Общественное объединение "Сутяжник"

Главная страница

Новости судебных дел

Судебное дело "Рожин против России"


Письмо Европейского суда по Дмитрию Рожину

 

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.

                                     2

   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).

   #1701551

                                     3

   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.

   #1701551

   4

   ">

   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.

   #1701551


Если вы хотите поддержать нашу деятельность, то введите в поле ниже сумму в рублях, которую вы готовы пожертвовать и кликните кнопку рядом:

рублей.      


Поделиться в социальных сетях:

  Diaspora*

Комментарии:

Добавить комментарий:

Ваше имя или ник:

(Войти? Зарегистрироваться? Забыли пароль? Войти под OpenID?)

Ваш e-mail (не обязателен, если укажете - будет опубликован на сайте):

Ваш комментарий:

Введите цифры и буквы с картинки (защита от спам-роботов):