PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. The applicants’ complaint concerns the impossibility for them under the domestic-law provisions to obtain compensation for the death of a close relative of theirs, who was killed in a car crash caused by a mentally ill person.

2. I voted in favour of points 1-4 of the operative provisions of the judgment but against point 5. The latter point dismisses the remainder of the applicants’ claim for just satisfaction and concerns the claim for pecuniary damage mentioned in paragraph 70 of the judgment, in particular, the amount of about 1,260 euros (EUR) paid by the applicants for Mr Stanev’s funeral and the dismantling and removal of his car after the crash. The dissenting aspect of my opinion focuses on this point.

3. Moreover, in concurring with the finding of a positive procedural violation by the State under Article 2, I take the view that it should not only relate to the failure of domestic-law provisions to provide for any compensation in respect of non-pecuniary damage, as the Court confines itself to saying in paragraph 66 of the judgment, but also to the failure of domestic-law provisions to provide for any compensation in respect of pecuniary damage. With all due respect, paragraphs 1 and 32 of the judgment are somewhat misleading and erroneous, as they confine the applicants’ claim along with the subsequent discussion and the finding of the Court only to “moral” compensation, i.e. non-pecuniary damage, but not also to pecuniary damage.

4. The judgment, in paragraphs 70, 72 and 73, acknowledges that there is a claim by the applicants in respect of pecuniary damage, then discusses it, and decides on it; hence, there is an apparent contradiction since there is no justification at all in paragraphs 1 and 32 for limiting the applicants’ complaint only to non-pecuniary damage. In fact, a claim for pecuniary damage is clearly made and substantiated in the applicants’ observations. Also, at the end of the annex (on additional allegations on the alleged violations) to their application filed on 27 September 2012 in the old application form provided for by Rule 47 of the Rules of Court, the applicants concluded that there had been a violation of Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, because they had been deprived of any opportunity to obtain redress, though it is undisputed that they suffered serious non-pecuniary damage. It is apparent from this conclusion that their claim relates to their deprivation of any opportunity to obtain redress, including, of course, redress for both pecuniary and non-pecuniary damage regarding which they make no differentiation in the rest of their said pleading.

5. The fact that the applicants emphasised in the conclusion of the above-mentioned annex that the non-pecuniary damage caused to them was serious and undisputed does not negate what they had just said in the previous part of their concluding sentence, which covers both non-pecuniary and pecuniary damage. It is understandable why they laid express emphasis on their claim for non-pecuniary damage, since that claim was for EUR 70,000 while their claim for pecuniary damage was only for about EUR 1,260, but this is not a reason to ignore the latter complaint under the Law part of the judgment and in particular when discussing and deciding on the alleged violation under Article 2 of the Convention.

6. Paragraph 65 of the judgment states that there is no doubt that the domestic-law provisions do not cover damage caused by a person who was not criminally and civilly liable, albeit with valid civil-lability insurance. Though it is apparent from this paragraph that the lack of domestic-law provisions to cover damage applies to both non-pecuniary and pecuniary damage, the next paragraph, namely paragraph 66, concludes that this lack of compensation relates to non-pecuniary damage without also mentioning pecuniary damage. However, paragraph 67 of the judgment as well as point 3 of its operative provisions rightly formulate the violation in a more general manner, namely, a violation of the positive procedural obligation of the State under Article 2, without, at the same time, making any distinction between pecuniary and non-pecuniary damage or confining the violation only to non ‑ pecuniary damage.

7. Regarding the applicants’ claim for pecuniary damage mentioned in paragraph 70 of the judgment, it is stated in paragraph 73 that “the Court, like the Government, does not discern any causal link between the violation found and the pecuniary damage alleged”, and that “it therefore rejects this claim”. Reference is made in paragraph 73, within brackets, to paragraph 81 of the judgment in Movsesyan v. Armenia (no. 27524/09, 16 November 2017).

8. There is a difference, however, between the present case and Movsesyan , cited above. In the latter case, the amount claimed in respect of pecuniary damage, including expenses for funeral services and the erection of a gravestone, was not supported by any evidence (see paragraph 80 of that judgment where that is what the Government argued and the Court seemed to have accepted). On the other hand, it is clear from paragraph 70 of the present judgment that the applicants have indeed presented invoices in respect of the sum paid by them for Mr Stanev’s funeral and for the dismantling and removal of his car after the crash. In their observations, the applicants alleged that they had paid these invoices. Therefore the present case can be distinguished from the Movsesyan case.

9. I am unable to agree with the majority’s finding in paragraph 73 of the present judgment, namely that there is no causal link between the violation found and the pecuniary damage claimed. Neither the Court in Movsesyan nor the Court in the present case explains why it discerns no such causal link. As is clear from paragraphs 65-67 of the present judgment, and point 3 of its operative operations, the violation found in the present judgment is a violation of the positive procedural obligation of the respondent State under Article 2 of the Convention, and, in particular, the failure of the respondent State to provide for a system allowing appropriate redress, as required under this Convention provision. Consequently, there is a causal link between the procedural violation found by the judgment and the pecuniary damage claimed.

10. Furthermore, the actual complaint of the applicants relies on Articles 13 and 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, in that they had been unable to obtain compensation as indirect victims for their relative’s death and the Court, being master of the characterisation to be given in law to the facts of the case, rightly decided to examine the complaint under Article 2 of the Convention (see paragraph 33 of the judgment). Thus one must not lose sight of the fact that the actual claim, as I have explained above, concerned the applicants’ inability to obtain compensation for both pecuniary and non-pecuniary damage. Although the judgment examines the applicants’ complaint under a different provision from those on which they based their application, i.e. Article 2, and finds a procedural violation, when it comes to the issue of pecuniary damage, however, it regrettably discerns no causal link between the violation found and the actual claim for pecuniary damage. In their observations, the respondent Government alleged that the pecuniary damage the applicants claimed to have sustained was rather the “generally direct and immediate consequence from [ sic ] the tort”. This argument is not discussed by the Court in its judgment and the Court does not even make mention of it. In my view, the tort, the death of the applicants’ relative and the procedural violation are links in the same chain of events and the last link in this chain is the procedural violation with which the pecuniary damage claimed has a direct causal link.

11. If the Court were to find that the positive procedural obligation related not only to the non-pecuniary damage but also to the pecuniary damage, as I do, the causal link between the violation found and the pecuniary damage alleged would be even stronger.

12. Article 41 of the Convention, providing for “just satisfaction”, applies in relation to “a violation of the Convention or the Protocols thereto”, and it does not distinguish between a (positive) substantive violation and a (positive) procedural violation; therefore, it applies in relation to both. As with a violation of the positive substantive obligation of the State, a violation of a positive procedural obligation of the State under the Convention can justify granting an award by the Court not only for non-pecuniary damage but also for pecuniary damage.

13. With the utmost respect to the majority, the fact of not awarding the applicants the pecuniary damage claimed as stated in paragraph 70 of the judgment, has the effect, in my view, of rendering the applicants’ right under Article 2 of the Convention, regarding this aspect of its protection, not practical and effective but theoretical and illusory, contrary to the overarching and fundamental principle of the Convention, the principle of the effective protection of human rights, well known as the principle of effectiveness.

14. In conclusion, it cannot be fair to the applicants within the meaning of Article 41 of the Convention not to afford them “just satisfaction” regarding the pecuniary damage which they have demonstrably sustained as a result of their relative’s death.

15. In view of the above, I would make an award to the applicants for the pecuniary damage claimed and also proved to have been sustained by them.