PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES

I fully agree with the judgment of the Court except as regards the finding that an award of non-pecuniary damage is not justified in this case. The majority held that the “finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant”.  I am unable to accept this approach.

The Court found a violation of Article 6 § 1 of the Convention in that the three Panel members who adjudicated in the proceedings - which resulted in a revocation of the certificate allowing the applicant to hold a management position in the gaming industry - did not present the necessary appearance of impartiality. The Court further found that there was no domestic remedy in respect of that defect.

The applicant claimed an award of damages for non-pecuniary loss on the basis of loss of reputation and distress suffered as a consequence of the withdrawal of the certificate in question.

In my view this is a proper case for awarding non-pecuniary damages to the applicant for his feelings of distress and frustration as a result of living through proceedings affecting his professional status, which did not offer the safeguards of impartiality required by Article 6 of the Convention.

The Court has on many occasions awarded non-pecuniary damages in order to compensate applicants for their feelings of disappointment and frustration in respect of violations even of a procedural nature, such as excessive length of proceedings, irrespective of whether the particular violation resulted or not in actual pecuniary damage.

I cannot understand in what way the mere finding of a violation in this case “constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant” as found by the majority. I believe that such a finding does not take into account the feelings of the applicant. In any case the Convention gives the Court the right to award “just satisfaction” which implies more than the mere finding that there has been a violation. A declaration of such a finding by itself, without any compensation, is of no consequence for the applicant’s complaint, which was found by the Court  to be justified and for which he had no remedy in the domestic legal system - even though the domestic Courts were prepared to accept that there was an appearance of bias of the part of the Panel.

For the above reasons I am in favour of awarding an amount of money for the non-pecuniary damage sustained by the applicant.