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You are here: BAILII >> Databases >> The Law Commission >> Damages Under the Human Rights Act (Report) [2000] EWLC 266(3) (October 2000) URL: http://www.bailii.org/ew/other/EWLC/2000/266(3).html Cite as: [2000] EWLC 266(3) |
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PART III
JUST SATISFACTION IN STRASBOURG
1. INTRODUCTION
3.1 As already noted, section 8(4) requires the domestic court, in deciding whether to award damages or the amount of an award, to take into account the principles applied by the Strasbourg Court in exercising its power to afford just satisfaction to the victims of Convention breaches. This power is set out in Article 41 (formerly Article 50)[1] of the Convention which states:
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.
3.3 The following discussion is directed to the two main categories of financial award made by way of just satisfaction by the Strasbourg Court: pecuniary and non-pecuniary loss. For reasons explained below,[2] we have not dealt in detail with awards for costs and expenses.
2. GENERAL POINTS ON STRASBOURG PRACTICE
(1) Absence of clear principles
3.5 The first is that the Strasbourg Court does not apply a strict doctrine of precedent (though as a matter of practice the Court will generally regard itself as bound by its case-law).[3] This may contribute to the fact that the Strasbourg Court treats questions of 'just satisfaction' as requiring an equitable case-by-case assessment rather than the application of binding principles. The Court has placed emphasis on the facts of individual cases, often without considering or distinguishing cases involving similar facts. Apparently irreconcilable inconsistencies sometimes result.[4]
3.6 The second point is closely related. Within Europe there are diverse traditions as to the calculation of damages. The courts in the United Kingdom have developed relatively detailed rules on the assessment of damages, particularly in relation to instructions to juries[5] and non-pecuniary loss from personal injuries.[6] The law relating to damages has not been developed to the same extent in all of the continental legal systems.
3.7 On the one hand, the German and Dutch systems have rules as detailed as the English.[7] Their theories of causation are highly developed, and pecuniary and non-pecuniary loss are dealt with under clearly separated headings. In contrast, French and Belgian courts proceed "empirically" in matters of causation, with a minimum of theorising and "swayed by considerations of fairness as much as causal potency".[8]
3.8 Thus, in French private law, for example, the measure of damages is regarded as a matter for the 'sovereign power of assessment'[9] of the judge of first instance. the relevant damage.[10] This is always treated as a question of fact, thus leaving the judge in the lower court with a degree of unstructured discretion to adjust the award as he or she sees fit. As long as the award is framed properly in law, the appeal courts will not interfere with it. Conventional scales are sometimes used, but must not be treated as rules of law. In particular, French judges do not draw clear distinctions between different heads of loss.[11] The Strasbourg practice appears to be close to the French tradition.
strike a balance between exercising moral leadership in the field of human-rights law and ensuring that it does not...alienate the support for the ECHR in particular States, particularly in relation to issues...which affect deeply felt and widely varied moral and social sensibilities.[12]
Karen Reid also emphasises the Strasbourg Court's international role:
The Court has not been unduly generous in its approach to awarding compensation under any of the heads. The emphasis is not on providing a mechanism for enriching successful applicants but rather on its role in making public and binding findings of applicable human rights standards.[13]
3.10 At a more practical level, the character and size of the Court inevitably affects its ability to deal with detailed issues of damages in a consistent way. It is a large body, sitting in a number of different constitutions.[14] The judges are drawn from different backgrounds and diverse jurisdictions, and will have varied experiences of awarding damages. It is inevitable that their views as to the proper level of compensation, and the basis on which it should be assessed, will differ. Furthermore, the Court is highly dependent on the information and arguments put before them by the parties, which may vary considerably from case to case.[15]
3.11 In those circumstances, at least in relation to non-pecuniary loss, the assessment of damages is "inevitably something of a jury exercise".[16] It would in any event be impossible to draw direct comparisons between the actual figures for particular types of injury or loss in different countries, since the relative value of money (say, between Turkey and Germany) is so different. In relation to pecuniary loss, the problem is exacerbated by a structure which is not well-suited to the resolution of conflicting valuation evidence.[17]
3.12 Against this background, the absence of clear principle in the Strasbourg jurisprudence on damages is understandable. Nonetheless, the Strasbourg Court has been strongly criticised for its approach to Article 41 and several commentators have cast doubt on the feasibility of establishing solid principles from the Court's case-law on just satisfaction. As Dinah Shelton says: It is rare to find a reasoned decision articulating principles on which a remedy is afforded. One former judge of the European Court of Human Rights privately states: 'We have no principles'. Another judge responds, 'We have principles, we just do not apply them'.[18]
3.13 Lester and Pannick regard any principles emanating from the Court's approach to Article 41 as "little more than equitable assessments of the facts of the individual case." They urge that there is a "danger of spending time attempting to identify principles that do not exist."[19] Similar views have been expressed by Grosz, Beatson and Duffy, who state that "[c]ourts and tribunals are...likely to be largely frustrated in their search for those principles applied by the E Ct HR." They attribute this to the fact that the Court treats its powers under Article 41 as a "broad discretionary exercise, to be considered in the circumstances of each case."[20]
3.14 There is evidence that this weakness of the Strasbourg jurisprudence is recognised within the Court itself. Indeed, this is apparent from the vigour of the language in some recent dissenting judgments,[21] and the more detailed treatment of the issue of damages in some recent decisions.[22]
(2) The pre-conditions imposed by Article 41
3.16 Article 41 sets down three pre-conditions to the recovery of an award of damages:
(1) that the Court has found a violation;
(2) that the domestic law of the respondent State allows only "partial reparation"; and
(3) that the award is "necessary" to afford just satisfaction.
3.17 The first pre-condition is straightforward.[23] The second is of no more than historical significance for the Strasbourg Court.[24] In some of the early cases, there were suggestions that, even after a finding of violation, these words imposed a limit on the Strasbourg Court's jurisdiction to consider just satisfaction until the extent of reparation under the domestic law had been fully explored.[25] In practice, however, the "partial reparation" test is easily satisfied, and the Court has reserved for itself jurisdiction to consider the question of just satisfaction in virtually all cases where a violation is found.[26] Nor has the rule on the exhaustion of domestic remedies[27] been a material obstacle to this aspect of the Strasbourg Court's jurisdiction.[28] Having found a violation, the Strasbourg Court has been willing to grant a remedy without requiring the applicant to return to the domestic system.[29]
(3) General aim of restitutio in integrum
3.19 When the Strasbourg Court awards damages as just satisfaction under Article 41, the award aims to compensate the victim for the losses suffered as a result of the breach. Damages awarded by the Court seek to return the applicant to the position that he or she would have been in had there not been a breach of Convention rights; in other words, restitutio in integrum.[30]
...when proceedings are continued beyond the 'reasonable time' laid down in Article 6(1), the intrinsic nature of the wrong prevents complete reparation (restitutio in integrum). This being so, the only claim the applicant can make is for just satisfaction.[31]
3.21 The Court awarded 30,000 German marks (£6,490) damages as just satisfaction for non-pecuniary loss.[32] Similarly, in Smith and Grady v United Kingdom[33] (concerning homosexuals banned from military service) the Strasbourg Court noted that it was not possible to make a precise calculation of the amount necessary to make complete reparation for the applicants' loss of future earnings because of "the inherently uncertain character of the damage flowing from the violations". Again, however, substantial awards (£19,000 to each applicant) were made for non-pecuniary loss.
(4) The heads of damages recoverable
(a) Introduction
3.22 The Strasbourg Court awards damages as just satisfaction under three heads: pecuniary loss, non-pecuniary loss, and costs and expenses. In practice, the Court does not always separate its awards into these respective heads of damage, and it has often awarded global sums which combine all of the applicant's losses into a single figure.[34]
(b) Pecuniary loss
3.23 Damages under Article 41 have been awarded by the Strasbourg Court for a variety of pecuniary losses. For instance, awards have been made to compensate for loss of earnings,[35] loss of pension rights,[36] medical expenses,[37] unlawfully expropriated property[38] and to reimburse fines paid.[39]
3.24 The Strasbourg Court's assessment of pecuniary losses is often imprecise. For example, in Sporrong and Lönnroth v Sweden,[40] the Court found violations of Article 6(1) and of Article 1 of Protocol No 1. In the hearing on Article 50, the applicants put forward one method of assessing their loss; the government proposed an alternative method. The Court rejected both methods of assessment, and under the label of "loss of opportunities",[41] made its own "equitable assessment", explained as follows:
The assessment of the damage suffered presents particular difficulties on this occasion and is thus very problematical. The difficulties turn in part on the technical nature of real-estate matters, the complexity of the calculations made by the experts acting for the applicants and for the Government and the intervening changes in the claims put forward by the injured parties; they arise above all from the virtual impossibility of quantifying, even approximately, the loss of opportunities.
