PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. My only disagreement with the judgment is that I am unable to reject the applicants ’ claim for costs in whole , as the majority did.

2. Indeed, Rule 60 § 2 of the Rules of Court provides that “[t]he applicant must submit itemised particulars of all claims, together with any relevant supporting documents”.

3. However, in the event of non-compliance with the above requirement, paragraph 3 of the same Rule provides that “the Chamber may reject the claims in whole or in part”. The use of the word “ may ” in the above sentence is not of a mandatory nature as the word “shall” would have been, had it been used instead. So, in my humble view, in a case where the applicant fails to submit itemised particulars, the Court ’ s discretion is not confined only to rejecting a claim in whole or in part but also extends to not rejecting it at all. It all depends on the particular circumstances of a case how the Court can exercise its discretion and deal with the issue of legal costs.

4. In their written observations of 27 July 2017 (p. 3), the applicants argue the following in relation to their claims for legal costs:

“In relation to satisfaction for pecuniary damage for legal services connected with representation of both claimants in pre-trial proceeding (police investigation) including representation during the stay in custody, we paid EUR 3,000 each, what is supported by attached copies of relevant documents.”

The relevant receipts of payment indicate that they concern “ten acts of legal defence”. It is clear from these documents and the statement in the applicants ’ observation that each of the applicants actually paid his lawyer the amount of EUR 3,000. The respondent Government, in the last paragraph of their observations to the Court dated 8 September 2017, admit that the applicants “substantiated” the claim for the reimbursement of their legal costs and expenses “by the annexed voucher”.

5. To my mind, it is clear from the applicants ’ above statement in their observations, and having regard to all the circumstances of the case, that the amount of EUR 3,000 paid by each applicant for legal costs related to legal services which were provided with the view to prevent or redress the violation found.

6. The said statement of the applicants in their written observations, together with the attachment of copies of the relevant receipts and the content of these receipts, cannot be said to be in full but only in partial compliance with the provisions of Rule 60 § 2. Though there is no itemisation of particulars of costs as required by Rule 60 § 2, the two receipts do contain some description, both numerical and substantial, of the legal services rendered, i.e. “ten” “acts of legal defence”. In addition, in the statement in the applicants ’ observations there is a further description of the legal services rendered, that is to say the “representation of both claimants in pre-trial proceedings (police investigation) including representation during the stay in custody” .

7. Hence, I would not exercise my discretion so strictly, as the majority did by rejecting the whole of the applicants ’ claim in respect of costs, also having regard to the fact that this amount of EUR 3,000 was actually paid by each applicant to his lawyer. I would exercise my discretion more leniently, and on a reasonable and equitable basis I would award EUR 2,000 to each applicant plus tax.

8. My proposal is in line with the approach of the same Chamber, namely Chamber III, in Khani Kabbara v. Cyprus, no. 24459/12, 5 June 2018, where the Court held that the respondent State was to pay the applicant EUR 3,000 plus any tax that might be chargeable for costs and expenses. In that case the Court, in paragraph 168 of its judgment, noted that “the invoice submitted by the applicant does not contain an itemised breakdown of his claim”. It also went on to say the following, in the same paragraph: “[t] hat being said, regard being had to Rule 60, the submissions of the applicant ’ s lawyer and the documents in the case-file, the Court considers it reasonable to award the sum of EUR 3,000 under this head.”

9. Undoubtedly, applicants coming before the Court must follow the Rules of Court if they wish to succeed in their claims. But on the other hand, the Court cannot be so strict and formalistic as to prevent the applicants from ultimately enjoying the award which they have garnered in non-pecuniary damage for a serious violation of their human rights. This would happen if their claim before the Court were to be rejected in whole, as happened in the present case, even if to a certain extent the applicants complied with Rule 60 § 2.

10. In my humble view a human right cannot be protected practically and effectively, especially if the Court finds a violation of it - as in the present case, concluding that there was a violation of the applicants ’ right under Article 5 § 1 of the Convention - if an applicant cannot be compensated for legal costs he has already paid at the domestic level regarding an issue which was subsequently brought before the Court. The principle of effectiveness, which is inherent in all the Convention provisions dealing with human rights, is also implicit in Article 41 of the Convention on just satisfaction, which covers both pecuniary damage, including costs, and non-pecuniary damage.

11. In the present case the applicants did not submit any claim for legal costs in respect of proce e dings before the Court. This, together with the fact that the applicants were successful with their complaint under Article 5 § 1 before the Court, is an important additional consideration which should have been taken into account by the Court to the extent of preventing it from rejecting in whole the applicants ’ claim for costs incurred at the domestic level.