed at the time of his disappearance as he had been only fifteen years old, according to the regional tradition he was supposed to become the breadwinner for his parents as the youngest son in the family ” (paragraph 153). The conclusions of the Court on this issue are thus largely based on assumption and on customary law (“regional tradition”).

The assumption, largely speculative as such, appears to be particularly far-fetched in the present case. As justly noted by the Government ( paragraph 154) , the applicants ’ sons were minors, and not only were they not breadwinners, but were themselves dependent on the applicants. The Court indirectly agrees with this argument: “[ t] he Court notes that the applicants ’ sons were unemployed at the time and, being only fifteen and seventeen years old, w ere dependent on the applicants” (paragraph 155). But it appears that this conclusion is counterbalanced by others, namely that “the applicants ’ sons were close to coming of age” and “they would eventually [ sic ! ] have had some earnings” ...

The award in respect of pecuniary damage on account of the loss of possible future financial support from persons who, being the applicants ’ dependants, had all their means of subsistence provided by the applicants at the time of their presumed death , runs counter to the logic of civil law. Taken to an extreme , such logic would lead the Court to make award s for

pecuniary damage to parents on account of the expected los s of income of deceased babies as “potential breadwinners”. Furthermore, this approach appears inconsistent with the Court ’ s cases where an award in respect of pecuniary damage has been made to real dependants, including children, of disappeared persons (see, among other cases, Sangariyeva and Others v. Russia , no. 1839/04, §§ 121-129, 29 May 2008).

It is noteworthy that in reducing the initial claim in respect of pecuniary damage (based moreover on the “ Ogden tables”!) the Court observes that “[f] urthermore, ... each applicant has other children from whose financial suppor t they must be able to benefit” ( paragraph 155).

I am aware that my reasoning could be interpreted as a kind of exercise in cynicism in relation to the real and irreplaceable loss sustained by the applicants. But my position on other issues in this tragic case will vouch for my bona fide intentions.