Information Note on the Court’s case-law 205

March 2017

Nagmetov v. Russia [GC] - 35589/08

Judgment 30.3.2017 [GC]

Article 41

Just satisfaction

Award of non-pecuniary damage in the absence of a properly submitted claim

Facts – The applicant had complained to the Court about his son’s death caused by a tear-gas grenade fired during a demonstration against corruption of public officials. In a judgme nt of 5 November 2015 a Chamber of the Court held, unanimously, that there had been a violation of Article 2 both in its substantive and procedural aspects. The Chamber took note of the fact that the applicant had not submitted a claim for just satisfactio n within the prescribed time-limit, and stated that no award would normally be made. However, referring to the powers conferred on it by Article 41 and previous cases in which the Court had exceptionally found it equitable to award compensation, even where no such claim had been made, the Chamber decided to make an award of EUR 50,000 in respect of non-pecuniary damage.

On 14 March 2016 the case was referred to the Grand Chamber at the Government’s request.

Law – The Grand Chamber held unanimously, that th ere had been a violation of Article 2 of the Convention under its substantive and procedural limbs.

Article 41

(a) Whether there was a just satisfaction claim – Article 41 did not impose any procedural requirements, non-compliance with which would circums cribe the Court’s decision on the matter of just satisfaction. However, certain requirements were contained in the Rules of Court and the Practice Direction on Just Satisfaction Claims , both of which were intended to establish a procedural framework for organising the Court’s activity and assisting it in the exercise of its judicial function. The Court’s prev ailing practice was that applicants’ indications of wishes for reparation mentioned in the application form in respect of alleged violations could not palliate the ensuing failure to articulate a claim for just satisfaction during the communication stage o f the proceedings.

The applicant’s indication of a wish for eventual monetary compensation as expressed at the initial non-contentious stage of the procedure before the Court did not amount to a claim within the meaning of the Rules of Court and it was un contested that no claim for just satisfaction had been made during the communication procedure in the proceedings before the Chamber.

(b) Whether the Court had competence to make a just-satisfaction award in the absence of a properly made claim and wheth er it was appropriate to make such an award – While it would not normally consider of its own motion the question of just satisfaction, neither the Convention nor the Protocols thereto precluded the Court from exercising its discretion under Article 41. The Court therefore remained empowered to aff ord, in a reasonable and restrained manner, just satisfaction on account of non-pecuniary damage arising in the exceptional circumstances of a given case, where a claim had not been properly made. The exercise of such discretion should always take due acco unt of the basic requirement of adversarial procedure and in such cases it was appropriate to seek the parties’ submissions. In such exceptional situations it was first necessary to ascertain that a number of prerequisites had been met, before weighing the compelling considerations in favour of making an award.

(i) Prerequisites – Particular importance was to be attached to indications unequivocally showing that an applicant had expressed a wish to obtain monetary compensation. It was further necessary to ascertain that there was a causal link between the violation and the non-ma terial harm arising from the violation of the Convention.

(ii) Compelling considerations – On the basis of its conclusions concerning the prerequisites, the Court would then examine whether there were compelling considerations in favour of making an awar d. It was appropriate to take into account the particular gravity and the particular impact of the violation of the Convention and, if pertinent in the particular circumstances of a given case, the overall context in which the breach occurred. Further, the Court needed to ascertain whether there were reasonable prospects of obtaining adequate reparation, in terms of Article 41 of the Convention, at the national level.

It was common ground between the parties that the applicant had sustained non-material ha rm arising from the violation of Article 2 and that there was a causal link between the violation and the harm. The applicant’s interest in obtaining compensation had been expressed. The question was whether any compelling considerations made it necessary to afford him just satisfaction. The Court considered that the finding of a violation would not constitute in itself sufficient just satisfaction. There was no indication, and the respondent Government had not argued otherwise, that the domestic law allowe d adequate reparation to be sought and obtained within a reasonable time in respect of the Court’s findings concerning the death inflicted on the applicant’s son and the defects in the investigation.

As such, the Grand Chamber was satisfied that the case d isclosed exceptional circumstances which called for a just satisfaction award in respect of non-pecuniary damage, notwithstanding the absence of a properly made claim.

Conclusion : EUR 50,000 in respect of non-pecuniary damage (fourteen votes to three).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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