In this connection, neither of the methods suggested by those appearing before the Court seems capable of providing a satisfactory answer....The Court thus finds the methods proposed to be inadequate, but it does not consider that it has to establish another. This is because the circumstances of the case prompt the Court to confine itself to, and make an overall assessment of, the factors which it has found to be relevant...[42]
3.25 These problems arise largely because the Court is not geared to determining issues of valuation or hearing expert evidence.[43] Where the Court is presented with clear evidence of substantial pecuniary loss, it may award the full amount claimed.[44] If it does not accept the full figures presented, it may still make substantial awards on an equitable basis.[45]
(c) Non-pecuniary loss
3.26 The Strasbourg Court has made awards for non-pecuniary loss in respect of a wide range of intangible injuries. Non-pecuniary awards have included compensation for pain, suffering and psychological harm,[46] distress,[47] frustration,[48] inconvenience,[49] humiliation,[50] anxiety[51] and loss of reputation.[52] There appears to be no conceptual limit on the categories of loss which may be taken into account, and the Strasbourg Court is often prepared to assume such loss, without direct proof, as illustrated by the following comment:
By reason of its very nature, non-pecuniary damage of the kind alleged cannot always be the object of concrete proof. However, it is reasonable to assume that persons who, like the applicants, find themselves with problems relating to the continuation or inception of their married life may suffer distress and anxiety.[53]
3.27 Another form of intangible injuries which has been recognised by the Strasbourg Court is 'loss of relationship', that is the loss of love, companionship and support which occurs when a relationship between, for example, parent and child, is disrupted in consequence of a violation of Article 6 or 8.[54]
Non-pecuniary damage suffered by such companies may include heads of claim that are to a greater or lesser extent 'objective' or 'subjective'. Among these, account should be taken of the company's reputation, uncertainty in decision-planning, disruption in the management of the company (for which there is no precise method of calculating the consequences) and lastly, albeit to a lesser degree, the anxiety and inconvenience caused to the members of the management team.[55]
(d) Costs and expenses
3.29 This head covers not only the costs of proceedings before the Commission and the Strasbourg Court, but also expenses incurred in domestic proceedings in order to prevent the violation or obtain redress.[56] The rules applied are straightforward. Costs and expenses will only be awarded where they were incurred to prevent or obtain redress, through the domestic system or in Strasbourg, for a violation of the Convention; and they must have been actually and necessarily incurred, and be reasonable in amount.[57]
3.30 Although the costs and expenses are treated as an element of just satisfaction in the Strasbourg Court, we have not dealt with them in detail in this report. The Strasbourg "principles", to which the HRA section 8(4) requires the courts to have regard, are those relating to "damages", which under domestic law are distinguished from costs and expenses of litigation. We would expect the issue of costs to be dealt with by the domestic courts without regard to section 8, in accordance with the normal rules.[58] In any event, the rules of the Strasbourg Court relating to costs and expenses present little difficulty in practice, and are not dissimilar to United Kingdom practice.
3. EXERCISE OF DISCRETION UNDER ARTICLE 41
(1) Other measures in response to a violation
3.31 The only remedies available in the Strasbourg Court are declaratory judgments and awards of damages. It is not empowered to grant other forms of relief.[59] It does not even possess the ability to supervise its own judgments, as this responsibility rests with the Committee of Ministers.[60] In several cases, applicants have requested that the Court order a retrial, quash a conviction or annul a domestic judgment.[61] Applicants have also tried to secure reform of domestic law though claims under Article 41.[62] All of these requests have been rejected because the Court lacks the power to grant such remedies.[63]
3.32 However, just satisfaction may be provided by measures taken by the respondent State. The Court has taken the position that in principle the primary duty to remedy the breach rests on the respondent State.[64] A passage from the Court's judgment in Papamichalopoulos and Others v Greece[65] explains the relationship between the national obligation and Article 50:
It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach....If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.[66]
3.33 Measures taken by the State will form part of the Court's assessment of what constitutes just satisfaction. Where, for example, the Strasbourg Court has found that there has been a violation of Article 6 in the original proceedings, the Court may consider that the grant to the applicant of a retrial which complies with the requirements of the Convention amounts to sufficient just satisfaction (at least if the same conclusion is reached on the retrial).[67]
3.34 Similarly, the deduction of a period of detention from the ultimate sentence, or the grant of a pardon, may remove the need for any further award. As the Strasbourg Court said in Neumeister v Austria (No 2):[68]
While remission of sentence, like the reckoning of detention as part of a sentence, does not constitute real restitutio in integrum, it comes as close to it as is possible in the nature of things.
In that case there had been a violation of Article 5(3), on account of the applicant's detention on remand which extended beyond a reasonable time. He was eventually convicted, and the time spent in detention was deducted from his sentence. Following the principal judgment of the Court, the Austrian Government granted him a pardon in respect of the remainder of his sentence. The Court made no monetary award.[69]
3.35 This case can be contrasted with the Court's decision in Ringeisen v Austria (No 2).[70] In this case there had been a violation of Article 5(3) in that the applicant's detention on remand had extended beyond a reasonable time. The Government argued that full reparation had already been afforded by the deduction of the time spent in detention from the sentence imposed. The Court disagreed:
The fact of deducting the time spent in detention on remand from the prison sentence imposed on a person must no doubt be taken into consideration in assessing the extent of the damage flowing from the excessive duration of that detention; but it does not in any way thus acquire the character of restitutio in integrum, for no freedom is given in place of the freedom unlawfully taken away.
The consequence of the Government's reasoning would be to deprive Article 5(3) of much of its effectiveness, at least in cases where the person detained on remand for more than a reasonable time is found guilty afterwards: in such cases it would suffice, in order to avoid the application of Article 50, that the time spent in detention on remand should be less than the term of the prison sentence pronounced later and should be deducted from it.[71]
The Court accepted that the deduction of time from the applicant's sentence afforded him partial compensation. However, it also took into account the fact that the detention had made it more difficult for the applicant to conclude a composition for the termination of his bankruptcy. The Court awarded the applicant 20,000 German marks (£6,250) in damages.
3.36 The Court has not always regarded even the grant of a full pardon as sufficient redress for a violation of Article 6. For example, in Bönisch v Austria,[72] where the applicant was convicted in proceedings in breach of Article 6(1), the Court rejected the Government's argument that complete reparation had already been afforded through the granting of a pardon and other measures.[73] The Court considered that there had been a "loss of opportunities", which justified an award.[74]
3.37 Another form of measure by the State which may be regarded as amounting to just satisfaction is a change in the law. In Dudgeon v United Kingdom (Article 50),[75] the Court considered what 'just satisfaction' was appropriate for a violation of Article 8 on account of the laws in Northern Ireland which rendered homosexual acts by consenting adults a criminal offence. The Court acknowledged that the existing laws must have caused the applicant some distress but considered that the principal judgment provided sufficient just satisfaction. This view was taken in light of the Government's introduction of legislation which decriminalised homosexual acts in private by consenting male adults. The Court considered that the applicant:
should be regarded as having achieved his objective of securing a change in the law of Northern Ireland. This being so and having regard to the nature of the breach found, the Court considers that in relation to this head of claim the judgment of 22 October 1981 constitutes in itself adequate just satisfaction for the purposes of Article 50, without it being 'necessary' to afford financial compensation.[76]
(2) Just satisfaction by a finding of violation
3.38 The Court regularly holds that the finding of a violation is sufficient satisfaction without any further monetary award. The Strasbourg Court does not treat the mere fact of violation as in itself justifying some form of award.[77] On the contrary, the Court has regularly held that its own finding of a violation is sufficient just satisfaction. Indeed, these words have become an established formula.[78] The first case in which it was used appears to have been Golder v United Kingdom.[79] The applicant, a prisoner, was not permitted to contact a solicitor with a view to bringing libel proceedings against a prison officer. The Court found violations of Article 6(1) (access to court) and Article 8 (respect for correspondence), but made no award of damages, saying simply:
The Court is of opinion that in the circumstances of the case it is not necessary to afford to the applicant any just satisfaction other than that resulting from the finding of a violation of his rights.[80]
Since then, a large number of claims for non-pecuniary damage have failed for this reason.[81]
3.39 However, the practice has not been consistent. This has been recognised by the Court itself in a recent case under Article 5, Nikolova v Bulgaria.[82] The differences within the Court itself are apparent from the fact that the decision on this point was by a majority of eleven to six. All the dissenting judges considered that an award was necessary to provide just satisfaction for the victim's nonpecuniary damage.[83]
However, in more recent cases concerning violations of either or both paragraphs 3 and 4 of Article 5, the Court has declined to accept such claims... In some of these judgments the Court noted that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees of Article 5(3) and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any nonpecuniary damage suffered.
In the present case the Court sees no reason to depart from the above case-law. The Court cannot speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention...[84]
3.41 This passage seems to confirm that the Court will not make awards of damages to reflect the mere fact of a violation. Indeed, it suggests that, in the current practice of the Court, at least under Article 5, awards for non-pecuniary loss of any kind are likely to be the exception, not the rule. However, even in the short period since Nikolova the Court's practice not been wholly consistent, and it is possible that this issue will be subject to further consideration by the Court.[85]
During its second decade, from 1982 to the end of 1991, applicants claimed moral damages in 51 cases where the Court found that the judgment alone was 'just satisfaction' for the moral damage caused by the violation. The cases where moral damages were denied share certain general characteristics. First, the Court was often highly divided on the merits....Secondly, the large majority of the cases denying compensation - 40 out of the 51 - concern persons accused or convicted of criminal conduct....In nearly all the cases, the applicants were asserting procedural errors in actions against them, in violation of Article 5 or 6 of the Convention. The most common provision invoked was Article 6(1).
