NGOs under European Convention on Human Rights / Tymofeyeva

must prove that 1) the costs were actually incurred, 2) they were necessary to prevent a violation, and 3) they were reasonable in terms of amount. 1397 This brings us to the next area, namely, to the types or components of the just satisfaction awards. In regard to Article 41 of the Convention , it must be stressed again that just satisfaction under this provision cannot be claimed by an applicant as a right. 1398 It can be awarded by the Court only if the conditions mentioned above were satisfied from the benevolence of the Convention body. Nonetheless, there is exception to this rule. On the basis of the Convention, national authorities shall award compensation directly under Article 3 of Protocol No. 7 . This provision of the Convention envisages that the compensation is payable where the conviction of a person had been reversed by the domestic courts only on the ground of a new or newly discovered fact. Therefore, this Article belongs to the rarely invoked provisions. The case of Poghosyan and Baghdasaryan v. Armenia 1399 may serve as an unusual example of the Court’s practice in this respect. Mr Poghosyan, the first applicant in the case, alleged, in particular, that no compensation for non-pecuniary damage had been awarded to him in respect of his ill-treatment, unlawful arrest and detention, and unfair conviction. He relied on Article 3 of Protocol No. 7 , the aim of which is to confer the right to compensation on persons convicted as a result of a miscarriage of justice. According to the facts of the present case, Mr Poghosyan was found guilty of murder and rape and sentenced to fifteen years’ imprisonment. He protested his innocence and due to the new investigation (the real perpetrator was found) his conviction was quashed. The applicant was released from prison. Two of the police officers who undertook the initial investigation into the murder were subsequently convicted of exceeding their powers after a regional court found that they had ill treated the applicant in order to extract a confession. In separate civil proceedings, the Mr Poghosyan was awarded compensation in respect of lost earnings, but his claim in respect of non-pecuniary damage was dismissed on the grounds that damage of that type was not covered by the Civil Code of Armenia. The Court noted that the purpose of Article 3 of Protocol No. 7 is not merely to recover any pecuniary loss caused by a wrongful conviction, but also to provide a person convicted with compensation for any non-pecuniary damage, such as distress, anxiety, inconvenience and loss of enjoyment of life. No such compensation, however, was available to the applicant in the present case. There had accordingly been a violation this Article. This case is important from the standpoint that the Convention envisages, though to a very limited extent, the right to compensation. Nonetheless, this is such a particular situation, that it would be incorrect to generalise that the Court, on the basis of the Convention, is under an obligation to provide an applicant with just satisfaction. The purpose of the Court’s award in respect of damages is to compensate the applicant for the actual harmful consequences of a violation. It is not intended, however, to punish the contracting party responsible. Moreover, it is considered as inappropriate to accept claims for damages with labels such as ‘punitive’, ‘aggravated’ or ‘exemplary’.

1397 LEACH, 2011, cited above, p. 8.34. 1398 REID, 2012, cited above, p. 833. 1399 Poghosyan and Baghdasaryan v. Armenia , no. 22999/06, § 3, ECHR 2012.

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