CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ

REPARATIONS TO CORPORATIONS: JUST SATISFACTION AWARDED …

2. Specifics of just satisfaction awards to business entities The basic rules on awarding just satisfaction are the same for all the categories of the applicants. Nonetheless, given the nature of legal persons, reparations to corporations have its specifics. First of them related to the types of damage, which could be suffered by business entities. To remind, the key components of just satisfaction award are a) pecuniary damage; b) non-pecuniary damage; and c) legal costs and expenses. With regard to pecuniary damage, in many judgments concerning business corporations the ECtHR awarded them with this type of reparations unconditionally. The situation was not the same in respect of non-pecuniary damage. 2.1 Non-pecuniary loss of corporations An award for non-pecuniary loss aims to compensate pain and suffering, such as helplessness, anxiety, or frustration. It is undisputable that the ECtHR may award such reparation to natural persons, victims of human rights violations. The question is whether corporations, being artificial persons, may suffer physical or mental injury. In the beginning, the answer to this question was negative or the ECtHR refused to address this issue. 75 For example, in the case Immobiliare Saffi v. Italy, the ECtHR concluded that ‘it is unnecessary to examine whether a commercial company may allege that it has sustained non-pecuniary damage through anxiety as, having regard to the facts of the case, it decides to make no award under this head.’ 76 In 2000, in the case of Comingersoll S.A. v. Portugal, the ECtHR revisited this approach and admitted that a legal person may suffer non-material damage and deserves a financial compensation. As to the content of non-pecuniary damage suffered by companies, the ECtHR noted that it may include categories of claims that are to a greater or lesser extent ‘objective’ or ‘subjective’. 77 These include the company’s reputation and suffering caused to the management team. In its case-law, the ECtHR noted that specific criteria govern the granting of compensation for non-pecuniary loss to legal persons. 78 In this context, it is necessary to take into account the reputation of the legal person, uncertainty in planning and decision-making, disruption in the management of the company, and the anxiety and inconvenience caused to the management of the company. 79 All the above mentioned confirm that the developments in the case-law of the ECtHR moved forward the practice of the ECHR and corporations may also be seen as a recipient of non-pecuniary damage. However, this form of reparation depends a lot on the type of violation of the ECHR claimed by a legal person. The first condition for awarding just satisfaction is finding an infringement of the ECHR. It means that non-pecuniary damage may be awarded only in respect of an Article of the ECHR, which is applicable to artificial persons. In theory, using the doctrine of de facto representative as elaborated in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania , 80 the ECtHR may find a violation of any provision of the ECHR upon the request of a legal person. Nonetheless,

75 Manifattura FL v. Italy , 27 February 1992, § 22, Series A no. 230-B. 76 Immobiliare Saffi v. Italy [GC], no. 22774/93, § 79, ECHR 1999-V. 77 Comingersoll [GC], cited above, § 35.

78 Rodinná záložna, spořitelní a úvěrní družstvo (just satisfaction), cited above. 79 Sovtransavto Holding v. Ukraine (just satisfaction), no. 48553/99, 2 October 2003. 80 Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, ECHR 2014.

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