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CASE OF BRYAN AND OTHERS v. RUSSIAPARTLY DISSENTING OPINION OF JUDGE SERGHIDES
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Document date: June 27, 2023
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CASE OF BRYAN AND OTHERS v. RUSSIAPARTLY DISSENTING OPINION OF JUDGE SERGHIDES
Doc ref: • ECHR ID:
Document date: June 27, 2023
Cited paragraphs only
PARTLY DISSENTING OPINION OF JUDGE SERGHIDES
1. The applicants are thirty Greenpeace activists, including two freelance journalists. Their application concerns a protest action attempted by them at the Prirazlomnay offshore oil drilling platform, located in the Pechora Sea within the exclusive economic zone (“EEZâ€) of the Russian Federation, and their subsequent arrest and detention. In particular they complained under Article 5 of the Convention that their initial arrest and detention had been arbitrary and not in accordance with the law and they further complained under Article 5 § 1 of the Convention that their subsequent pre-trial detention had not been lawful or based on any reasonable suspicion of their having committed piracy. Moreover, they complained that their apprehension, detention and prosecution had interfered with their right to freedom of expression guaranteed by Article 10 of the Convention. Lastly, they claimed non-pecuniary damage, but left the determination of the amount to the Court’s discretion.
2. I voted in favour of all points of the operative provisions of the judgment save for point 7, which provides “that the finding of a violation constitutes in itself just satisfaction for any non-pecuniary damage sustained by the applicantsâ€. Though I would argue that it is not necessary for the Court to award the applicants any monetary amount for non-pecuniary damage, I voted against point 7, because this point includes a reason for not awarding the applicants any monetary amount for non-pecuniary damage and I do not agree with that reason.
3. The judgment in paragraph 103, under the head of Article 41 of the Convention, already gives a reason for the finding that no award for non-pecuniary damage should be made to the applicants, despite admitting that they did sustain non-pecuniary damage as a result of the violation of their rights under Articles 5 and 10 of the Convention. The reason provided in that paragraph reads as follows: “... since the applicants have already obtained financial compensation in connection with the events that served as the basis of this application (see paragraph 31 above) and having regard to equitable considerations, the Court finds that no award for non-pecuniary damage shall be afforded to the applicantsâ€. With this reason I fully agree, and I certainly take the view that, given the reason provided in paragraph 103, it is not necessary to award the applicants any monetary amount for non-pecuniary damage.
4. However, in point 7 of the operative provisions of the judgment another reason is provided for not granting the applicants any award in respect of non ‑ pecuniary damage. This reason is not only different, but it also contradicts that given in paragraph 103 of the judgment. Under point 7 of the operative provisions it is held that the applicants have been afforded sufficient just satisfaction for any non-pecuniary damage sustained by them, simply because the Court has found a violation (in relation to their complaints under Articles 5 and 10), while under paragraph 103 of the judgment it is held that no award for non-pecuniary damage shall be made to them because they have already obtained financial compensation in connection with the events that served as the basis of this application. And the contradiction lies in the fact that in point 7 “sufficient just satisfaction†for non-pecuniary damage is considered to be awarded by the Court in the form of a finding a violation of Articles 5 and 10 of the Convention, while in paragraph 103 of the judgment no award for non ‑ pecuniary damage is afforded to the applicants at all.
5. In my submission, Article 41 of the Convention, as worded, cannot be interpreted as meaning that “[the] finding [of] a violation of a Convention provision†can in itself constitute sufficient “just satisfaction to the injured partyâ€. This is because “the finding of a violation†is one of the prerequisites “for affording just satisfaction†and the Court cannot treat them as being on a par.
6. To be clearer, Article 41 of the Convention sets out the following three requirements or criteria which must be satisfied cumulatively for the Court to award just satisfaction, including, of course, satisfaction for non-pecuniary damage (the numbering is mine): (a) the Court finds that there has been a violation of the Convention or the Protocols thereto; (b) the internal law of the High Contracting Party concerned allows only partial reparation to be made; and (c) the Court considers it necessary to afford just satisfaction.