The relatively few non-prisoner cases in which moral damages were denied also concerned procedural errors in civil or administrative hearings. In fact, only four cases of the 51 cases denying moral damages involved challenges to substantive law.[86]
3.43 It should be noted also that the cases in which a declaration or other measure was held to amount to just satisfaction were ones in which the losses for which damages were sought were non-pecuniary. It seems that a judgment is not thought to provide sufficient satisfaction in respect of pecuniary loss.[87]
(3) Degree of loss
3.44 In a number of cases, the Court has held that, although the applicant has clearly suffered some non-pecuniary damage, the loss suffered is insufficient to render an award of damages necessary. An early example of the Court applying this reasoning can be found in Silver v United Kingdom (Article 50),[88] in which there had been a breach of Articles 8 and 13 on account of interference with correspondence by prison authorities. The Court rejected claims for nonpecuniary damage:
It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage.[89] (emphasis added)
(4) Seriousness of the violation
3.45 The seriousness of the violation may be an important factor justifying a generous award. For example, in Aksoy v Turkey,[90] the applicant had been detained by Turkish security forces on suspicion of terrorism; he was tortured in custody, but eventually released without charge. The Court found violations of Articles 3, 5 and 13, and allowed the claim for pecuniary and non-pecuniary loss in full:
In view of the extremely serious violations of the Convention suffered by Mr Zeki Aksoy and the anxiety and distress that these undoubtedly caused to his father, who continued with the application after his son's death,[91] the Court has decided to award the full amounts of compensation sought as regards pecuniary and nonpecuniary damage.[92]
3.46 Similar reasoning has been used by the Court in a number of cases involving grave violations carried out by the Turkish security forces.[93] Although there is an apparent analogy with aggravated damages in English law, the Strasbourg Court has not to date made an award expressly in those terms, and has on occasion rejected claims for aggravated damages.[94]
(5) Conduct of the respondent
3.47 Similarly, the Strasbourg Court has not in practice been willing to award extra sums by way of punitive damages.[95] Such claims have been specifically rejected in Akdivar v Turkey[96] Mentes v Turkey,[97] and Selçuk and Asker v Turkey.[98] Unfortunately, no reasons were given for rejecting these claims. However, such an award seems inconsistent with the general principle established by the Court that damages are intended to achieve restitutio in integrum. 3.48 On the other hand, the conduct of the respondent State or its agent affects the Court's discretion to award damages under Article 41 in two ways. First the Court has been more inclined to award damages where the violation itself was particularly offensive. Secondly, it has been suggested that awards in certain cases can best be explained on the basis that the Court is more willing to award damages where the respondent State has allowed the continuation of practices which have previously been held by the Court to be violations of the Convention.
(a) Offensive conduct of the State
3.49 A clear example of the former is Bozano v France.[99] The case involved a violation of Article 5(1), in the Court's words:
... a violation of the right to liberty and to security of person, a
disguised form of extradition designed to circumvent a negative
ruling by the appropriate French court, and an abuse of deportation
procedure for objects and purposes other than its normal ones.[100]
Although the period of unlawful detention was only twelve hours, the Court awarded 100,000 French francs (£9,880) for non-pecuniary loss resulting from the "unlawful and arbitrary deprivation of liberty".[101]
3.50 Another illustration is Halford v United Kingdom.[102] The applicant was a former Assistant Chief Constable, whose telephone had been tapped by the police in order to gain information about sex discrimination proceedings which the applicant was bringing against the police. The Strasbourg Court found violations of Articles 8 and 13. It described what occurred as "a serious infringement of her rights" having regard to the improper purpose of the police in carrying out the tapping, which was not subject to control by domestic law. It awarded £10,000 for non-pecuniary loss, even though it found "no evidence" that the stress which she had suffered was "directly attributable to the interception of her calls, rather than to her other conflicts with the Merseyside Police."[103]
3.51 Similarly, in Smith and Grady v United Kingdom (Article 41)[104] the Court's decision as to the appropriate level of just satisfaction to be given to the applicants was influenced by its view of the conduct of the respondent State. The applicants were members of the armed forces who were dismissed, despite exemplary service records, because of their sexual orientation. The Court noted that both the investigations and the subsequent discharges constituted "especially grave" interferences with the applicants' private lives. The applicants received awards of £19,000 each for non-pecuniary loss and substantial awards for pecuniary loss.
(b) Record of previous violations by the State
Most cases involving accused or convicted criminals in which moral damages were awarded were cases against Italy for the excessive length of proceedings....It appears, then, that damages are more likely to be awarded for routine and non-controversial substantive violations or procedural violations where there is a pattern of noncompliance.[105]
3.53 She finds a similar picture in relation to claims for excessive delay in civil proceedings in Italy. She notes that in a number of these cases, the Court awarded the full amount claimed by the applicants, when in many cases against other States, applicants recovered only part of their claim or were denied damages altogether.[106] However, it does not appear that the Court itself has in terms relied on repetitive conduct to justify higher awards.
(6) Conduct of the applicant
3.54 The conduct of the applicant may be relevant to causation. To the extent that he has contributed to the loss for which he is claiming, the responsibility of the State is diminished. Thus, for example, in Luberti v Italy,[107] having found a violation of Article 5(4) on account of the lack of speed in proceedings, the Court took account of the fact that the applicant had contributed to part of the delays. It held that the judgment provided just satisfaction for any non-pecuniary injury suffered:
... it cannot be forgotten that he made, sometimes simultaneously, a series of applications several of which were addressed to a judicial authority that lacked jurisdiction; he was thus responsible for the fact that proceedings in regard to his case were pending at the time before different tribunals, a situation that did not enhance the prospects of a rapid solution. Above all, a considerable amount of time was lost as a result of his absconding...and going into hiding....[108]
3.56 The conduct of the applicant which contributes directly to the breach in question will be an important factor in the Strasbourg Court's assessment of just satisfaction. The clearest example is McCann v United Kingdom (which concerned the killing of three IRA terrorists suspected of planning a bomb attack in Gibraltar).[109] The Court found a violation of Article 2, but rejected the claim for compensation, having regard to the fact that the victims were intending a terrorist attack. In such circumstances, the Court made it clear that an award of damages was inappropriate.
3.57 Even where the applicant's conduct is not directly related to the breach in question, it has been argued that the Strasbourg Court seems to take into account the applicant's character in deciding whether or not to award damages. For example, the Court seems more willing to deny damages and hold that the judgment provides just satisfaction where the applicant is a criminal or a suspected criminal. This is suggested in some cases on Article 6.[110] Dinah Shelton argues that the applicant's character is a factor in the Court's assessment of just satisfaction,[111] and that the likelihood of recovering damages is greater in
cases involving civil, rather than criminal proceedings.[112]
4. CAUSATION
(1) Need for clear causal link
3.58 The Strasbourg Court normally applies a strict causation test which bars the majority of claims for damages, in particular those for pecuniary loss. An straightforward example is Eckle v Germany (Article 50).[113] The applicants were convicted of fraud but the criminal proceedings were found to have extended beyond a reasonable length contrary to Article 6(1). The applicants claimed various pecuniary losses including loss of earnings resulting from the fact that their business collapsed whilst in prison and from being unable to engage in professional activities at an earlier date. The Court dismissed the claim for pecuniary damages because the losses were not caused by the violation:
The sole matter to be taken into consideration is thus the prejudice possibly entailed by the fact of the two proceedings in question having lasted beyond a 'reasonable time'. Yet, the alleged financial losses of Mr and Mrs Eckle result from the very existence and outcome of the prosecutions brought against them....[114]
(2) Speculative losses
(a) Strict causation
3.60 In De Cubber v Belgium (Just Satisfaction)[115] the applicant was convicted of forgery but complained that the tribunal was not impartial as one of the judges had previously performed the function of investigating judge. The Court found a violation of Article 6(1) but rejected the claim for pecuniary and nonpecuniary loss due to the absence of a clear causal link:
The Court cannot speculate as to what the outcome of the proceedings in question would have been had the violation of the Convention not occurred; there is nothing to show that the result would probably have been more favourable to the applicant....In short, no causal link between the violation of the Convention and the length of the detention has been established.[116]
3.61 Similarly, in Ruiz-Mateos v Spain,[117] the Strasbourg Court refused damages on the same basis. Proceedings instituted by the applicants to regain expropriated property were found by the Court to be in violation of Article 6(1) due to the unreasonable length and non-adversarial nature of the proceedings. Again, the Court rejected the claims for damages because it would not speculate as to the outcome of the national proceedings had the violations not occurred.[118]
(b) Loss of opportunities
3.62 In the other line of cases, the Court has sometimes been willing to speculate about hypothetical events. Under the broad label of "loss of opportunities", the Court has awarded substantial damages for losses which are speculative in nature. This is so even though the opportunity is described as "questionable" or "unlikely". In Martins Moreira v Portugal,[119] for example, the applicant complained that the proceedings in which he sought damages for personal injury were not completed within a reasonable time as required by Article 6(1). As a result of the delay, the defendant became insolvent. The court noted:
though it is not certain that the applicant would have recovered the entirety of his debt if the main proceedings had been terminated earlier, it is, in the Court's view, reasonable to conclude that, as a result of the long delay, ... he suffered a loss of opportunities which warrants an award of just satisfaction in respect of pecuniary damage.[120]
3.63 Bönisch v Austria[121] provides another example. The applicant was convicted in national proceedings which did not adhere to the principle of equality of arms in breach of the applicant's right to a fair trial under Article 6(1). The applicant claimed damages for pecuniary and non-pecuniary loss, including financial losses to his business. The Court addressed the pecuniary claim as follows: ...
the evidence available does not establish the existence of a causal link between the violation of the Convention and the deterioration in Mr Bönisch's financial situation. Admittedly, the Court cannot speculate as to what the outcome of the two sets of proceedings would have been had the breach not occurred. Nevertheless, the Court does not exclude the possibility that the applicant suffered, as a result of the potential effects of the violation found, a loss of opportunities of which account must be taken, even if the prospects of realising them were questionable.[122] (emphasis added)
A global award of 700,000 Austrian schillings (£27,420) was made for pecuniary and non-pecuniary loss.
