CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ

REPARATIONS TO CORPORATIONS: JUST SATISFACTION AWARDED …

1.3.1 Pecuniary damage The aim of pecuniary damage is to place the applicant in the position in which they would have been had the violation found not taken place, in other words, restitutio in integrum . 45 It means that the ECHR imposes on the respondent state a legal obligation to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. 46 The compensation should involve both loss actually suffered ( damnum emergens ) and loss, or diminished gain, to be expected in the future ( lucrum cessans ). The applicant must show that a clear causal link existed between the damage claimed and the violation alleged. 47 The applicant should submit relevant documents to prove, as far as possible, not only the existence but also the amount or value of the damage. 48 Normally, the ECtHR’s award will reflect the fully calculated amount of the damage. Nevertheless, if the actual damage cannot be precisely calculated, the ECtHR will make an estimate based on the facts at its disposal. It is also possible that the ECtHR may find reasons in equity to award less than the full amount of the loss. This situation occurs quite frequently in practice. 1.3.2Non-pecuniary damage The ECtHR’s award in respect of non-pecuniary damage is intended to provide financial compensation for non-material harm. 49 This harm may be seen in different forms of mental or physical suffering, for example, due to the loss of freedom or torture. 50 The nature of non pecuniary damage does not lend itself to precise calculation. Therefore, the amounts awarded by the ECtHR may vary considerably. There is no right to compensation for non-pecuniary damage even if the suffering of a person was extensive. 51 If the existence of such damage is established, the ECtHR may award payment of non-pecuniary loss when necessary. It will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law. It is important for the ECtHR to know how the applicant evaluates the extent of sustained distress. If claimants wish to be compensated for non-pecuniary damage, they are invited to specify a sum, which in their view would be equitable. Applicants who consider themselves victims of more than one violation may claim either a single lump sum covering all alleged violations or a separate sum for each alleged violation. In determining the specific amount of compensation for non-pecuniary damage, the ECtHR takes into account the living index of the CoE Member States. 52 Therefore, the awards in respect of comparable violations concerning different responding states may be dissimilar.

45 Para. 10 of the Practice directions on just satisfaction claims. 46 Forminster Enterprises Limited v. the Czech Republic (just satisfaction), no. 38238/04, § 11, 10 March 2011. 47 Družstevní záložna Pria (just satisfaction), cited above, § 9. 48 East West Alliance Limited, cited above, § 233. 49 Para. 13 of the Practice directions on just satisfaction claims. 50 Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010. 51 Ligue du monde islamique and Organisation islamique mondiale du secours islamique v. France , no. 36497/05 and 37172/05, § 65, 15 January 2009. 52 REID, K. A Practitioner’s Guide to the European Convention on Human Rights. Sweet & Maxwell, 2012, p. 849.

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