Judgments of the European Court of Human Rights - Effects and Implementation

Anja Seibert-Fohr, Mark E. Villiger

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317110132
• Edition: 1
• Topic: Jura
• Subtopic: Völkerrecht

This volume deals with the domestic effects of judgments of the European Court of Human Rights as a challenge to the various levels of legal orders in Europe. The starting point is the divergent impact of the ECtHR's jurisdiction within the Convention States. The volume seeks new methods of orientation at the various legal levels, given the fact that the Strasbourg case law is increasingly important for most areas of society. Topical tendencies in the case law of the Court are highlighted and discussed against the background of the principle of subsidiarity. The book includes a detailed analysis of the scope, reach, consequences and implementation of the Court's judgments and of the issue of concomitant damages. At the same time the volume deals with the role of domestic jurisdictions in implementing the ECtHR's judgments. Distinguished Judges, legal academics and practitioners from various Council of Europe States are among the contributors to this volume, which succeeds in bringing divergent points of view into the discussion and in developing strategies for conflict resolution.

Can’t Get Just Satisfaction

Julia Laffranque

The literally awarding article, namely Article 41 of the European Convention on Human Rights (thereinafter: The Convention’)¹ constitutes an intriguing subject that fully deserves a stimulating title inspired by the hit of the Rolling Stones released in 1965.

According to Article 41 of the Convention, if the European Court of Human Rights (thereinafter ‘the Court’ or ‘Strasbourg Court’) finds that there has been a violation of the Convention and/or its protocols, and if the domestic law of the Contracting Party to the Convention concerned allows only partial reparation to be made, the Court shall – if necessary – afford just satisfaction to the injured party.

The topic of just satisfaction is much more sophisticated and the award of satisfaction is far more important and influential for the implementation of the Convention as well as for the case law, the credibility, acceptance and consequence of the judgments of the Court than could perhaps be seen at first.

To demonstrate this, ten aspects that are of pertinent relevance to just satisfaction will be analysed below. However it will only be possible to elaborate on very few and mostly more recent cases of the Court’s extensive practice on just satisfaction, as examples. Obviously they will not cover the whole range and variety of problems, but perhaps even these quite random illustrations will shed some light on a pattern or respectively a bit of an absence of it in the Court’s case law regarding the damages.

A main question remains: is the ‘just satisfaction’ (French: ‘satisfaction équitable’) always satisfactory and just? Wolfram Karl has pointed out that as an exception to general international law (where the rule of just satisfaction resides and has become a customary international law), a State under the Convention system may step back from fulfilling its obligation to provide restitution in kind, if national law does not allow for it and that in such a case ‘just satisfaction’ is owed, which has nothing or little to do with ‘satisfaction’ in the more restricted sense of a mere apology (i.e. as a symbolic act destined to restore the injured party’s honour as understood in international law); what is meant by this instead seems to be near the full range of remedies.²

A. Importance of Just Satisfaction

The issue of just satisfaction has significant features both for the parties of an actual litigation, for the concrete people, the victims of Convention violations, as well as for the development of human rights law in Europe in general.

One example of the importance of this theme is the fact that the question of just satisfaction has caused the panel of the Grand Chamber of the Court to accept a request to refer a case to the Grand Chamber only to decide upon Article 41 of the Convention dispute.³

However, the case of Guiso-Gallisay v. Italy, in which the main question submitted to the Grand Chamber was the pecuniary damage suffered by the applicants following the unlawful expropriation of their land, can be considered as an exception. In principle the award at issue constitutes an application of Article 41 of the Convention to the nature of the violation found and may be seen as a factual assessment. Moreover, in many cases the Chamber of the Court decides the amount of just satisfaction on an ‘equitable basis’ and such an assessment does not, by its very nature, lend itself to a review by the Grand Chamber.⁴

Correspondingly in the case of Guiso-Gallisay v. Italy the Grand Chamber was not called upon to review the assessment of the amount of the losses at stake (and indeed it came to the conclusion that it was appropriate to change the Court’s position, to avoid the application of the previous Papamichalopoulos⁵ case law to cases of constructive expropriation and to adopt a new approach); there was, rather a ‘serious question affecting the interpretation of [Article 41 of] the Convention’.

In Arvanitaki-Roboti and Others v. Greece⁶ and in Kakamoukas v. Greece⁷ the main, although not the only, question addressed by the Grand Chamber was the amount of the award to be made in cases of excessive length of proceedings. In both cases the Grand Chamber considered for the reasons set out by the Chamber that there had been a violation of Article 6

(1)1 of the Convention and then went on to assess the issue of Article 41 of the Convention.

Another example of the significance of just satisfaction issues is that deciding upon Article 41 of the Convention has also generated various dissenting opinions of judges.

Yet another example of how substantial the matter of just satisfaction is, is proved by the Court’s working procedure according to which a case that would require a departure from the established case law, even in the context of just satisfaction, should be forwarded from the Committee to the Chamber.