3.64 This approach appears to be in direct conflict with the requirement for a clear causal link. Further cases on loss of opportunities do not help to resolve the conflict. In Weeks v United Kingdom,[123] the applicant argued that had he been given the opportunity to challenge his detention, he would have been released earlier and he therefore sought damages for loss of earnings and non-pecuniary damage. The Court made it clear that "no compensation [was] payable in respect of the harmful consequences attributable to the contested deprivation of liberty as such." Rather, damages could only be awarded in respect for the lack of an opportunity to challenge the detention in court (as required by Article 5(4)). The Court justified its award of damages as follows:
The Court finds it impossible to state that the applicant would definitely have been released had such proceedings been available to him. On the other hand, it cannot be entirely excluded that he might have been released earlier and, in view of his age, might have obtained some practical benefit. Consequently, Mr Weeks may be said to have suffered a loss of opportunities by reason of the absence of such proceedings, even if in the light of the recurrence of his behavioural problems the prospect of his realising them fully was questionable. The claim for pecuniary loss cannot therefore be completely discounted.[124] (emphasis added)
3.65 The same reasoning has frequently been employed in cases involving children taken into public care. For example, in H v United Kingdom (Just Satisfaction),[125] proceedings regarding access to the applicant's child who was in public care and subsequently adopted were found to have extended beyond a reasonable time in breach of Articles 6(1) and 8. The applicant claimed damages for the loss of relationship with her daughter as well as other non-pecuniary damages. The Court awarded £12,000 on an equitable basis, explained as follows:
As regards the applicant's loss of her relationship with her daughter and the deprivation of the latter's love, companionship and support, which she attributed to the breaches of the Convention, it cannot be affirmed with certainty that these matters would not have occurred if the relevant proceedings had been terminated more expeditiously.Indeed, it is noteworthy in this respect, as the Government pointed out, that in his report the Local Ombudsman expressed the opinion that it was 'very unlikely that the decision would have been different even if the [local authority] had acted more quickly.'
On the other hand, the Court does not feel able to conclude that, as the Government submitted, a speedier conclusion of the proceedings in question could not have genuinely benefited the applicant in practical terms....In these circumstances, it cannot, in the Court's opinion, be excluded that a prompter conclusion of the proceedings might have resulted in a different outcome. To this extent, the applicant may therefore be said to have suffered some loss of real opportunities, warranting monetary compensation.(emphasis added)[126]
(c) Attempts to reconcile the two approaches
3.66 The Court has not responded to attempts to bridge the gap. Recently, in Perks v United Kingdom,[127] (a claim for violations of Articles 5 and 6) the applicants discussed the basis upon which such losses should be assessed, by reference to the Court's reasoning in the loss of opportunities cases.[128] A passage from the Court's judgment sets out the applicants' argument:
While accepting that no just satisfaction is to be awarded where there is no causal link between the violation of Article 6 and the decisions of the national courts, the applicants contended that compensation is necessary where these decisions were shown to have been wrong and have resulted in an unjust deprivation of liberty. In the applicants' view they should not be expected to prove with certainty that the injustice would not have occurred but for the violation of Article 6. This would be asking the impossible. What matters, however, is that it is impossible to say that, if the applicant had benefited from legal representation, that would have made no difference.
The applicants considered, therefore, that it was necessary to strike a balance. While they did not ask the Court to assess compensation on the basis of the full recovery of loss, the applicants maintained that they should not be denied just satisfaction altogether.
3.67 However, the Court declined the chance to clarify its position on speculative losses. Without addressing the arguments, the Court simply stated that it could not speculate as to the outcome of the domestic proceedings and rejected the claim for damages.[129]
3.68 There are numerous cases falling on each side of the line. The position is further complicated by the fact that sometimes the court is prepared to make its own assessment of what the outcome of proceedings would have been. In Pressos Compania Naviera SA v Belgium,[130] the applicant had been deprived of a claim against the Belgian government in violation of Article 1 of Protocol No 1. The Belgian government's argument that the applicant should receive only damages for loss of opportunity was rejected and the court made its own equitable assessment of the apportionment and awarded 50 per cent of the sum claimed against the government.
3.69 It is impossible to reconcile these decisions.[131] The approach taken certainly does not seem to be determined by the right in question nor the type of speculation required to make an award. One can only guess that in some cases the Court feels sympathy towards certain applicants based on the particular circumstances and will go out of its way to award damages despite the usual requirement of a clear causal link.
5. INTEREST
(1) Interest as a pecuniary loss
the adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value, such as the fact that ten years have elapsed....[132]
3.71 In a number of cases the Strasbourg Court has awarded pecuniary damages which include interest. The Court appears to take account of the rates of interest which would be awarded by a domestic court.[133] In Darby v Sweden,[134] the applicant was awarded the tax 'unduly paid' together with interest "assessed in the light of the interest rates in Sweden at the time." In Pine Valley Developments v Ireland,[135] the applicants were awarded a global sum which included interest. The Strasbourg Court considered
that it should have regard to the rates applicable to Irish Court judgments; the commercial rates cited by the applicants appear to be more appropriate to a claim based on lost development profits.[136]
3.72 In Stran Greek Refineries and Stratis Andreadis v Greece,[137] the applicants were awarded damages calculated by reference to the arbitration award which they had been prevented from enforcing because of a law enacted by the State for that purpose. They claimed interest at six per cent from the date on which the original action was commenced against the State. The Strasbourg Court noted that the arbitration award, though recognising that the applicants had a claim (inter alia) for interest at six per cent, had not referred to interest in the operative part of the award. Nevertheless the Strasbourg Court awarded them interest at that rate, but from the date on which the award was made.[138]
3.73 It is sometimes less clear how the Strasbourg Court arrives at the amount of interest awarded. In Schuler-Zgraggen v Switzerland,[139] the Strasbourg Court found a violation of Article 14 taken with Article 6(1) on account of an unjustifiable difference in treatment of a state invalidity pension. The Court reserved judgment in respect of the applicant's claim for pecuniary damages. Following the principal judgment, a rehearing took place at the national level and the applicant was granted a full invalidity pension with retrospective effect. The applicant went back to Strasbourg and claimed interest on the full invalidity pension which had been paid eight years late. The Government objected to the claim arguing that full reparation had already been made. The Court held that an award of interest was justified and accordingly awarded 25,000 Swiss francs (£13,960) in damages, amounting to approximately 60 per cent of the original claim. Though noting that it did not agree with
the imprecise method of calculation proposed by [the applicant] and in particular with the rate of five per cent[140]
the Court did not explain the calculation of the amount awarded.
3.74 It seems that awards of interest have only been made in relation to pecuniary claims. The Court is unlikely to award interest on non-pecuniary loss. In Smith and Grady v United Kingdom[141] the Strasbourg Court rejected a claim by the applicants for interest on non-pecuniary loss, noting that
It does not consider an award of interest on this sum to be appropriate given the nature of the loss to which it relates.[142]
(2) Default interest
3.75 More recently, the Strasbourg Court has begun to award default interest under Article 41.[143] Such interest is payable if the damages awarded by the Strasbourg Court under Article 41 are not paid to the applicant by the respondent State within three months of the date of judgment. In awarding default interest, the Strasbourg Court usually adopts the standard interest rate applicable in the relevant country.
