Судебное дело "Рожин против России"
18.02.2011
EUROPEAN COURT OF HUMAN RIGHTS COUR EUROPEENNE DES DROITS DE L'HOMME
PRACTICE DIRECTION1 JUST SATISFACTION CLAIMS
I. Introduction
23. 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.
24. 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.
25. 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.
26. 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
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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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 to 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.
27. 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.
28. 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:
29. pecuniary damage;
30. non-pecuniary damage; and
31. costs and expenses.
1. Damage in general
32. 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.
33. 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.
34. 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).
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35. 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.
36. 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.
3. Non-pecuniary damage
37. 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.
38. 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.
39. 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
40. 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.
41. 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.
42. 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.
43. 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.
44. 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.
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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
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
45. 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).
46. Any monetary award under Article 41 will normally be in euros
(EUR, EUR) 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.
47. 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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