PARTLY DISSENTING OPINION OF JUDGE SICILIANOS

1. I agree with the majority on all points of the operative part, except as regards point 3, according to which “it is not necessary to examine the complaints under Article 5 § 3 of the Convention”. Paragraph 83 of the judgment specifies further that the finding of a violation of Article 5 § 1 (c) of the Convention “makes it unnecessary to assess whether the domestic courts provided relevant and sufficient reasons for the applicant ’ s continued detention, as required by Article 5 § 3 of the Convention, or whether the refusal to release the applicant on bail was in violation of that provision. Therefore, the Court does not consider it necessary to examine separately any issues under Article 5 § 3 of the Convention [references omitted]”.

2. It is true that since the Grand Chamber judgment in Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania ([GC], no. 47848/08, ECHR 2014), the Court has frequently used the so-called “ Câmpeanu formula” in order not to examine in extenso peripheral or secondary complaints or complaints which are in one way or another absorbed by the main complaint. Such an approach is understandable from the viewpoint of the economy of the judgment and may contribute to a greater focus on the main issues and thus to the clarity of the judgment. In my view, however, this formula should only be used in the above circumstances – peripheral or secondary complaints or complaints which are absorbed by the main complaint – as it is otherwise in danger of being perceived by the applicant as a sort of partial “denial of justice”. One should also bear in mind that its use has an impact on the amount of just satisfaction. Furthermore, the “ Câmpeanu formula” should be used in a consistent manner, that is to say, if the Court decides to use it in a given case it should also use it in similar cases and vice versa.

3. In the present case, I am not persuaded that the above conditions are met. The issue relating to Article 5 § 3 is neither peripheral nor secondary. Furthermore, despite the finding of a violation of Article 5 § 1 (c), a similar complaint under Article 5 § 3 was examined in two other cases against Armenia (see Jhangiryan v. Armenia , nos. 44841/08 and 63701/09, §§ 89 ‑ 92, 8 October 2020, and Smbat Ayvazyan v. Armenia , no. 49021/08, §§ 86-91, 8 October 2020) and a violation of this provision was found (which also had an impact on just satisfaction under Article 41 of the Convention). The cases in question concern the same set of facts and bear strong similarities to the present case. In such circumstances I found it difficult to agree with the majority and to consider that the examination of the complaint under Article 5 § 3 was “unnecessary” in the present case.

PARTLY DISSENTING OPINION OF JUDGE EICKE

1. The Chamber was in complete agreement that there has in this case been a clear breach of Article 5 § 1 (c) of the Convention on the basis that the applicant ’ s arrest and pre-trial detention were not based on a reasonable suspicion.

2 . Nevertheless, I find myself unable to agree that it was appropriate, in the circumstances of this case and on the material before us, to make an award of pecuniary damages under Article 41 of the Convention in relation to the alleged loss of his salary as a member of Parliament. In fact, it seems to me that this judgment is a further example of the problem identified in the Joint Partly Dissenting Opinion I wrote with Judges Lemmens and Koskelo in Molla Sali v. Greece (just satisfaction) [GC], no. 20452/14, 18 June 2020. In paragraph 4 of that Joint Partly Dissenting Opinion we noted that “the majority has avoided having to grapple with some of the more difficult issues arising in the context of an assessment of pecuniary damages under Article 41 of the Convention. ..., in the context of judgments of the Court in which admissibility, merits and just satisfaction are almost invariably considered together, the just satisfaction aspect of a complaint frequently receives only the most cursory attention, almost as an afterthought, without detailed exposition of or reference to applicable legal principles”.

3 . While the issue here was, in many ways, much more straightforward than in the Molla Sali case, unfortunately the same is true in the present case.

4 . A convenient (and in this case sufficient) point of reference for analysing the applicant ’ s claim for pecuniary damages is the Practice Direction of 28 March 2007 entitled “just satisfaction claims”. [1] That Practice Direction, issued by the President of the Court under Rule 32 of the Rules of Court, states clearly that “Claimants are warned that compliance with the formal and substantive requirements deriving from the Convention and the Rules of Court is a condition for the award of just satisfaction” (paragraph 4) and goes on to confirm the following basic requirements relating to any claim (and consequent award) of just satisfaction (including pecuniary damages):

“5. ... the Court requires specific claims supported by appropriate documentary evidence, failing which it may make no award. ....

...

1. Damage in general

7. A clear causal link must be established between the damage claimed and the violation alleged. The Court will not be satisfied by a merely tenuous connection between the alleged violation and the damage, nor by mere speculation as to what might have been.

8. Compensation for damage can be awarded in so far as the damage is the result of a violation found. No award can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible at an earlier stage of the proceedings.

...

2. Pecuniary damage

...

11. It is for the applicant to show that pecuniary damage has resulted from the violation or violations alleged. The applicant should submit relevant documents to prove, as far as possible, not only the existence but also the amount or value of the damage.”