Awarding just satisfaction under Article 41 of the Convention bears logically a close relation to the violation of the relevant Article of the Convention found in the case at hand and also to Article 46 of the Convention which provides that the Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties and that the final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

Also the issue of the relations between the articles of the Convention (their possible hierarchy) and the importance of the rights that they protect is relevant when analysing just satisfaction under Article 41 of the Convention.

Furthermore, application of Article 41 and awarding of damages, costs and expenses involves many technical aspects and issues that would merit a separate elaboration on its own, such as awards under Article 1 of Protocol No. 1 to the Convention.

A further topic not to be discussed in detail here is the issue of just satisfaction in relation to unilateral declarations and friendly settlements. The Court has not clearly defined policy on this point. In repetitive cases the strike of a case out of the Court’s list of cases refers to the ‘amounts awarded in similar cases’ or to the amount of compensation ‘proposed’. The expression ‘amounts awarded in similar cases’ points out the awards made by way of just satisfaction fixed by the Court in regular proceedings. Reference to the ‘amount of compensation proposed’ on the other hand suggests that the Court wishes to retain certain discretion in assessing the amount. There are differences within the case law of the Court as to the amount included in unilateral declarations; some have simply repeated the sum proposed in the context of unfruitful negotiations for a friendly settlement, if such existed, while others have reduced the quantity in the event of unreasonable refusal by the applicant or as encouragement to choose the friendly settlement route. According to Rule 62 A of Rules of Court,⁸ the unilateral declaration will contain an undertaking of the respondent Government to provide adequate redress and, as appropriate, to take necessary remedial measures.

And last, but not least, an example of the impact of just satisfaction is that, in 2012 the Court awarded a total amount of 176,798,888 euros for just satisfaction; the highest awards concerned Italy, Turkey and the Russian Federation.⁹

B. The Essence, Purpose and Scope of Just Satisfaction: Article 41 (Former 50) of the Convention and Rules of the Court: The Living Instrument and its Interpretation in Practice

The first judgment in which the Court awarded just satisfaction under the former Article 50 of the Convention was the judgment of 10 March 1972 in the case De Wilde, Ooms and Versyp v. Belgium (“Vagrancy Cases”). The meaning of just satisfaction was considered by the Court as follows:

“No doubt, the treaties from which the text of Article 50 was borrowed had more particularly in view cases where the nature of the injury would make it possible to wipe out entirely the consequences of a violation but where the internal law of the State involved precludes this being done. Nevertheless, the provisions of Article 50 which recognise the Court’s competence to grant to the injured party a just satisfaction also cover the case where the impossibility of restitutio in integrum follows from the very nature of the injury; indeed, common sense suggests that this must be so a fortiori. The Court sees no reason why, in the latter case just as in the former, it should not have the right to award to the injured persons the just satisfaction that they had not obtained from the Government of the respondent State.”¹⁰

“Where the consequences of a violation are only capable of being wiped out partially, the affording of’just satisfaction’ in application of Article 50 requires that:

1. i) the Court has found ‘a decision or measure taken’ by an authority of a Contracting State to be ‘in conflict with the obligations arising from the [...] Convention’;
2. ii) there is an ‘injured party’;
3. iii) the Court considers it ‘necessary’ to afford just satisfaction.”¹¹

This judgment was accompanied by numerous separate opinions on former Article 50 and its application, which shows that the subject raised heavy disputes.

Also, according to the present Article 41 of the Convention granting the satisfaction is dependent on finding a violation and absence of total reparation in domestic law. It is remarkable that, in essence, the text of the ‘just satisfacti...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Current Challenges in European Multilevel Human Rights Protection
• Keynote Address
• Binding Effect and Declaratory Nature of the Judgments of the European Court of Human Rights: An Overview
• Prescriptive Orders in the Operative Provisions of Judgments by the European Court of Human Rights: Beyond res judicanda?
• The Role of the Legislative Branch in the Implementation of the Judgments of the European Court of Human Rights
• Can’t Get Just Satisfaction
• Is There a Need to Advance the Jurisprudence of the European Court of Human Rights with Regard to the Award of Damages?
• France and the Award of Damages: The Payment of Just Satisfaction and Costs and Expenses in France
• The Constellation of Global and National Courts: Jurisdictional Redundancy and Interchange
• Subsidiarity in the Control of Decisions Based on Proportionality: An Analysis of the Basis of the Implementation of ECtHR Judgments into German Law
• Are Human Rights Undemocratic?
• Subsidiarity and the Brighton Declaration
• The Struggle by the German Courts and Legislature to Transpose the Strasbourg Case Law on Preventive Detention into German Law
• How a National Judge Implements Judgments of the Strasbourg Court
• International Law in the Recent Jurisprudence of the Hungarian Constitutional Court: Opening of a New Tendency?
• From Implementation to Translation: Applying the ECtHR Judgments in the Domestic Legal Orders
• The Role of the European Court of Human Rights in the Execution of its own Judgments: Reflections on Article 46 ECHR
• List of contributors