PARTLY DISSENTING OPINION OF JUDGE DE GAETANO

1. I regret that I cannot agree with paragraph 80 of the judgment and, consequently, with point 3 of the operative provisions holding that the finding of a violation in this case is sufficient just satisfaction for any non ‑ pecuniary damage sustained.

2. In the instant case the applicant became entitled to bail on the grounds that the committal proceedings in his case had dragged on for more than one year and nine months. However, the amount of the security, in so far as it related to the actual deposit of money, was way above what he could afford. He therefore remained in pre-trial detention for an additional eleven months and fifteen days (from 22 August 2012 to 6 August 3013) until his mother, presumably after convincing other members of her family who, together with her, owned some immoveable property, hypothecated this property so as to enable her to stand as a surety for the amount fixed by the courts of criminal justice. Throughout this additional period, committal proceedings ‑ which in principle, and according to Article 401 of the Criminal Code should be completed within a period of one month, extendible for a maximum of three months – continued, and were only finally terminated sometime towards the end of 2014. The Bill of Indictment was filed in the Criminal Court only on 26 January 2015, and the applicant was finally sentenced on 20 July 2015. The proceedings at one level of jurisdiction, therefore, lasted from 13 December 2010 (when the applicant was first arraigned in court) to 20 July 2015 – a period of over four years and six months. During this period a number of sittings were scheduled before the court of committal, where nothing happened and the case was simply adjourned (see paragraphs 8, 27 and 38).

3. Now, it is true that before this Court the applicant did not complain under Article 6 § 1 of the Convention that he was not tried within a reasonable time, even though a period of four years and six months for one level of jurisdiction is prima facie problematic (see, for example, Temeşan v. Romania , no. 36293/02, §§ 53-58, 10 June 2008; for civil proceedings, Kédiszentkereszti Bíró v. Hungary , no. 236/12, §§ 11 to 13, 18 October 2016). Nor did he focus his complaint, under Article 5 § 3, on the fact that the courts of criminal justice did not act with the “special diligence” required when people are denied bail (his comments on the “special diligence” requirement were quite vague – see paragraph 65). His main thrust was, in essence, that the domestic courts had failed to make a proper assessment of his ability (or rather, inability) to pay the sum required. Nevertheless, the time factor is important, as alluded to in paragraph 71, because the violation of his fundamental right under Article 5 § 3 is compounded with the passage of time .

4. This Court has found the decisions of the courts of criminal justice not to have been Convention-compliant (paragraph 74). It has also found that the constitutional jurisdictions failed to grasp the nettle of the problem (paragraph 75). Nevertheless in this case it has found that the finding of a violation is sufficient just satisfaction. Why? No reason whatsoever is given. Was it, perhaps, because the applicant was a bad guy, who eventually admitted to the murder charge and was sentenced to thirty-five years imprisonment? If that were a good reason for not granting non-pecuniary damage, then the Court should not grant a penny in the hundreds of conditions-of-detention cases before it under Article 3 – none of those detained are confined to their cells by virtue of some monastic vow! In Del Río Prada v. Spain [GC] (no. 42750 /09, ECHR 2013), the applicant, with a history of multiple convictions for innumerable crimes, including terrorist activities, attempted murders and murder, was awarded EUR 30,000 by way of compensation for the illegality of her detention (the violation of Article 7 leading to a violation of Article 5 § 1 of the Convention). Sergey Denisov ’ s detention in breach of Article 5 § 3 attracted non-pecuniary damage to the tune of EUR 7,000 – admittedly his pre-trial detention lasted some seven years, but he was eventually convicted of multiple counts of organising a criminal group, murder and assault, preparing explosive devices and unlawfully storing and carrying firearms, and sentenced to life imprisonment (see Sergey Denisov and Others v. Russia , nos. 1985/05 and 4 others, 19 April 2016). In a more recent case, Lisovskij v. Lithuania (no. 36249/14, 2 May 2017), the applicant was convicted of leading an armed criminal organisation and of possession of a very large amount of narcotic and psychotropic substances with the intention to distribute them, and was sentenced to thirteen years ’ imprisonment. Notwithstanding that his case was still pending on appeal when the Court delivered its judgment, the Article 5 § 3 violation attracted EUR 4,700 in respect of non-pecuniary damage. These are just a few examples.

5. In the instant case it cannot be argued that the period of detention was somehow of merely a few days ’ duration, as seems to have been the Grand Chamber ’ s implicit argument in Aquilina v. Malta [GC] (no. 25642/94, ECHR 1999 ‑ III ), where the detention lasted for just under nine days and where the core issue was the lack of automatic power on the part of the judicial authority to order release in the light of the domestic law as it then stood (§§ 49-50 and 53 of that judgment). Nor can it be said, as the Grand Chamber attempted to argue in respect of the fourth applicant in Ibrahim and Others v. the United Kingdom [GC] ( nos. 50541/08 and 3 others , § 315, ECHR 2016 ), that the applicant Gafà still has some form of remedy open to him domestically. He does not – well, at least not in respect of the Article 5 § 3 violation. He applied to this Court precisely because the domestic constitutional jurisdictions had got it wrong. By holding that the finding of a violation constitutes sufficient just satisfaction for any non ‑ pecuniary damage sustained by the applicant, the Court is indirectly giving credence to the Government ’ s argument that the only reason why the applicant continued proceedings before the Court was “to obtain compensation” (see paragraph 48), an argument which it ostensibly rejected in paragraph 57. But then, not only the Court but even the Government was inconsistent – in their submissions in respect of Article 41 of the Convention, the Government did not argue that a finding of a violation would be sufficient; their argument was that the amount of non-pecuniary damage should not exceed EUR 1,500. By virtue of a triple somersault, the Court ignored all this – hence paragraph 80.

6. Article 5 § 5 of the Convention provides that everyone who has been the victim of arrest or detention in contravention of the provisions of Article 5 shall have an enforceable right to compensation. We therefore expect, at domestic level, a right to compensation, which we then however go on to deny on the basis of the wording of Article 41. In their dissenting opinion in Nikolova v Bulgaria [GC] (no. 31195/96, ECHR 1999 ‑ II) – a case which involved a violation of Article 5 § 3 and § 4 – Judges Bonello and Ma ruste noted that the Convention:

“ ... confers on the Court two separate functions: firstly, to determine whether a violation of a fundamental right has taken place, and, secondly, to give ‘ just satisfaction ’ should the breach be ascertained. The Court has rolled these two distinct functions into one. Having addressed the first, it feels absolved from discharging the second.”

They then proceeded to examine the proper construction to be given to Article 41:

“ ‘ If necessary ’ is applicable only where there is a concurrence of both the conditions posited by Article 41, i.e. the finding of a violation of the Convention and the ability of the domestic system to provide for some partial reparation. When these two conditions combine (and only then) may the Court find it unnecessary to award additional just satisfaction. This is what Article 41 clearly states. In cases like the present one, in which the internal law provides for no satisfaction at all, the ‘ if necessary ’ condition becomes irrelevant and the Convention leaves the Court no discretion at all as to whether to award compensation or not.”

To my mind, the same applies in cases where, although in theory there was a possibility of obtaining compensation, the domestic courts, as happened in the instant case, got it wrong. And dulcis in fundo they add:

“Finding a violation of a fundamental right is no comfort for the Government. Stopping there is no comfort for the victim. A moral thirst for justice is hardly different from a physical thirst for water. Hoping to satisfy a victim of injustice with cunning forms of words is like trying to quench the thirst of a parched child with fine mantras.”

I could not agree more.