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AL-NASHIF v. BULGARIA JUDGMENT
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
143. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
144. The applicants claimed 60,000 euros (“EUR”) in non-pecuniary
damages for the distress they suffered as a result of the violations of their
Convention rights.
The applicants stressed that their family life had been disrupted and
Mr Al-Nashif's religious freedoms infringed despite the fact that he had
never done anything unlawful. All three applicants had as a result been
deprived of normal family life and lived in uncertainty, being unable to find
a new common family home. The suffering had been aggravated by the
media campaign organised by the authorities.
145. The applicants also stated that they had suffered pecuniary losses as
Mr Al-Nashif had had to sell his business in Smolyan and could not find a
job in Syria. While assessing the losses at EUR 22,000, the applicants did
not claim pecuniary damages, acknowledging that they were unable to
provide documentary proof. They asked the Court instead to take their
losses into account when determining the amount of non-pecuniary
damages.
146. The Government considered these amounts excessive and stated
that the economic situation in Bulgaria should be taken into account.
147. The applicants replied that even if the economic situation might
need to be taken into account to ensure that applicants in different countries
did not receive disproportionately different real values, a reliable criterion,
such as a comparative study of the prices of goods and services, and not the
minimum monthly wage, should be used. Even so, while common goods
were certainly cheaper in Bulgaria than in West European countries, other
goods, such as electronic appliances and cars, were more expensive owing
to the small size of the market. If it accepted the approach proposed by the
Government, the Court might find itself in the awkward position of having
to tell victims of violations what to buy with the compensation awarded.
The Government's reasoning was further flawed in the particular case as the
applicants were now living outside Bulgaria, although they wished to return
there.
148. The Court considers that the applicants must have suffered nonpecuniary damage as a result of the violations of the first applicant's rights
under Article 5 § 4 of the Convention and the violations of the rights of all