6. CONCLUSION
It ... seems that the most significant factors in determining whether or not damages will be awarded are the character of the applicant, the unanimity of the Court, and the procedural or substantive nature of the right violated.[144]
3.78 The only principle which is clearly stated in the Strasbourg case-law is that of restitutio in integrum. The aim of an award should be, so far as possible, to put an end to the breach and to make reparation for its consequences in such a way as to restore the situation existing before the breach. However, in applying that principle, the Court will take account of the parties' conduct "on an equitable basis", a phrase which "it has never attempted to define, or reduce to a set of principles."[145]
Note 1 The wording of Article 41, although slightly different from that of former Article 50, is treated in practice as bearing the same meaning. In this discussion we shall refer only to Article 41, and shall assume that the reference (in HRA s 8(4)) to Art 41 is to be read as including a reference to Article 50: see S Grosz, J Beatson and P Duffy, Human Rights: The 1998 Act and The European Convention (2000) p 143 note 74). [Back] Note 2 Paras 3.29 - 3.30 below. [Back] Note 3 Decisions of the Court are normally followed in the interests of “legal certainty” and “orderly development”, but may be departed from for good reason: see Feldman, “Precedent and the European Court of Human Rights”, Bail and the Human Rights Act The comparative lack of structure is most evident in relation to the assessment of 1998 (2000) Law Commission Consultation Paper No 157, Appendix C para C.11. Under the rules in force before Protocol 11 came into effect, a Chamber was obliged to relinquish jurisdiction in favour of the Grand Chamber in the event of a possible departure from previous case law (Rule 51 § 1 of the Rules of the Court A of the former Court). Under the new system a Chamber is merely empowered to relinquish jurisdiction in that situation (Article 30 as amended by Protocol No 11). [Back] Note 4 See, for example, the discussion of speculative losses: paras 3.59 - 3.69 below. [Back] Note 5 See John v MGN Ltd [1997] QB 586; Thompson v Commissioner of Police of the Metropolis [1998] QB 498. [Back] Note 6 Heil v Rankin [2000] 2 WLR 1173, where the existing case-law and the role and status of the JSB Guidelines for the Assessment of General Damages in Personal Injury cases is discussed (at p 1186). The case is referred to in more detail at paras 4.7 - 4.9 and 4.66 - 4.67 below. It followed the Law Commission’s report: Damages for Personal Injury: Non- Pecuniary Loss (1999) Law Com No 257, in which the common law approach to this subject is reviewed. The history and status of the JSB guidelines are explained at para 1.4 n 3 of that report. [Back] Note 7 See Markesinis, The German Law of Obligations, Vol II The Law of Torts: A Comparative Introduction (3rd ed 1997) pp 95-108 and 907-931; J M J Chorus, P H M Gerver and E H Hondius, Introduction to Dutch Law (3rd ed 1999) Chapter 8; A S Hartkamp and M M Tillema, Contract Law in the Netherlands (1995) §§ 200-217. [Back] Note 8 J Bell, S Boyron and S Whittaker, Principles of French Law (1998) p 392 and J J Herbots, Contract Law in Belgium (1995) § 415. [Back] Note 9 ‘Pouvoir souverain’. [Back] Note 10 See eg B Nicholas, The French Law of Contract (2nd ed 1992), p 225: “What principally strikes the English lawyer is that the French analysis is relatively undeveloped”. Belgian law takes a similar approach: see J J Herbots, Contract Law in Belgium (1995). [Back] Note 11 See generally J Bell, S Boyron and S Whittaker, Principles of French Law (1998) pp 349- 351 and 395-397. [Back] Note 12 D Feldman, “Precedent and the European Court of Human Rights” in Bail and the Human Rights Act 1998, Law Commission Consultation Paper No 157, para C.6. [Back] Note 13 Karen Reid, A Practitioner’s Guide to the European Convention of Human Rights (1998) p 398. Since the award of just satisfaction is not seen as the main business of the Strasbourg Court, the judges may be reluctant to embark on the time-consuming business of assessing compensation on a detailed basis. [Back] Note 14 See A Mowbray “The composition and operation of the new European Court of Human Rights” [1999] PL 219. Following the 1998 reorganisation, the Strasbourg Court consisted of 41 judges, one from each of the member states. Individual cases are normally heard by a Chamber of 7 judges, but important cases may be referred to a Grand Chamber of 17 judges. [Back] Note 15 Even where the Strasbourg Court has been given specific assistance on the level of damages it may not be evident from the judgment. For example, in Perks v United Kingdom Application nos 25277/94 et al, 12 October 1999, 30 EHRR 33 (see paras 6.140 and A.16 - A.22 below), the Court made an award of £5,500 for unlawful detention for 6 days (in breach of Art 6). No reason for this figure is given in the judgment. It is of interest, however, that the applicant’s counsel had submitted a graph, showing amounts for detention by reference to numbers of days, based on guidance in Thompson v Commissioner of Police of the Metropolis [1998] QB 498 and Lunt v Liverpool City Justices (CA unreported) 5 March 1991. On the graph £5,500 was shown as the amount for 6 days detention (information supplied by Ben Emmerson QC). [Back] Note 16 Robert Carnwath, “ECHR Remedies from a Common Law Perspective” (2000) 49 ICLQ 517. [Back] Note 17 Ibid, p 2. See for example Sporrong and Lönnroth v Sweden A 52 (1982), 5 EHRR 35, (1984) (merits); A 88 (1984), 7 EHRR 256 (just satisfaction) noted below at paras 3.24 and 6.231 - 6.232. This was particularly true under the former system, where the Commission, which had the principal responsibility of gathering evidence, was separate from the Court: see G Dannemann, Schadensersatz bei Verletzung der Europäischen Menschenrechtskonvention (1993), p 455. In theory, the new structure gives the Court more direct powers in this respect: see Mowbray, op cit p 228. [Back] Note 18 D Shelton, Remedies in International Human Rights Law (1999) p 1. [Back] Note 19 Lord Lester of Herne Hill and D Pannick (eds), Human Rights Law and Practice (1999) para 2.8.4, note 3. [Back] Note 20 Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention (2000) p 144, para 6-20. Dannemann attributes the lack of principle to the fact that assessment of damages carries a low priority in Strasbourg, and the lack of exchange of ideas between Strasbourg and the national courts. See “Haftung für die Verletzung von Verfahrensgarantien nach Article 41 EMRK” in Rabels Zeitschrift für ausländisches und internationales Privatrecht, December 1999 pp 452 - 470 at p 463. [Back] Note 21 See, for example, the dissenting judgment of Judge Bonello in Nikolova v Bulgaria Application no 31195/96, 25 March 1999 (quoted below at para 3.39 n 83). [Back] Note 22 For example, Smith and Grady v United Kingdom Application nos 33985/96 and 33986/96, 25 July 2000, discussed at paras 6.179 - 6.181 below. [Back] Note 23 But see Caballero v United Kingdom Application no 32819/96, 8 February 2000 (discussed in para 6.58 below) for the application of Article 41 where liability is conceded, so that there is no actual “finding” of a violation. [Back] Note 24 Though it helps to emphasise that the domestic courts should themselves be seeking to make ‘full reparation’ for the violation found. [Back] Note 25 See for example the argument of the Belgian government in De Wilde, Ooms and Vesyp v Belgium (No 2) A 14 (1972), 1 EHRR 438 (noted in para 6.67 below), para 20. [Back] Note 26 This extends even to cases under Article 5, which contains a separate compensation provision (Art 5(5): see Part VI paras 6.78 - 6.80 below. The argument often used by the Strasbourg Court is that the kind of harm suffered by a victim of a human rights violation is by its nature irreparable. See for example König v Germany A 36 (1980), 2 EHRR 469 (just satisfaction). [Back] Note 27 Article 35 of the Convention provides that the Court “may only deal with the matter after all domestic remedies have been exhausted...”. It also requires that applications are made within a period of six months from the date on which the final decision was taken. [Back] Note 28 A claim for just satisfaction is viewed, not as an independent procedure, but as a part of an entire claim, of which the question of liability forms the first part: see P van Dijk and GJH van Hoof, Theory and Practice of the European Convention of Human Rights (3rd ed 1998), p 241. [Back] Note 29 See De Wilde, Ooms and Versyp v Belgium (No 2) A 14 (1972), 1 EHRR 438, para 16, where the court noted that obliging the applicant to return to the domestic courts would mean that “...the total length of the procedure... would scarcely be in keeping with the idea of the effective protection of Human Rights. Such a requirement would lead to a situation incompatible with the aim and object of the Convention...”. Formerly, the Strasbourg Court did sometimes defer a decision on just satisfaction to enable the domestic court to take remedial measures: see para 3.32 n 64 below. [Back] Note 30 “...restitutio in integrum or complete reparation for damage derived from their detention”: Barberà, Messegué and Jabardo v Spain A 285-C (1994) (just satisfaction), para 16, following Ringeisen v Austria A 15 (1972), 1 EHRR 504 (just satisfaction), para 21. [Back] Note 31 A 36 (1980), 2 EHRR 469 (just satisfaction), para 15. See further para 6.116 below. [Back] Note 32 In De Wilde, Ooms and Versyp v Belgium A 14 (1972), 1 EHRR 438, para 20, the Court acknowledged that no “conceivable system of law” could wipe out entirely the consequences of a breach which by its nature rendered literal restitutio impossible. See further para 6.67. [Back] Note 33 Application no 33985/96 and 33986/96, 25 July 2000. See paras 6.179 - 6.181 below. [Back] Note 34 See Bönisch v Austria A 92 (1985), 9 EHRR 191 (merits); A 103 (1995), 13 EHRR 409
(just satisfaction)(noted in para 6.97 below); Tsirlis and Kouloumpas v Greece 1997-III p
909, 25 EHRR 198 (noted in para 6.30 below); Tomasi v France A 241-A (1992), 15 EHRR 1 (para 6.61 below). [Back] Note 35 Young, James and Webster v United Kingdom A 55 (1982), 5 EHRR 201 (just satisfaction)
(see 6.206 below); Smith and Grady v United Kingdom Application nos 33985/96 and
33986/96, 25 July 2000 (just satisfaction) (see paras 6.179 - 6.181 below). [Back] Note 36 Young, James and Webster v United Kingdom A 55 (1982), 5 EHRR 201 (just satisfaction);
Smith and Grady v United Kingdom Application nos 33985/96 and 33986/96, 25 July
2000 (just satisfaction). [Back] Note 37 Aksoy v Turkey 1996-VI p 2260, 23 EHRR 553 (see para 6.22 below); Ilhan v Turkey
Application no 22277/93, 27 June 2000 (see para 6.23 below). [Back] Note 38 Papamichalopoulos v Greece A 260-B (1993), 16 EHRR 440 (merits); A 330-B (1995), 21 EHRR 439 (article 50) (see paras 6.225 - 6.226 below). [Back] Note 39 See, for example, Baskaya and Okçuoglu v Turkey Application nos 23536/94 and 24408/94,
8 July 1999 (see para 6.198 below). [Back] Note 40 A 52 (1982), 5 EHRR 35, (1984) (merits); A 88 (1984), 7 EHRR 256 (just satisfaction).
