18.07.2007
PRACTICE DIRECTION^1
JUST SATISFACTION CLAIMS
I. Introduction
1. The award of just satisfaction is not an automatic consequence of a
finding by the European Court of Human Rights that there has been a
violation of a right guaranteed by the European Convention on Human
Rights or its Protocols. The wording of Article 41, which provides
that the Court shall award just satisfaction only if domestic law does
not allow complete reparation to be made, and even then only "if
necessary" (s 'ily a lieu in the French text), makes this clear.
2. Furthermore, the Court will only award such satisfaction as is
considered to be "just" (equitable in the French text) in the
circumstances. Consequently, regard will be had to the particular
features of each case. The Court may decide that for some heads of
alleged prejudice the finding of violation in itself constitutes
adequate just satisfaction, without there being any call to afford
financial compensation. It may also find reasons of equity to award
less than the value of the actual damage sustained or the costs and
expenses actually incurred, or even not to make any award at all. This
may be the case, for example, if the situation complained of, the
amount of damage or the level of the costs is due to the applicant's
own fault. In setting the amount of an award, the Court may also
consider the respective positions of the applicant as the party
injured by a violation and the Contracting State as responsible for
the public interest. Finally, the Court will normally take into
account the local economic circumstances.
3. When it makes an award under Article 41, the Court may decide to
take guidance from domestic standards. It is, however, never bound by
them.
4. Claimants are warned that compliance with the formal and
substantive requirements deriving from the Convention and the Rules of
Court is a condition for the award of just satisfaction.
II. Submitting claims for just satisfaction: formal requirements
5. Time-limits and other formal requirements for submitting claims for
just satisfaction are laid down in Rule 60 of the Rules of Court,
which, in relevant part, provides as follows:
1. An applicant who wishes 10 obtain an award of just satisfaction
under Article 41 of the Convention in the event of the Court finding a
violation of his or her Convention rights must make a specific claim
to that effect.
2. The applicant must submit itemised particulars of all claims,
together with any relevant supporting documents, within the time-limit
fixed for the submission of the applicant's observations on the merits
unless the President of the Chamber directs otherwise.
^1 Issued by the President of the Court in accordance with Rule 32 of
the Rules of Court on
28 March 2007.
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3. If the applicant fails to comply with the requirements set out in
the preceding paragraphs the Chamber may reject the claims in whole or
in part.
Thus, the Court requires specific claims supported by appropriate
documentary evidence, failing which it may make no award. The Court
will also reject claims set out on the application form but not
resubmitted at the appropriate stage of the proceedings and claims
lodged out of time.
III. Submitting claims for just satisfaction: substantive requirements
6. Just satisfaction may be afforded under Article 41 of the
Convention in respect of:
a) pecuniary damage;
b) non-pecuniary damage; and
c) costs and expenses.
1. Damage in general
7. A clear causal link must be established between the damage claimed
and the violation alleged. The Court will not be satisfied by a merely
tenuous connection between the alleged violation and the damage, nor
by mere speculation as to what might have been.
8. Compensation for damage can be awarded in so far as the damage is
the result of a violation found. No award can be made for damage
caused by events or situations that have not been found to constitute
a violation of the Convention, or for damage related to complaints
declared inadmissible at an earlier stage of the proceedings.
9. The purpose of the Court's award in respect of damage is to
compensate the applicant for the actual harmful consequences of a
violation. It is not intended to punish the Contracting State
responsible. The Court has therefore, until now, considered it
inappropriate to accept claims for damages with labels such as
"punitive", "aggravated" or "exemplary".
2. Pecuniary damage
10. The principle with regard to pecuniary damage is that the
applicant should be placed, as far as possible, in the position in
which he or she would have been had the violation found not taken
place - in other words, restitutio in integrum. This can involve
compensation for both loss actually suffered (damnum emergens) and
loss, or diminished gain, to be expected in the future (lucrum
cessans).
11. It is for the applicant to show that pecuniary damage has resulted
from the violation or violations alleged. The applicant should submit
relevant documents to prove, as far as possible, not only the
existence but also the amount or value of the damage.
