PARTLY DISSENTING OPINION OF JUDGES Sir Nicolas BRATZA, GAUKUR JÖRUNDSSON AND WILHELMINA THOMASSEN

While we agree that there has been a violation of Article 6 paragraph 1 of the Convention by reason of the length of the proceedings in which the applicants were involved and while we accept that the applicants should be awarded EUR 500 each in respect of legal costs and expenses, we are unable to share the view of the majority of the Chamber that the applicants should also be awarded EUR 1,000 each in respect of non-pecuniary damage. In our view, the circumstances of the present case are such that the finding of a violation should itself amount to sufficient just satisfaction in respect of any non-pecuniary damage suffered.

We recall in this regard that Article 41 requires the Court to afford just satisfaction to the injured party only “if necessary”. The question whether such an award is necessary depends on the circumstances of the individual case. Although it has in recent years been the normal practice of the Court to award compensation where a complaint concerning the length of proceedings has been upheld, such an award should never in our view automatically follow from such a finding. The Court must in principle be satisfied that the unjustified delay in the case has given rise to moral damage, whether in the form of damage to health, anxiety, distress, frustration or otherwise, and that, in all the circumstances, an award of compensation is called for.

We are not satisfied that this is so in the present case. In this regard, we note that the Court has found the applicants’ claim to have suffered injury to health , family life or career in consequence of the length of the proceedings to be unsubstantiated (paragraph 33 of the judgment). We would in addition observe that the applicants were the defendants in the proceedings brought by K, in which he claimed to rescind the contract of sale to the applicants of his property in Florida. K’s claim was upheld by the domestic courts on the ground that the applicants had been unable to rebut the presumption of undue influence created by the discrepancy in the price they had paid K for the property and its value at the time of transfer and by the doctor-patient relationship between the first applicant and K. It is moreover clear from the judgment of the Court of Appeal that the first applicant had enjoyed possession of the property in dispute during the course of the proceedings and had been in receipt of rents from the letting of the property since the date of completion of the sale, subject only to the agreement to allow K to use part of it in the early months following the sale. As is further pointed out in the judgment, the applicants took no steps to apply to the court to expedite the proceedings, although it was open to them to do so if they considered that insufficient progress was being made. While, for the reasons given in paragraph 23 of the judgment, such a failure cannot affect

the responsibility of the respondent State under Article 6 of the Convention to secure that legal proceedings do not exceed a reasonable time, it remains in our view a material factor in determining what, if any, award in respect of non-pecuniary damage should be made under Article 41 of the Convention. In our view, no such award was justified in the present case.