See paras 6.231 - 6.232 below. [Back] Note 41 See the discussion of “loss of opportunities” as a head of claim: paras 3.62 - 3.65 below. [Back] Note 42 A 85 (1984), 7 EHRR 256, paras 27-31. [Back] Note 43 See para 3.11 above. The same problems should not arise in courts in England and Wales: see para 4.61 below. [Back] Note 44 See Ilhan v Turkey Application no 22277/93, 27 June 2000 (see para 6.23 below), Salman v Turkey Application no 21986/93, 27 June 2000 (see para 6.11 below). [Back] Note 45 See Smith and Grady v United Kingdom Application nos 33985/96 and 33986/96, 25 July 2000 (see paras 6.179 - 6.181 below). [Back] Note 46 Aydin v Turkey 1997-VI p 1866, 25 EHRR 251 (see para 6.20 below). [Back] Note 47 H v France A 162 (1989), 12 EHRR 74 (see para 6.118 below). [Back] Note 48 Van der Leer v Netherlands A 170 (1990), 12 EHRR 567 (see para 6.43 below). [Back] Note 49 Olsson v Sweden (No 2) A 250 (1992), 17 EHRR 134 (see para 6.162 below). [Back] Note 50 Young, James and Webster v United Kingdom A 44 (1981) 4 EHRR 38 (merits); A 55 (1982), 5 EHRR 201 (just satisfaction) (see para 6.206 below). [Back] Note 51 See Lopez Ostra v Spain A 303-C, 20 EHRR 277 (see para 6.183 below). [Back] Note 52 See Sakik v Turkey 1997-VII p 2609, 26 EHRR 662 (see para 6.51 below). [Back] Note 53 Abdulaziz, Cabales and Balkandali v United Kingdom A 94 (1985), 7 EHRR 471, para 96 (see para 6.218 below). On the facts of that case, the Strasbourg Court felt that its finding of a violation amounted to sufficient just satisfaction for the loss suffered by the applicants. [Back] Note 54 See for example H v United Kingdom A 136-B (1988), 13 EHRR 449 (see para 3.65 below), W v United Kingdom A 121 (1987), 10 EHRR 29 (merits); A 136-C (1988), 13 EHRR 453 (just satisfaction) discussed at paras 6.90 - 6.91 below. [Back] Note 55 Application no 35382/97, 6 April 2000, para 35. See para 6.123 below. [Back] Note 56 See K Reid, A Practitioner’s Guide to the European Convention on Human Rights (1998), p 420. [Back] Note 57 See for example Le Compte, van Leuven and de Meyere v Belgium A 54 (1982), 5 EHRR 183. The Court has been responsive to objections to the level of fees, or the number of representatives: see for example Young, James and Webster v United Kingdom A 55 (1982), 5 EHRR 201 (just satisfaction); K Reid op cit p 421. [Back] Note 58 “... our domestic rules as to costs will probably cover any costs or expenses incurred by the complainant”: Lord Woolf’s 8th Principle: see part IV para 4.31 below. It must be noted, however, that courts in England and Wales dealing with an HRA claim may be concerned not only with costs in the instant proceedings, but also with costs thrown away in earlier proceedings found to be in violation. [Back] Note 59 See Ireland v United Kingdom A 25 (1978), 2 EHRR 25, where the Court refused the request of the Irish Government to order the British Government to prosecute or discipline those members of the security forces who were found to have used interrogation techniques conflicting with Article 3. It was originally proposed that the powers of the Strasbourg Court should include the power to annul, suspend or modify a contested decision, and to request the respondent State to institute criminal, administrative or civil proceedings against those found responsible for violations. However, these proposals were rejected by the Committee of Experts in favour of the general principles of international responsibility. See M E Mas “Right to Compensation under Article 50” in R St J Macdonald, F Matscher and H Petzold (eds), The European System for the Protection of Human Rights (1993), p 777. [Back] Note 60 See Article 46(2) of the Convention. [Back] Note 61 See for example, Albert and Le Compte v Belgium A 68 (1983), 13 EHRR 415 (just satisfaction) (a request for the removal of sanctions); Pakelli v Germany A 64 (1983), 6 EHRR 1 (a request for the annulment of a domestic judgment); Belilos v Switzerland A 132 (1988), 10 EHRR 466 (a request for a direction to cancel a conviction and reimburse the fine); Hauschildt v Denmark A 154 (1989), 12 EHRR 266 (a request that a conviction be quashed - see para 6.96 below); Brozicek v Italy A 167 (1989), 12 EHRR 371 (a request that a conviction be declared void - see para 6.133 below); Saidi v France A 261-C (1993), 17 EHRR 251 (request for retrial); Pelladoah v Netherlands A 297-B (1994), 19 EHRR 81 (request that sentence not be executed and proceedings reopened); Oberschlick v Austria A 204 (1991), 19 EHRR 389 (request for rehabilitation and for setting aside of domestic judgment). [Back] Note 62 See for example, X v United Kingdom A 55 (1982), 5 EHRR 192; F v Switzerland A 128 (1987), 10 EHRR 411 (see para 6.212 below); Pauwels v Belgium A 135 (1988), 11 EHRR 238 (see para 6.46 below). [Back] Note 63 The Committee of Ministers has encouraged Contracting States to examine their national legal systems with a view to ensuring that there exist adequate possibilities of reexamining the case (including reopening of proceedings) in instances where the Strasbourg Court has found a violation of the Convention and, in particular:
(a) where the injured party continues to suffer because of the outcome of the domestic decision at issue,
(b) where the consequences cannot be rectified except by re-examination or reopening, and
(c) where the domestic decision was on the merits contrary to the Convention or procedurally severely flawed.