5 . Unfortunately, the applicant ’ s claim for pecuniary damages satisfies none of these requirements. In his observations before the Court, the applicant did no more than assert that

“[a]s a member of Parliament [he] used to receive a monthly salary in the amount of 300,000AMD. This rate is established under Article 3 of the Law of the Republic of Armenia on Official Rates of Remuneration of Senior Officials of Legislative, Executive and Judicial Authorities. Due to the fact that the Applicant was arrested, detained and convicted unlawfully, the calculation period starts from the moment of his arrest on March 2, 2008 .... The Applicant has not received his salary from the date of his arrest until now and he will not be receiving his salary until ...”.

6 . This assertion was not, however, backed up either by any evidence of the facts or loss asserted nor by any evidence (or argument) that it had, in fact, clearly been caused by the violation of Article 5 § 1 (c) of the Convention found in relation to his arrest and pre-trial detention.

7 . In relation to the loss allegedly suffered, the applicant provided no evidence at all, whether it is in the form of a provision in law or in the Rules of Procedure of the National Assembly of Armenia pointing to an automatic cessation of salary entitlements upon arrest of a member of Parliament, an order of the parliamentary authorities directing the cessation of his salary payments as a result of his arrest or even extracts from bank statements showing that his regular salary payments had ceased. Especially in the context of a member of Parliament, i.e. a democratically elected office holder, it seems highly inappropriate (and inconsistent with the presumption of innocence) for the Court, absent any evidence, to assume that an apparently lawful arrest and/or detention would automatically lead to the loss of salary payable in relation to the exercise of that elected office.

8 . In relation to the question of the clear and direct causal link it is also important to note the limited nature of the violation found by the Court in this case. After all, the applicant did not complain of and the Court was not concerned with (and even less found established) a violation of his rights as a member of Parliament under Article 3 of Protocol No 1 to the Convention (right to free elections) and even less a breach of Article 18 of the Convention (limitation on use of restrictions on rights). As the Practice Direction makes clear no award of just satisfaction can be made for damage caused by events or situations that have not been found to constitute a violation of the Convention.

9 . The reason why this is important is that, as far as I can ascertain from the observations and the evidence accessible to me:

(a) the applicant ’ s arrest and detention were, in fact, only possible because, on 4 March 2008, the National Assembly decided to accede to a request of the public prosecutor of the same day to lift the applicant ’ s immunity as a member of Parliament (see the judgment in paragraphs 19 and 20); and

(b) (in absence of any evidence as to the applicable contemporaneous Rules of Procedure of the National Assembly of Armenia) it appears from the version of the Rules of Procedure of the National Assembly closest in time to the events underlying this application which are available to the Court that, in fact, the more likely scenario is that the loss of salary is not an automatic consequence of the arrest or detention of a member of Parliament at all. Article 6 of the Rules of Procedure (as last supplemented on 13 September 2012), entitled “The Obligations of the Deputy”, provides in Article 6(1.1) that:

“The Deputy receives no salary for the days of absences without a good reason from the sittings of the National Assembly [...], as well as the parliamentary hearings [...].

The absences of Deputies are calculated by the staff of the National Assembly (hereinafter: the staff,) and the President of the National Assembly, and by the presence of corresponding justifications the calculated absences may be considered valid.”

10 . Furthermore, Article 90(3) of the Rules of Procedures (as last supplemented on 8 April 2010) provides that:

“3. A Deputy ’ s absence from voting is considered for a good reason if:

a) within four days after s/he has recovered his capability s/he submits a certificate on incapability to the chairperson of the standing committee or the chief of staff;

...

a.2) s/he has been arrested or remanded in custody for preventive reasons but he was not sentenced to imprisonment or decision to discontinue his/her criminal prosecution was adopted with regard to him/her;

...”

11 . Consequently, not only was the loss of his salary dependent upon his immunity being lifted, it also required a decision by the staff and President of the National Assembly that his period in detention amounted to an absence “without good reason”, a decision which would have been inconsistent with the Rules of Procedures of the National Assembly (in the form available to the Court) but which in any event would apparently have had to be reached after taking into account (it appears) any submissions/justifications the member of Parliament in question wishes to advance. Again, in my view it is highly inappropriate for the Court, absent any evidence, to assume that an apparently lawful arrest and/or detention would automatically be considered not to be a “good reason” for absence (a conclusion which would also raise potential questions as to its compliance with the presumption of innocence); especially where, as here, the National Assembly had itself lifted the applicant ’ s immunity and thereby consciously enabled the arrest/detention and consequent “absence”.

12 . The mere fact that the Government did not contradict the applicant ’ s mere assertions cannot, in my view, by itself be sufficient to overcome these difficulties or to absolve the Court from considering whether the applicant has, in fact, established on the basis of evidence either the loss allegedly suffered or the clear and direct causal connection between the loss and the violation of the Convention found, both of which are necessary prerequisites for the Court making an award of just satisfaction in relation to pecuniary damages.

13 . As a consequence, in the context of the finding of a violation of the Convention limited to Article 5 § 1 (c), the present applicant has, in my view, wholly failed to establish either the existence of the loss claimed or the necessary clear and direct causal link to his arrest and subsequent pre-trial detention at the initiative of the investigators and/or the public prosecutor and no award of just satisfaction in respect of pecuniary damage should have been made.

[1] This Practice Direction can be found on the Court’s website under https://www.echr.coe.int/Documents/PD_satisfaction_claims_ENG.pdf