PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. The applicants’ complaint is that, as convicted prisoners serving their sentences, they were subjected to a blanket ban on voting in two legislative elections for the Bulgarian Parliament held respectively on 4 April 2021 and 11 July 2021, contrary to Article 3 of Protocol No. 1 to the Convention; they also claimed an award for the non-pecuniary damage they had sustained as well as for their legal costs and expenses.

2. I voted in favour of points 1 and 2 of the operative provisions of the judgment, regarding, respectively, the admissibility of the applications and the finding of a violation of Article 3 of Protocol No. 1, but against points 3 and 4 of the said provisions, regarding the decision not to make a monetary award in respect of non-pecuniary damage or to award legal costs and expenses, respectively.

3. Regarding the applicants’ claim for non-pecuniary damage, the judgment only states that they “made claims for non-pecuniary damage” (see paragraph 20 of the judgment), without referring to what the applicants specifically argued in their observations on just satisfaction, the relevant part of which reads as follows:

“The applicants claim non-pecuniary damage for two violations of Article 3 of Protocol No. 1 of the Convention in the amount of 3,000 euros (three thousand euros) for each applicant. The applicants base their claim on the recent judgment in the case Anatoliy Marinov v. Bulgaria (no. 26081/17, judgment of 15 February 2022). In that case the applicant was deprived of the right to vote in parliamentary elections on the basis of the same provisions of the Constitution and the Election Code as the applicants in the present case. He was awarded 3,000 euros in respect of non-pecuniary damage, the same amount the applicants claim in the present case.”

The present judgment, however, without being consistent with the Anatoliy judgment, which has become final, makes the following statement:

“21. The Court has found violations of Article 3 of Protocol No. 1 in a number of cases concerning prohibitions on prisoners’ right to vote in various countries (see paragraph 15 above, as well as Firth and Others v. the United Kingdom , nos. 47784/09 and 9 others, § 18, 12 August 2014, with further references). In the vast majority of these cases, the Court expressly declined to make any award of damages. Similarly, in the present case the Court concludes that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.”

Also in point 3 of the operative provisions of its judgment, the Court holds “that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants”.

4. It is my submission that 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 for the injured party”. 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 (see, similarly, paragraph 7 of the joint partly dissenting opinion that I wrote with Judge Felici in Grzęda v. Poland [GC], no. 43572/18, 15 March 2022).

5. Article 41 of the Convention sets out the following three requirements or criteria which must be met 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.

6. The Court in the present case 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.

7. Thus, since Article 41 provides that three requirements must be satisfied in order for the Court to afford just satisfaction, there is a logical fallacy in deciding that the existence of one of them in itself constitutes sufficient satisfaction.

8. To my regret, point 3 of the operative provisions reflects a failure 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 Article 3 of Protocol No. 1, which the judgment finds to have been violated in the present case. If their purpose were the same, then Article 41 would be rendered futile, which would lead to absurd results.

9. In paragraph 21 of the judgment, quoted above, the Court without providing any legal explanation, but simply referring, in the abstract and without substantiation, to the “vast majority of cases” in which a similar violation has been found and where a claim for non-pecuniary damage has been denied, states that: “[s]imilarly, in the present case the Court concludes that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicants”. With all due respect, by stating this – as reflected in point 3 of its operative provisions – the judgment erroneously conflates the first and the second requirements of Article 41 of the Convention and actually treats them as one and the same, even though the Court does not expressly refer, when dealing with just satisfaction, to the requirements under that Article. In any event, in paragraph 21 of the judgment and in point 3 of the operative provisions, only an implicit reference is made to the first requirement of Article 41 (the finding of a violation), entailing per se the rejection of the claim for non-pecuniary damage, even though the word “requirement” is again not mentioned by the Court.

10. Consequently, with all due respect, the reason provided for denying a monetary award in paragraph 21 of the judgment does not seem to be a legitimate and valid ground, since it has no legal basis in Article 41 and erroneously conflates the merits of the case and the just satisfaction issue.

