PARTLY DISSENTING OPINION OF JUDGE CASADEVALL

(Translation)

1. I do not agree with the opinion of the majority concerning the application of Article 41 of the Convention, or with its conclusion at point 2 of the operative provisions of the judgment that the finding of a violation in itself constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.

2. My disagreement is based in general on the points of principle which I stated in my partly dissenting opinion in the case of Kingsley v. the United Kingdom (appended to the judgment of 28 May 2002). When the Court finds a violation of the Convention, it is the violation itself which causes the applicant non-pecuniary damage, independently of any pecuniary damage and irrespective of the outcome of the proceedings. If the applicant has no prospect of obtaining reparation under internal law, then he or she must be awarded compensation for that non-pecuniary damage under Article 41.

3. In the particular circumstances of the instant case the Court found two violations of Article 5 § 4 (equality of arms in the proceedings relating to the applicant’s continued pre-trial detention and access to the case file – see paragraphs 72 and 87 of the judgment) and, although it is not possible to speculate on what the outcome of the proceedings would have been if Article 5 § 4 had been complied with (see paragraph 92 of the judgment), it seems to me that, since the violations concerned individual rights to have detention supervised and reviewed, they were far more serious than mere breaches of Article 6 § 1 in length-of-civil-proceedings cases and an award of just satisfaction for non-pecuniary damage was called for.

4. Lastly, it should be noted the Government had implicitly accepted that just satisfaction was payable and should be assessed having regard to the case-law in similar cases, the national economic circumstances and purchasing power (see paragraph 90 of the judgment).