PARTLY DISSENTING OPINION OF JUDGE CABRAL BARRETO , JOINED BY JUDGE COSTA

(Translation)

I voted with the majority in favour of finding a violation of Article 5 §§ 1, 2 and 5.

But I disagreed with the majority ’ s view that the finding of a violation in itself constituted just satisfaction for the non-pecuniary damage sustained by the applicant.

In my humble opinion, there is an inherent contradiction in finding a violation of Article 5 § 5 while at the same time making no award under Article 4 1 of the Convention.

Article 5 § 5 affords a right to compensation in the event of a finding by a national court or the Convention institutions of a violation of any of the other paragraphs of Article 5.

In the judgment, the Court held that there had been a violation of Article 5 § 5 on the ground that domestic law did not provide any right to compensation.

The Court clarified the relationship between Article 5 § 5 and Article 4 1 (then Article 50) a long time ago.

In its Neumeister (Article 50) judgment of 7 May 197 4 , Series A no. 17, it stated at paragraph 30:

“Article 5 (5) and Article 50 are placed on different levels, although both Articles deal with questions of compensation under the Convention.

The first lays down a rule of substance: placed among the ‘ normative ’ provisions of Section I of the Convention, it guarantees an individual a right, the observance of which is obligatory in the first instance for the authorities of the Contracting States, as the use in the English text of the adjective ‘ enforceable ’ confirms.

Article 50, for its part, lays down a rule of competence: placed in Section IV of the Convention, it authorises the Court expressly to afford subject to certain conditions, just satisfaction to the ‘ injured party ’ . One of these conditions is the existence of a national decision or measure ‘ in conflict with the obligations arising from the ... Convention ’ , and there is nothing to show that a breach of one of the first four paragraphs of Article 5 is not to be taken into account in this regard. While paragraph 5 of Article 5 carefully specifies that ‘ everyone who has been the victim ’ of such a breach ‘ shall have an enforceable right to compensation ’ , it in no way follows therefrom that the Court cannot apply Article 50 when it has found that there has been a breach, for example, of paragraph 3; what does follow, and no more, is that in the exercise of the wide competence conferred upon it by Article 50 (art. 50), the Court must take into consideration, among other factors the rule of substance contained in paragraph 5 of Article 5.”

It goes without saying that the Court should take into account any compensation awarded by the national courts under Article 5 § 5. However, in cases in which the national courts do not make an award, as occurred

here, it is up to the Court to make an award in order to avoid giving the impression that the right to compensation is but theoretical and illusory.

As the Court has consistently said, Article 5 § 5 guarantees an enforceable right to compensation to those who have been the victims of arrest or detention in contravention of the other provisions of Article 5. That, to my mind, is what is lacking in the present judgment: compensation for the applicant as a victim of violations of Article 5 §§ 1 and 3.

In short and in conclusion, if the Court finds that the State has failed to make an award of compensation for a violation of Article 5 §§ 1 to 4 , it should go on to assess the compensation that should have been paid in order to remedy the violation of Article 5 § 5.