See Recommendation No R (2000) 2 of the Committee of Ministers, 19 January 2000. [Back] Note 64 It appears that in its early days the Strasbourg Court frequently deferred any hearing on damages to see what would be the response of the State to the finding that a violation had occurred (L-E Pettiti, E Dacaux and P-H Imbert (eds), La Convention Européenne des Droits de L’Homme (2nd ed 1995), p 824). Now the question of damages is more usually dealt with as part of the same decision as the question of a violation (though it may still be reserved, to allow, for example, for the possibility of an agreement between the parties. See Guillemin v France 1997-I p 149, 25 EHRR 435 (merits), 1998-VI p 2544 (just satisfaction). See para 6.234 below). [Back] Note 65 A 330-B (1995), 21 EHRR 439 (article 50), para 34. The case involved a violation of Article 1 of Protocol No 1, in that the Government had failed to compensate the applicants for property which they had unlawfully seized. [Back] Note 66 A 330-B (1995), 21 EHRR 439, para 34. See paras 6.225 - 6.226 below. The Court held that restitutio would be effected if the Government returned the land in question, but that if it failed to do so, damages should be awarded to compensate the applicants for their losses, both pecuniary and non-pecuniary, resulting from the breach established. Cf Dinah Shelton, Remedies in International Human Rights Law (1999) p 203, where she criticises the Court’s general failure to determine in individual cases what would constitute restitutio. This may make it difficult for the Committee of Ministers to determine whether or not the state has remedied a breach. [Back] Note 67 See for example Piersack v Belgium (Article 50) A 85 (1984), 7 EHRR 251 (noted at para 6.95 below). There had been a breach of Article 6, because of doubts as to the impartiality of the Court. Following adjournment of the just satisfaction proceedings pending the retrial, the same verdict and sentence were arrived at. See also Windisch v Austria A 186 (1990), 13 EHRR 281 (merits); A 255-D (1993) (just satisfaction) where a retrial give by the state in response to a violation of Article 6(3)(d) found by the Court was held to amount to just satisfaction. Compare Barberà, Messegué and Jabardo v Spain A 285-C (1994) where the retrial resulted in acquittal; the Court then made awards of between 4 million and 8 million pesetas (£19,410 and £38,810) to cover pecuniary and nonpecuniary loss (see para 6.101 below). [Back] Note 68 A 17 (1974), 1 EHRR 136. [Back] Note 69 It was influenced by his own statement, in his request for a pardon, that remission of the remainder of his sentence would be “the best possible form of reparation”, and an apparent offer to waive, in return, all his claims for compensation. The Court observed that this opinion “retains its value; it confirms the just character of the measure taken...”. [Back] Note 70 A 15 (1972), 1 EHRR 504. [Back] Note 71 A 15 (1972), 1 EHRR 504 para 21. [Back] Note 72 A 103 (1985), 13 EHRR 409. [Back] Note 73 In addition to the pardon, the Government expunged the sentences imposed on the applicant, removed his name from the criminal record and discontinued the enforcement procedure. [Back] Note 74 The Court awarded the applicant 700,000 schillings (£25,190). See para 6.97 and the discussion of the “loss of opportunities” cases, at paras 3.62 - 3.65. [Back] Note 75 A 59 (1983), 5 EHRR 573. [Back] Note 76 A 59 (1983), 5 EHRR 573, para 14. It may be noted that though Mr Dudgeon had been investigated, he had not been subjected to prosecution under the relevant laws; had he been, the court might well have come to a different conclusion. Cf Norris v Ireland A 142 (1988), 13 EHRR 186; ADT v United Kingdom Application no 35765/97, 31 July 2000. See paras 6.175 - 6.178 below. [Back] Note 77 A similar approach has been taken in South Africa. In the leading South African case of Fose v Minister of Safety and Security 1997 (3) SA 786, 826, Ackerman J argued against an award of “constitutional damages” where no actual damage had been caused by the violation of rights; in such a case a declaration combined with a costs order would be “a sufficiently appropriate remedy to vindicate the plaintiff’s right.” However, Halford v United Kingdom 1997-III p 1004, 24 EHRR 523, discussed at para 6.169 below, may indicate an alternative approach. [Back] Note 78 Shortened conveniently to “FOVJS” in Karen Reid’s comprehensive table of cases: Reid op cit p 403. Its use has been strongly criticised in dissenting judgments: see for example Judge Bonello, in Nikolova v Bulgaria Application no 31195/96, 25 March 1999 (quoted at para 3.39 n 83 below). See also Fox, Campbell and Hartley v United Kingdom A 202 (1991), 14 EHRR 108, 112, dissenting opinion of Judge Pinheiro Farinha and TW v Malta Application nos 25644/94 and 25642/94, 29 April 1999, 29 EHRR 185, 209, partly dissenting opinion of Judges Tulkens and Casadevall. [Back] Note 79 A 18 (1975), 1 EHRR 524. See para 6.155. [Back] Note 80 A 18 (1975), 1 EHRR 524 para 46. [Back] Note 81 Dinah Shelton, Remedies for International Human Rights Law (1999) p 204 - 208 provides figures on the number of cases in which the judgment was held to be sufficient just satisfaction. Between 1972 and 1981, the Court rejected damages because the judgment was adequate in three cases. Between 1982 and 1991, this practice was used to deny moral damages to applicants in 51 cases. And between 1992 and 1998, moral damages were denied on this ground in 79 cases. [Back] Note 82 Application no 31195/96, 25 March 1999. The applicant had been refused bail without proper consideration of the merits: see the discussion in Bail and the Human Rights Act 1998 (2000) Law Commission Consultation Paper No 157, paras 9.10 - 9.14. See paras 6.54 - 6.55 below. [Back] Note 83 Partly dissenting opinions of Judge Bonello (joined by Judge Maruste), Judge Fischbach (joined by Judges Kuris and Casadevall) and of Judge Greve. The latter called for at least a “token award”. Judge Bonello’s dissent was even more critical of the FOVJS formula: “I consider it wholly inadequate and unacceptable that a court of justice should ‘satisfy’ the victim of a breach of fundamental rights with a mere handout of legal idiom....The first time the Court appears to have resorted to this hapless formula was in the Golder case of 1975. Disregarding its own practice that full reasoning should be given for all decisions, the Court failed to suggest one single reason why the finding should also double up as a remedy. Since then, propelled by the irresistible force of inertia, that formula has resurfaced regularly...” [Back] Note 84 Nikolova v Bulgaria Application no 31195/96, 25 March 1999, para 76. [Back] Note 85 See further TW v Malta Application nos 25644/94 and 25642/94, 29 April 1999, 29 EHRR 185, discussed at para 6.49 below. In Caballero v United Kingdom Application no 32819/96, 8 February 2000 the Court referred to the reasoning of Nikolova but treated the facts as justifying an exception (see para 6.58 below). In the present year (2000) we have found four relevant cases under article 5; in two damages for non-pecuniary loss were denied (Jordan v United Kingdom Application no 30280/96 (see para 6.50 below), 14 March 2000; Cesky v Czech Republic Application no 33644/96, 6 June 2000 (see paras 6.62 - 6.63 below); in two they were granted (Curley v United Kingdom Application no 32340/96, 28 March 2000 (see para 6.73 below); Punzelt v Czech Republic Application no 31315/96, 25 April 2000 (see para 6.64 below). [Back] Note 86 Dinah Shelton, Remedies in International Human Rights Law (1999) p 205. [Back] Note 87 To date, there do not appear to be any cases where the Court has specifically rejected a claim for pecuniary damages on the basis that the judgment provided sufficient satisfaction in respect of that loss. However, such claims are more likely to fail on causation grounds: see para 3.58 below. [Back] Note 88 A 67 (1983), 6 EHRR 62. See paras 6.156 – 6.157 below. [Back] Note 89 A 67 (1983), 6 EHRR 62, para 10. See also Campbell and Fell v United Kingdom A 80 (1984), 7 EHRR 165; Schönenberger and Durmaz v Switzerland A 137 (1988), 11 EHRR 202. See further discussion of cases of interference with correspondence in breach of Article 8 in Part VI at paras 6.154 - 6.158 below. A similar view was taken in Koendjbiharie v Netherlands A 185-B (1990), 13 EHRR 820, a case involving a breach of Article 5(4), at para 34. It may be relevant that in all these cases where the non-pecuniary damage sustained was insufficient to justify an award of compensation the applicants were convicted criminals: see discussion of “Conduct of applicant” below at paras 3.54 - 3.57 below. [Back] Note 90 1996-VI p 2260, 23 EHRR 553. See para 6.22 below. [Back] Note 91 The applicant was killed after lodging the complaint with the Court, apparently after having received death threats to make him withdraw his application. [Back] Note 92 1996-VI p 2260, 23 EHRR 553, para 113. The Court awarded 4,283,450,000 Turkish lira (£24,325) for pecuniary and non-pecuniary damages. [Back] Note 93 See for example Aydin v Turkey 1997-VI p 1866, 25 EHRR 251 (see para 6.20 below); Assenov v Bulgaria 1998-VIII p 3264, 28 EHRR 652 (see para 6.25 below). In the latter case, the Court referred to “the gravity and number of violations” found (para 175); on “an equitable basis” it awarded damages for non-pecuniary loss of 6 million Bulgarian levs (£2,140). See also Kaya v Turkey 1998-I p 297, 28 EHRR 1 (see para 6.8 below); Mentes v Turkey 1998-IV p 1686, 26 EHRR CD, CD1. M Pellonpää has commented
Although compensation for non-pecuniary damage is not punitive in nature, it may in its practical effect come close to such ‘punitive or exemplary’ damages as are sometimes argued to constitute a specific, additional remedy for unlawful expropriation under general international law.
