JOINT PARTLY DISSENTING OPINION OF JUDGES BONELLO, TULKENS AND VAJIĆ

(Translation)

As regards the non-pecuniary damage sustained by the second applicant, the Court holds: “The finding of a violation provides sufficient just satisfaction for any non-pecuniary damage she may have suffered as a result of the non-enforcement of the return order” (see paragraph 84, in fine , of the judgment). However, in like circumstances, it awards the first applicant 20,000 euros for non-pecuniary damage ( ibid .). The imbalance between the two awards does not appear to us to be justified, especially as the fundamental aim of the Hague Convention with which the present case is concerned is to protect children (see paragraph 44 of the judgment). Although a finding of a violation may in certain cases take on a symbolic value, in the present instance it amounts to reparation at its most frugal.

Personally, we do not share the view that, owing to its tender age, the child has not suffered or may not in the future suffer any non-pecuniary damage (such as stress or anxiety) of its own, warranting an award of compensation for the violation of Article 8 of the Convention which the Court has found as a result of the Austrian authorities' failure to take, without delay, the measures they could reasonably have been expected to take in order to enforce the return order, in breach of the second applicant's right to respect for her family life (see paragraph 72 of the judgment).

We consider that, as in the Scozzari and Giunta v. Italy judgment of 13 July 2000, in which the Court held that it had to take into account the non-pecuniary damage sustained by the children in view of their position as applicants (§ 253), the Court should have granted the second applicant, whose conduct cannot be criticised in any way, compensation reflecting the level of damage she sustained.

SEPARATE OPINION OF JUDGE BONELLO

1. The majority's ruling as to what just satisfaction to award the applicant and his minor daughter Carina Maria, to redress the ascertained violation of their fundamental right to the enjoyment of family life, finds me in radical disagreement.  I am participating in the joint dissent disputing the majority's decision to award nothing to Carina Maria in so far as, in their view, the mere finding of a violation constitutes in itself sufficient just satisfaction for moral damages suffered by her.  I have now to clarify my views concerning the damages and costs awarded to the applicant personally.

2. I voted with the Court on the amounts liquidated in favour of the applicant as material and moral damages and as costs and expenses.  I did so not because I endorse the majority's reasoning and its mathematical outcome, but lest my negative vote be read as implying that, according to me, no damages or costs at all were due.  On the contrary, I consider the amounts granted in favour of the applicant as mean and beggarly.  I believe that the compensation awarded conspicuously fails the test of proportionality between the harm inflicted and the redress afforded.

3. The applicant's existence was skilfully and organically disrupted by the Austrian authorities' defiance of their responsibilities under Article 8 of the Convention - which, as the majority agreed, in the present case imposed on them a duty to ensure the enforcement of the final return order issued in his favour in terms of the Hague Convention on the Civil Aspects of International Child Abduction.  The applicant and his wife had established the matrimonial residence in Michigan, USA.  The wife's relocation to Austria, together with the illicitly appropriated child, coerced the applicant into instituting legal proceedings in Austria, which necessitated his presence there to ensure their diligent and successful prosecution.

4. The Court has identified two main sources of violation of the guarantees of Article 8 by the Austrian tribunals: some 'unexplainable delays' in the progress of the proceedings ( para . 67) and the fact that they negated the final return order previously issued in favour of the applicant.  I believe that, in accordance with the Court's case law, all the losses, costs and expenses “actually and necessarily” incurred by the applicant for the prevention or rectification of a violation of the Convention, ought to have been reimbursed to the victim of that infringement.

5. I would, of course, exclude from the liquidation of damages, costs and expenses, those the applicant incurred to counteract the actions of his wife at a time when the liability of the Austrian state had not yet been  engaged.  Before that instant, nothing is due by Austria.  But, as from then on, the unreasonable delays and the resistance to the enforcement of the final return order (for both of which the majority found the Austrian courts responsible) played a determining conjoint role in infringing the applicant's Convention rights.  This cut-off point, after which the applicant was no longer battling his wife but was contending with the failures of the Austrian system, occurred in April 1996.  It is my view that, from this moment when the state's responsibility was fully engaged, all losses, damages costs and expenses incurred by the applicant to redress the ongoing state of infringement, clearly became the liability of the respondent state .

6. If, in June 2001 the applicant lost his job in the USA, as the diligent prosecution of the proceedings in Austria prevented the diligent prosecution of his work responsibilities in the USA, then this loss too falls to be compensated. The Court considered that there is no causal link between the material damages claimed and the violation found ( para . 83).  In my view, the bond of causality between the efforts put in by the applicant to obtain redress for the infringement suffered, on the one hand,  and the loss of his job (and various other substantial damages), on the other,  is as compelling as it is overwhelming.  To believe otherwise is also to believe that the applicant could have carried on working industriously in the USA, while engaging in a full-time legal affray in Austria, continually crossing the globe to attend court sittings and conferences with his lawyers thousands of kilometres away.  Not one euro's worth of material damages was recognised and awarded to the applicant by the majority, under any head whatsoever.

7. The liquidation of 20,000 euros to the applicant as moral damages for pain and suffering, I consider paltry and uncaring.  To a person who has had the core of his existence irretrievably gutted by the violation of fundamental rights, to a father who has been irrevocably barred from the covenant with his only daughter, to a victim of atrocity born of the distressed use of the law against him, the majority responded with the award of what, in my view, amounts to an almost offensive trifle.  That is hardly the most eloquent idiom to underscore how hallowed the sanctity of fundamental rights is in the eyes of the Court.  If neutralizing the Convention comes so cheap, states may well find it foolish not to have a brave  try.