11. The failure to award the applicants a sum in respect of non-pecuniary damage for the violation of their right amounts, in my view, to rendering the protection of their rights 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, as required by the principle of effectiveness which is inherent in the Convention (see Artico v. Italy , 13 May 1980, §§ 33 and 47-48, Series A no. 37). For the applicants’ right under Article 3 of Protocol No. 1 to be practical and effective and not theoretical and illusory, this substantive Article together with Article 41 of the Convention must be applied by the Court, not only by finding a violation of the Article 3 of Protocol No. 1, but also by awarding the applicant just monetary compensation for non ‑ pecuniary damage under Article 41.

12. As stated above, all three requirements of Article 41 must be met cumulatively. Since the Court holds that there has been a violation of Article 3 of Protocol No. 1 of the Convention, it is clear that the first requirement of Article 41 is met.

13. As regards now the second requirement of Article 41, namely, that “the internal law of the High Contracting Party concerned allows only partial [and therefore not full] reparation to be made”, it is clear that it also applies in the present case.

14. Turning now to the third requirement of Article 41, namely, that it is necessary to afford just satisfaction (the necessity requirement), it is obvious that this requirement is also satisfied in the present case, because the applicants suffered distress and anxiety on account of the violation that has been found (and in paragraph 21 the Court accepts that non-pecuniary damage may have been sustained). As to this necessity requirement, no mention is made of it in the judgment. Nor are there any reasons indicated as to why, despite the distress and anxiety caused to the applicants, the discretion of the Court can be exercised in such a manner as not to award any sum for non-pecuniary damage. If the Court wishes to apply this requirement, it should state and explain it clearly, thus conferring transparency, clarity and consistency on its pronouncement.

15. It is my submission (which I am expressing for the first time in a separate opinion) that, though the principal aim of Article 41 is to provide an applicant with just satisfaction – if, of course, the requirements of this provision are fulfilled – an incidental and complementary aim of Article 41 is to make or encourage the member States to fulfil their obligations under the Convention in the cases where failure to do so may lead to persons suffering distress or inconvenience or material damage. Not making a member State pay an award for non-pecuniary damage, when victims of human rights indeed suffer non-pecuniary damage, does not help in the strengthening of the rule of law of that State, with the possible result that similar violations may be repeated in the future. This idea of the incidental aim of Article 41 stems from the fact that the first requirement of this Article is the finding of a violation under the Convention, with which the Court is competent to deal, not only in a theoretical manner of making a declaration of a violation, but also in a practical manner of granting redress.

16. As I have argued above, failure to award the applicants a sum in respect of non-pecuniary damage, for the violation of their right safeguarded by Article 3 of Protocol No. 1, amounts, in my view, to rendering the protection of their said right illusory and fictitious. I would thus award the applicants an amount in respect of non-pecuniary damage, by way of just satisfaction under Article 41 of the Convention. As I am in the minority, however, it is not necessary for me to determine the sum that should have been awarded.

17. In their observations on just satisfaction, the applicants explained their legal costs and expenses, which amounted to 2,165 euros. The applicants were represented in the proceedings before the Court by the chairman of the Bulgarian Helsinki Committee, a non-governmental organisation based in Sofia (see paragraph 2 of the judgment).

18. I disagree with the majority in dismissing the remainder of the applicants’ claim for just satisfaction, namely, their claim covering legal costs and expenses.

19. The majority refused to award the applicants any legal costs and expenses for the following reasons:

“24. The Court established in its 2016 Chamber judgment in Kulinski and Sabev , cited above, that the existing electoral legislation in Bulgaria precluding prisoners from voting was incompatible with Article 3 of Protocol No. 1 to the Convention. This finding was repeated in the case of Dimov and Others v. Bulgaria ([Committee], nos. 45660/17 and 13 others, 8 June 2021). Subsequent applicants lodging an application with the Court concerning their ineligibility to vote in an election needed only to complete an application form in which they (i) cited Article 3 of Protocol No. 1; (ii) stated that they had been in post-conviction detention in prison on the date of an identified election to which that provision applies; and (iii) confirmed that they had been otherwise eligible to vote in the election in question (in particular, that they had satisfied the applicable age and nationality requirements). It is clear that the lodging of such an application was straightforward and did not require legal assistance (compare Firth and Others , cited above, § 21).