7. The Court in the present case under point 7 of the operative provisions of its judgment confines itself to the first requirement of Article 41, namely, the finding of a violation, and it regrettably considers, without any justification or explanation, that the fulfilment of this requirement in itself constitutes sufficient just satisfaction for non ‑ pecuniary damage. What the Court is engaging in here is a circular argument: the finding of a violation which is a sine qua non for just satisfaction becomes the just satisfaction itself. In my opinion, such an interpretation and application of Article 41 has no foundation either in the wording or in the purpose of that provision.
8. Thus, when a Convention provision, namely Article 41, asks for three requirements to be satisfied in order to afford just satisfaction, there is a logical fallacy in deciding that the existence of one of them in itself constitutes sufficient satisfaction.
9. To my regret, point 7 of the operative provisions omits to see that the purpose of Article 41, albeit related, is not the same as the purpose of the substantive provisions of the Convention securing human rights, such as Articles 5 and 10 which the judgment finds to have been violated in the present case. If their purpose was the same, then Article 41 would be rendered futile, which would lead to absurd results.
10. On the other hand, paragraph 103 of the judgment provides a good reason for not awarding non-pecuniary damage to the applicants. For me, this reason may come under the third requirement of Article 41, namely, “the Court considers it necessary to afford just satisfactionâ€, which is not satisfied in the present case. Consequently, since all three requirements of Article 41 must be met cumulatively, the lack of this requirement leads to the conclusion that no award should be made in respect of non-pecuniary damage.
11. To sum up, the reason given in paragraph 103 is a sound, legitimate and valid ground having a legal basis in Article 41, while the reason given in point 7 is not a legitimate and valid ground, since it has no legal basis in Article 41 and erroneously confuses the merits of the case with the just satisfaction, thus rendering Article 41 futile.
12. For the foregoing reasons, I voted against point 7 of the operative provisions of the judgment, but I agree with my eminent colleagues that no amount should be afforded to the applicants for non-pecuniary damage. In my view, point 7 of the operative provisions should simply state that “the Court holds that it does not consider it necessary to award the applicants any non-pecuniary damageâ€, so as to be in line with what it is stated in paragraph 103 of the judgment, or merely dismiss the claim without giving a reason, as no such explanation is required in the operative provisions.
APPENDIX
No.
Applicant’s surname
Applicant’s first name(s)
Year of birth
Nationality
Date of decision by the Leninskiy District Court of Murmansk ordering pre ‑ trial detention
Date of dismissal by the Murmansk Regional Court of the appeal against pre-trial detention
Date of hooliganism charges
Name of court granting bail
Date of court decision on bail
Date of release
Akhan
Gizem
1988
Türkiye
26/09/2013
16/10/2013
25/10/2013
Primorskiy District Court
21/11/2013
22/11/2013
Allakhverdov
Andrey
1962
Russian Federation
26/09/2013
08/10/2013
24/10/2013
