DISSENTING OPINION OF JUDGE S BOTOUCHAROVA AND HAJIYEV

We share the conclusion of the Chamber in finding a violation of Article 14 of the Convention taken in conjunction with Article 8 in these cases. However, we regret that we are unable to accept the amount of 75 000 euros in respect of non-pecuniary damage for the first applicant as it does not follow the Court ' s case-law for non-pecuniary loss in comparable cases under Article 41.

We would recall that under Article 41 just satisfaction will be afforded by the Court only “if necessary” (see, inter alia, the Dudgeon judgment of 24 February 1983, Series A no. 59, p.7., par. 11). In exercising the discretion thus conferred on it, the Court will have regard to what is equitable in all the circumstances of the case (Silver and Others (Article 50), 24 October 1983, Series A no. 67, para 9). In our view the notion of “equity” has not been respected in the case of the first applicant.

The present case is but one following the case of L. and V. v. Austria in which the Court has found a violation of the same kind and it comes after Austria has repealed its law relating to the criminalising of homosexual acts of adult men with consenting adolescents between the ages of 14 and 18. The Court would in such circumstances take that fact into account and follow the award made in the leading case. The Court is free to adjust the amount it awards following the particular circumstances of a case. Still, if deciding to award an excessive sum when deciding on non-pecuniary damage given in equity it should explain the reasons which prompted it to depart from its own established case-law. As this is not the case and as at the same time the amount is not adequate to the character of the violation found, we cannot agree with the majority.