PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

Just satisfaction under Article 41 of the Convention: non ‑ pecuniary damage

1. My only disagreement with the judgment concerns point 3 of the operative provisions, dismissing the remainder of the applicant’s claim for just satisfaction.

2. My disagreement is focused, in particular, on the decision not to award the applicant a sum in non-pecuniary damages, a claim which she first made before the Grand Chamber (see paragraph 164 of the judgment).

3. Having found, like all the rest of my eminent colleagues, that there has been a violation of the applicant’s right to respect for her family life under Article 8 of the Convention, I would award the applicant an amount in respect of non-pecuniary damage, as just satisfaction under Article 41 of the Convention. Since, however, I am in the minority, it is not necessary to determine the sum that should have been awarded.

4. In my view, all the requirements of Article 41 are satisfied for granting just satisfaction in the present case: “there has been a violation” of a Convention provision, specifically Article 8; the High Contracting Party concerned allows for no or “only partial reparation”; and it is “necessary” for such an award to be granted to the applicant.

5. I disagree with the judgment (see paragraphs 169-170), which confines the application of Article 41 only to “exceptional situations”. Such an interpretation is overly restrictive and outside the wording of Article 41, and also goes against the principle of the effectiveness of Convention rights.

6. The argument that Article 41 should not be confined only to “exceptional situations” should not be misunderstood as suggesting that every time the Court finds a violation of a Convention right, it must award just satisfaction. The Court is to award non-pecuniary damage if it considers that this is “necessary”. However, what is “necessary” depends on the facts of each case and does not require the existence of any “exceptional” circumstances. In the present case, taking into account all of the circumstances and the impact the violation had on the applicant, the Court should have found it necessary to make an award in respect of just satisfaction, which, to my regret, it did not do.

7. I disagree with the practice, followed also by the Court in the present case, whereby, if an applicant fails to submit a claim for just satisfaction in the Chamber procedure, she or he cannot do so before the Grand Chamber. The Court has based this practice on Article 43 of the Convention, concerning “referral to the Grand Chamber” (see paragraph 168 of the judgment); however, such a practice cannot be supported expressly or implicitly from any provision of Article 43.

8. In my humble view, just satisfaction is inherently interwoven with the nature of a human-rights violation and is an implicit part or element of the complaint alleging such a violation. Hence, I submit that the Court has inherent power to award just satisfaction when the prerequisites of Article 41 are met, irrespective of whether a specific claim has been made for non-pecuniary damages, before either the Chamber Court or the Grand Chamber. The Court has discretionary power to decide what is “necessary” under Article 41, but if it finds that all the requirements of Article 41 are met, it is under an obligation to award just satisfaction.

9. My view is also that the finding of a violation of Article 8 does not constitute sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant. Article 41 of the Convention, as worded, cannot be interpreted as meaning that “[the] finding [of] a violation of a Convention provision” could in itself constitute sufficient “just satisfaction to the injured party”, because the former is a prerequisite for the latter and one cannot take them to be the same.

10. Failure to award the applicant a sum in non-pecuniary damages for the violation of her Article-8 right amounts, in my view, to rendering the protection of her right illusory and fictitious. This runs counter to the Court’s case-law to the effect that the protection of human rights must be practical and effective and not theoretical and illusory.