12. Normally, the Court's award will reflect the full calculated
amount of the damage. However, if the actual damage cannot be
precisely calculated, the Court will make an estimate based on the
facts at its disposal. As pointed out in S: 2 above, it is also
possible that the Court may find reasons in equity to award less than
the full amount of the loss.
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3. Non-pecuniary damage
13. The Court's award in respect of non-pecuniary damage is intended
to provide financial compensation for non-material harm, for example
mental or physical suffering.
14. It is in the nature of non-pecuniary damage that it does not lend
itself to precise calculation. If the existence of such damage is
established, and if the Court considers that an award in money is
necessary, it will make an assessment on an equitable basis, having
regard to the standards which emerge from its case-law.
15. Applicants who wish to be compensated for non-pecuniary damage are
invited to specify a sum which in their view would be equitable.
Applicants who consider themselves victims of more than one violation
may claim either a single lump sum covering all alleged violations or
a separate sum in respect of each alleged violation.
4. Costs and expenses
16. The Court can order the reimbursement to the applicant of costs
and expenses which he or she has incurred - first at the domestic
level, and subsequently in the proceedings before the Court itself -
in trying to prevent the violation from occurring, or in trying to
obtain redress therefor. Such costs and expenses will typically
include the cost of legal assistance, court registration fees and
suchlike. They may also include travel and subsistence expenses, in
particular if these have been incurred by attendance at a hearing of
the Court.
17. The Court will uphold claims for costs and expenses only in so far
as they are referable to the violations it has found. It will reject
them in so far as they relate to complaints that have not led to the
finding of a violation, or to complaints declared inadmissible. This
being so, applicants may wish to link separate claim items to
particular complaints.
18. Costs and expenses must have been actually incurred. That is, the
applicant must have paid them, or be bound to pay them, pursuant to a
legal or contractual obligation. Any sums paid or payable by domestic
authorities or by the Council of Europe by way of legal aid will be
deducted.
19. Costs and expenses must have been necessarily incurred. That is,
they must have become unavoidable in order to prevent the violation or
obtain redress therefor.
20. They must be reasonable as to quantum. If the Court finds them to
be excessive, it will award a sum which, on its own estimate, is
reasonable.
21. The Court requires evidence, such as itemised bills and invoices.
These must be sufficiently detailed to enable the Court to determine
to what extent the above requirements have been met.
5. Payment information
22. Applicants are invited to identify a bank account into which they
wish any sums awarded to be paid. If they wish particular amounts, for
example the sums awarded in respect
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of costs and expenses, to be paid separately, for example directly
into the bank account of their representative, they should so specify.
IV. The form of the Court's awards
23. The Court's awards, if any, will normally be in the form of a sum
of money to be paid by the respondent Government to the victim or
victims of the violations found. Only in extremely rare cases can the
Court consider a consequential order aimed at putting an end or
remedying the violation in question. The Court may, however, decide at
its discretion to offer guidance for the execution of its judgment
(Article 46 of the Convention).
24. Any monetary award under Article 41 will normally be in euros
(EUR, D%) irrespective of the currency in which the applicant
expresses his or her claims. If the applicant is to receive payment in
a currency other than the euro, the Court will order the sums awarded
to be converted into that other currency at the exchange rate
applicable on the date of payment. When formulating their claims
applicants should, where appropriate, consider the implications of
this policy in light of the effects of converting sums expressed in a
different currency into euros or contrariwise.
25. The Court will of its own motion set a time-limit for any payments
that may need to be made, which will normally be three months from the
date on which its judgment becomes final and binding. The Court will
also order default interest to be paid in the event that that
time-limit is exceeded, normally at a simple rate equal to the
marginal lending rate of the European Central Bank during the default
period plus three percentage points.
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1. Арамат - 27.01.2008 09:43:40
А можно на русский перевести?
2. СЕРЖант - 30.01.2008 12:15:15
E-mail: black-white@bk.ru
Полно в сети on-line переводчиков http://online.perevodov.net/Perevodov.net/online-dictionaries/promt.php4?direction=er
3. Anonymous - 07.08.2008 11:37:01
ты думай, что советуешь! еще ни один эл переводчик не смог заменить голову человека, а выдают они, как правило, всякую чушь!!!
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