“Does the European Convention on Human Rights require ‘Prompt, Adequate and Effective’ compensation for deprivation of possessions”, in M Tupamäki Liber Amicorum Bengt Broms (1999), pp 377-394 at p 385. [Back] Note 94 See Selçuk and Asker v Turkey 1998-II p 891, 26 EHRR 477. See “aggravated damages” discussed in Part IV paras 4.69 - 4.70. [Back] Note 95 M Amos, “Damages for Breach of the Human Rights Act 1998” [1999] EHRLR 178, 192. Cf para 6.196 note 176 below, in relation to Halford v United Kingdom 1997-III p 1004, 24 EHRR 523, and Judge Matscher’s dissenting judgment in Gaygusuz v Austria 1996-IV p 1129, 23 EHRR 364, quoted at para 6.217 below. [Back] Note 96 1998-II p 711 (just satisfaction). See para 6.235 below. [Back] Note 97 1998-IV p 1686, 26 EHRR CD, CD1. [Back] Note 98 1998-II p 891, 26 EHRR 477. [Back] Note 99 A 111 (1986), 9 EHRR 297 (merits); A 124-F (1987), 13 EHRR 428 (just satisfaction) See paras 6.37 - 6.38 below. See also Allenet de Ribemont v France A 308 (1995), 20 EHRR 557, discussed at para 6.131 below, and the discussion in Part IV at paras 4.69 - 4.73 below. [Back] Note 100 A 124-F (1987), 13 EHRR 428, para 8. [Back] Note 101 See further discussion of Article 5(1) in Part VI at paras 6.29 - 6.42 below. [Back] Note 102 1997-III p 1004, 24 EHRR 523, discussed in Part VI at para 6.169. [Back] Note 103 1997-III p 1004, 24 EHRR 523, para 76. This award may be contrasted with telephone tapping cases where the finding has been regarded as sufficient just satisfaction. It may be relevant that most of these decisions involved applicants who were criminals or suspected criminals. See discussion at Part VI at paras 6.167 - 6.171 below. [Back] Note 104 Application nos 33985/96 and 33986/96, 25 July 2000. See paras 6.179 - 6.181 below. [Back] Note 105 Dinah Shelton, Remedies in International Human Rights Law (1999) p 219. [Back] Note 106 Dinah Shelton, Remedies in International Human Rights Law (1999) p 220. She comments: “It does seem clear that the Italian government thus far has chosen to pay damages rather than repair its legal system; perhaps larger awards are deemed necessary to exert pressure for change.” [Back] Note 107 A 75 (1984), 6 EHRR 440. [Back] Note 108 A 75 (1984), 6 EHRR 440, para 41. See also Johnson v United Kingdom 1997-VII p 2391, 27 EHRR 296 (discussed at Part VI para 6.42 below), in which the Court made an award, but in assessing the amount took account of the applicant’s “negative attitude” towards rehabilitation. [Back] Note 109 A 324 (1995), 21 EHRR 97 (see paras 6.5 - 6.6 below). See also Silver v United Kingdom A 61 (1983), 5 EHRR 347 (merits), A 67 (1983), 6 EHRR 62 (just satisfaction), discussed at paras 6.156 - 6.157 below. [Back] Note 110 See for example Eckle v Germany (Article 50) A 65 (1983), 13 EHRR 556 (discussed at paras 3.58 and 6.128 below), where the Strasbourg Court noted when considering whether to award the applicants damages for non-pecuniary loss “...it cannot be overlooked that [the applicants] were charged with serious acts of fraud committed to the detriment of, amongst others, persons lacking substantial financial resources and that the Trier Court imposed heavy prison sentences on them” (see para 24). See also Saunders v United Kingdom 1996-VI p 2044, 23 EHRR 313 (see para 6.112 below); Welch v United Kingdom A 307-A (1995), 20 EHRR 247 (merits); 1996-II p 386, 21 EHRR CD1 (just satisfaction) (see para 6.149 below). [Back] Note 111 See Dinah Shelton, Remedies in International Human Rights Law (1999) p 209:
The Court seems close to the view that those accused or convicted of crimes should receive no damages for procedural violations unless they can demonstrate actual innocence. The conduct of the government appears to be much less significant, although severe government misconduct sometimes can overcome the bias against prisoners.
Alistair Mowbray makes a similar point:
In practice the Court is very reluctant to provide financial compensation to convicted prisoners (many of whom have been imprisoned for serious crimes, such as drugs-smuggling, armed robbery, and incitement to murder) especially where the breach of the Convention is concerned with procedural guarantees.
A R Mowbray, “The European Court of Human Rights’ Approach to Just Satisfaction” [1997] PL 647, 652. But see K Starmer, European Human Rights Law (1999), at pp 62- 63, who notes that “The fact that the applicant has criminal convictions does not seem to be a determinative factor”. [Back] Note 112 Ibid p 219: “Those cases where applicants requested and were awarded moral damages involve civil proceedings approximately three times more frequently than criminal ones, although cases originating with detainees are filed more frequently.” [Back] Note 113 A 65 (1983), 13 EHRR 556. See also para 6.128 below. [Back] Note 114 A 65 (1983), 13 EHRR 556, para 20. [Back] Note 115 A 124 (1987), 13 EHRR 422. See para 6.98 below. [Back] Note 116 A 124 (1987), 13 EHRR 422, para 23. The Court did award a sum of 100,000 Belgian francs (£1,600) for non-pecuniary damages suffered, not as a result of the loss of liberty, but for the “legitimate misgivings” that the applicant had about the impartiality of the tribunal which convicted him. [Back] Note 117 A 262 (1993), 16 EHRR 505. See also Informationsverein Lentia v Austria A 276 (1993), 17 EHRR 93 noted at para 6.201 below. [Back] Note 118 A 262 (1993), 16 EHRR 505, para 70. [Back] Note 119 A 143 (1988), 13 EHRR 517. [Back] Note 120 A 143 (1988), 13 EHRR 517, para 65. [Back] Note 121 A 103 (1985), 13 EHRR 409. Referred to at paras 3.36 and 6.97. See also Delta v France
A 191-A (1990), 16 EHRR 574, at paras 6.105 and 6.144 below, and Lingens v Austria A 103 (1986), 8 EHRR 407, at paras 6.195 - 6.196 below. [Back] Note 122 A 103 (1985), 13 EHRR 409, para 11. [Back] Note 123 A 143-A (1988), 13 EHRR 435. For a discussion of the facts of the case, see paras 6.68 - 6.71 below. [Back] Note 124 A 143-A (1988), 13 EHRR 435, para 13. Just satisfaction of £8,000 was awarded for the loss of opportunities and non-pecuniary damage suffered by the applicant. The Court did take note of “special features of the case, notably the severity of the indeterminate life sentence in relation to the crime committed.” [Back] Note 125 A 136-B (1988), 13 EHRR 449. See also paras 4.83 - 4.84 below. The Strasbourg caselaw in relation to children being taken into care is also discussed at paras 6.90 - 6.91 (Article 6) and 6.159 - 6.162 (Article 8) below. [Back] Note 126 A 136-B (1988), 13 EHRR 449 at paras 12-13. [Back] Note 127 Application nos 25277/94 et al, 12 October 1999. This case is discussed in detail in Appendix A below at paras A.16 - A.22. [Back] Note 128 The applicants, who were on low income, were not legally represented and did not have the benefit of legal aid in proceedings which led to their imprisonment for not paying community charges. [Back] Note 129 All of the applicants except Mr Perks were denied damages on this basis. Mr Perks did successfully recover damages after the Government conceded that an exception should be made in his case. Due to his mental health problems, the Government accepted that it was unlikely that he would have been imprisoned had a legal representative been present to bring his particular circumstances to the attention of the court. [Back] Note 130 A 332 (1995), 21 EHRR 301 (merits); 1997-IV p 1292, 24 EHRR CD 16 (just satisfaction). See paras 6.229 - 6.230 below for the full facts. [Back] Note 131 G Dannemann notes that the Strasbourg Court awards damages for loss of opportunities in approximately one quarter of the cases, but “has given no reason why no similar award was made in the other three quarters of the cases”. See the discussion in Schadensersatz bei Verletzung der Europäischen Menschenrechtskonvention (1993), summarised at p 464. It has been suggested that the difference in treatment by the Strasbourg depends on whether the breach in question concerns the procedural or substantive aspects of Article 6, and that where the breach in question is substantive, the Court is more likely to admit that the victim may have sustained a loss of opportunities warranting an award of just satisfaction. See M E Mas “Right to Compensation under Article 50” in R St J Macdonald, F Matscher and H Petzold (eds), The European System for the Protection of Human Rights (1993), p 785. [Back] Note 132 Stran Greek Refineries and Stratis Andreadis v Greece (1994) Series A No 301-B, 19 EHRR 293, para 82. See also Guillemin v France 1997-I p 149, 25 EHRR 435 (merits), 1998-VI p 2544 (just satisfaction), discussed at paras 6.124 and 6.234 below. [Back] Note 133 Though this is not always the case. See Bergens Tidende v Norway Application no 26132/95, 2 May 2000, discussed in para 6.199 below. [Back] Note 134 A 87 (1990), 13 EHRR 774. [Back] Note 135 A 246-B (1993), 16 EHRR 379 (discussed at paras 6.219 - 6.221 below). [Back] Note 136 A 246-B (1993), 16 EHRR 379, para 14. The applicants’ claim was based on the difference in value of their land as they received it by comparison with the value it would have had with the relevant permissions. It was not a claim for lost development profits. [Back] Note 137 A 301-B (1994), 19 EHRR 293. [Back] Note 138 Some six years after the initial action was started. [Back] Note 139 A 305-A (1995), 21 EHRR 404. [Back] Note 140 A 305-A (1995), 21 EHRR 404, para 15. [Back] Note 141 Application nos 3985/96 and 33986/96, 25 July 2000, discussed at paras 6.179 - 6.181 below. [Back] Note 142 Application nos 3985/96 and 33986/96, 25 July 2000, para 13. [Back] Note 143 The practice of awarding default interest for delayed payment of just satisfaction was introduced by the Strasbourg Court in January 1996. Reference to this fact was made by the Court in its judgment in Hentrich v France (1997) 24 EHRR CD, CD19, para 15. [Back] Note 144 Dinah Shelton, Remedies in International Human Rights Law (1999) p 209. [Back] Note 145 S Grosz, J Beatson and P Duffy, Human Rights: The 1998 Act and The European
Convention (2000), p 145. [Back]