Kalininskiy District Court
18/11/2013
21/11/2013
Alminhana Maciel
Ana Paula
1982
Brazil
29/09/2013
24/10/2013
31/10/2013
Primorskiy District Court
19/11/2013
20/11/2013
Ball
Philip Edward
1971
United Kingdom
26/09/2013
11/10/2013
28/10/2013
Kalininskiy District Court
22/11/2013
25/11/2013
Beauchamp
Jonathan David
1962
New Zealand
26/09/2013
16/10/2013
31/10/2013
Kalininskiy District Court
21/11/2013
22/11/2013
Bryan
Kieron John
1984
United Kingdom
26/09/2013
11/10/2013
28/10/2013
Primorskiy District Court
20/11/2013
22/11/2013
D’Alessandro
Cristian
1981
Italy
26/09/2013
15/10/2013
30/10/2013
Kalininskiy District Court
19/11/2013
21/11/2013
Dolgov
Roman
1969
Russian Federation
26/09/2013
09/10/2013
24/10/2013
Kalininskiy District Court
22/11/2013
22/11/2013
Dziemianczuk
Tomasz
1976
Poland
26/09/2013
21/10/2013
30/10/2013
Kalininskiy District Court
19/11/2013
21/11/2013
Harris
Alexandra Hazel
1986
United Kingdom
26/09/2013
18/10/2013
29/10/2013
Primorskiy District Court
20/11/2013
22/11/2013
Haussmann
David John
1964
New Zealand
26/09/2013
14/10/2013
30/10/2013
Primorskiy District Court
19/11/2013
21/11/2013
Hewetson
Francis Patrick Michael
1965
United Kingdom
29/09/2013
15/10/2013
28/10/2013
Kalininskiy District Court
21/11/2013
22/11/2013
Jensen
Anne Mie Roer
1987
Denmark
26/09/2013
18/10/2013
31/10/2013
Primorskiy District Court
20/11/2013
21/11/2013
Litvinov
Dimitri
1962
USA and Sweden
29/09/2013
23/10/2013
29/10/2013
Kalininskiy District Court
22/11/2013
22/11/2013
Oulahsen
Faiza
1987
Netherlands
29/09/2013
18/10/2013
31/20/2013
Primorskiy District Court
20/11/2013
22/11/2013
Paul
Alexandre
1978
Canada
26/09/2013
18/10/2013
28/10/2013
Primorskiy District Court
21/11/2013
22/11/2013
Perez Orsi
Miguel Hernan
1973
Argentina
26/09/2013
23/10/2013
28/10/2013
Kalininskiy District Court
19/11/2013
22/11/2013
Perrett
Anthony Ian
1980
United Kingdom
29/09/2013
16/10/2013
29/10/2013
Kalininskiy District Court
20/11/2013
22/11/2013
Pisanu
Francesco
1975
France
26/09/2013
16/10/2013
31/10/2013
Kalininskiy District Court
19/11/2013
21/11/2013
Rogers
Iain
1976
United Kingdom
27/09/2013
22/10/2013
28/10/2013
Kalininskiy District Court
21/11/2013
22/11/2013
Russell
Colin Keith
1954
Australia
26/09/2013
17/10/2013
30/10/2013
St Petersburg City Court
28/11/2013
29/11/2013
Ruzycki
Paul Douglas
1965
Canada
26/09/2013
24/10/2013
31/10/2013
Primorskiy District Court
19/11/2013
22/11/2013
Saarela
Sini Annukka
1981
Finland
29/09/2013
21/10/2013
30/10/2013
Primorskiy District Court
19/11/2013
21/11/2013
Sinyakov
Denis
1977
Russian Federation
26/09/2013
08/10/2013
29/10/2013
Kalininskiy District Court
18/11/2013
21/11/2013
Speziale
Camila
1992
Argentina
26/09/2013
14/10/2013
24/10/2013
Primorskiy District Court
19/11/2013
21/11/2013
Ubels
Mannes
1971
Netherlands
29/09/2013
17/10/2013
30/10/2013
Primorskiy District Court
20/11/2013
22/11/2013
Weber
Marco Paolo
1985
Switzerland
26/09/2013
21/10/2013
30/10/2013
Kalininskiy District Court
20/11/2013
22/11/2013
Willcox
Peter Henry
1953
USA
26/09/2013
14/10/2013
28/10/2013
Kalininskiy District Court
20/11/2013
22/11/2013
Yakushev
Ruslan
1980
Ukraine
29/09/2013
24/10/2013
28/10/2013
Primorskiy District Court
21/11/2013
22/11/2013
Zaspa
Yekaterina
1976
Russian Federation
26/09/2013
08/10/2013
25/10/2013
Kalininskiy District Court
18/11/2013
21/11/2013
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