Nebojša Raičević
LIABILITY OF THE STATE PARTIES FOR PECUNIARY DAMAGE CAUSED BY VIOLATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
The liability of States for pecuniary damage caused by a violation of the rights guaranteed by the Convention requires the cumulative fulfillment of three requirements. These requirements are not explicitly set out in the Convention but have been formulated in the extensive case-law of the ECtHR, by relying on tort law of the State Parties. The first requirement for liability is that there is a breach of the Convention as a wrongful act of the state. A violation of the Convention exists if the State Party has not complied with its obligations, either negative or positive. Thus, a State will be liable only for wrongful acts that are attributable to the State, i.e. for acts performed by its bodies or other entities that exercise elements of the governmental authority or act under the control of the State. The next condition is the existence of pecuniary damage. As the Convention does not contain a definition of pecuniary damage, the Court has taken its concept from the internal legal systems of European states. In its case-law, the Court awarded both compensation for sustained damage and for loss of profit. As there are no clear and precise criteria for calculating the amount of damages in the Convention and other ECtHR documents, the Court has a wide margin of appreciation. The third and the most complicated requirement for the liability of a State Party is the causal link between the wrongful act of the State and the damage caused. Like the national courts of most European countries, the Court first applies the but for test in order to determine the factual causality. Then, it establishes the legal causality, where the ECtHR has required a higher degree of causal connection. Unfortunately, the Court has never clarified what it was guided by when establishing sufficient causal connection. The Court judgments often contain vague and even contradictory explanations, which make it very difficult to formulate some general and definitive conclusions, especially concerning violations of procedural guarantees.
FORMS OF JUST SATISFACTION IN THE EUROPEAN SYSTEM OF HUMAN RIGHTS PROTECTION
Article 41 of the ECHR authorizes the Court to afford the applicant just satisfaction, with the aim to put him in the same legal position that he would have been in if his rights protected by the Convention had not been breached. Several forms of just satisfaction have been developed in the case law of the ECtHR. First, the Court has granted just satisfaction in the form of a declaratory statement that there was a violation of the rights guaranteed in the Convention. This measure has applied to minor violations of protected rights, where damage to the victim was minimal. The second form of just satisfaction is compensation for pecuniary damage, which the Court awarded in order to redress the applicant for actually sustained damage and loss of profit. In its application, the ECtHR insisted on proving a causal link between the violation of the Convention and the damage. However, clear and precise criteria for calculating the amount of compensation have not been laid down yet. There are only some general rules that are implicitly derived from the ECtHR case law. The next form of just satisfaction is compensation for non-pecuniary damage, which is applicable in case of violation of the applicant’s rights which are not of an economic nature. The Convention does not contain a list of grounds for compensation of this type of damage, but the Court has assessed in each individual case whether such damages would be awarded. In determining the amount of compensation, the basic and guiding principle is the principle of equity but the Court also takes into account the severity of the Convention violation, the duration and gravity of the infringement, the applicant’s personal characteristics and conduct, as well as the economic situation in the country where the violation has been committed. In addition to compensation for damage, the Court has awarded the reimbursement of the applicant’s costs and expenses incurred before the domestic authorities and the ECtHR. Reimbursement for the costs of the proceedings may be awarded only if four requirements have been cumulatively fulfilled: the costs and expenses were incurred in connection with a violation of the Convention; they were actually incurred; they are necessary; and they are reasonable as to quantum. On the other hand, the reimbursement of costs in the European system has certain advantages for the applicant which do not exist in national legal systems. Pursuant to Article 41 of the Convention, the Court has also ordered the States to take various individual measures with the aim of re-establishing the status quo ante. The practice of restitutio in integrum began in the mid-1990s, when the Court first ordered the restitution of confiscated real estate and then requested from the States to undertake some other specific measures.