25. In these circumstances, the legal costs claimed by the present applicants cannot be regarded as reasonably and necessarily incurred (ibid.). The Court therefore declines to make any award in respect of legal costs.”

20. I have a fundamental disagreement with the majority, not so much for their failure to award the applicants their legal costs and expenses, which have been actually and necessary incurred and were reasonable as to quantum, but rather with their reasoning for not awarding any legal costs and expenses at all, namely, because “it is clear that the lodging of such an application was straightforward and did not require legal assistance”.

21. The right to have a lawyer is not only an extremely important human right in criminal cases which is considered by Article 6 § 3 (c) as a “minimum right” for a fair trial, but it is also a very important and inalienable right in any other case of a civil or administrative nature and should not only be respected but also safeguarded by the Court. If there is a right under the Convention, there is also a right of its holder who alleges a violation to have legal assistance and to seek protection before the Court. Of course, the right to have legal assistance exists irrespective of whether there is a right under the Convention or under domestic law or even if there is no right and a person wishes to have legal advice. The applicants in the present case won their case before the Court having had legal assistance. It is quite uncertain what would have been the result of the case without such assistance. The Court decided the case in a Chamber formation and not in a Committee, which shows that the Court has treated the case as a non-repetitive one.

22. The need for legal assistance, encompassing the right to have a lawyer, should not depend on whether in the view of the Court – and in particular after it has decided a case and found a violation of a Convention provision – the case could be handled easily and without legal assistance. I disagree with making any statement which may be interpreted or taken as discouraging persons to come to the Court with legal assistance. This would not only lead to watering down the inalienable right to have legal assistance but may also make the Court and its case-law in the future poorer, because the enrichment and progressiveness of the case-law depends to a great extent to the assistance and contribution of the applicants’ lawyers.

23. Article 19 of the Practice Direction of the Court on “just satisfaction claims”, contained in the Rules of the Court, provides that for the Court to assess whether an award in respect of legal costs and expenses is a reasonable one, it “may also take into account whether the violation found falls into the category of ‘well-established case-law’”. This, however, does not mean that no legal costs or expenses at all can be awarded in a case falling into that category. “Taking into account” the reasonableness of the quantum of legal costs and expenses in an assessment and “and not awarding legal costs and expenses at all” are quite different issues. In any event, the present case does not fall into “well-established case-law”, and that is why it was allocated to, and decided in, a Chamber rather than a Committee of the Court.

24. Irrespective of whether or not the legal costs of the applicants were awarded, the Court should at least have awarded them their expenses. For example, the postage for their application to the Court cost 5 euros (Exhibit no. 3 to their observations) which they would have had to pay even if they had appeared before the Court without legal representation, if they wanted their application to reach the Court. However, the Court does not even address the expenses part of their claim.

APPENDIX

List of applicants:

Application no. 42286/21

No.

Applicant’s Name

Year of birth

Nationality

Place of detention at the relevant time

1.

Georgi Todorov TINGAROV

1981

Bulgarian

Pazardzhik Prison

2.

Nikola Ivanov DOBREVSKI

1966

Bulgarian

Pazardzhik Prison

3.

Iliyan Georgiev DOYCHEV

1992

Bulgarian

Pazardzhik Prison

4.

Lazar Elkov ILIEV

1999

Bulgarian

Pazardzhik Prison

5.

Anton Lozanov KMETSKI

1985

Bulgarian

Pazardzhik Prison

6.

Ivaylo Georgiev MURDZHEV

1979

Bulgarian

Pazardzhik Prison

7.

Georgi Petrov RUDOV

1964

Bulgarian

Pazardzhik Prison

8.

Ivo Plamenov STOYANOV

1978

Bulgarian

Pazardzhik Prison