The notion of compensation as a remedial measure under Article 41 of the ECHR

Abstract

The obligation to provide a remedy to individuals whose human rights protected under the European Convention on Human Rights (hereinafter referred to as the Convention) have been violated, is primarily incumbent on the Contracting Parties. Yet Article 41 of the Convention enables its adjudicating body, the European Court of Human Rights (hereinafter referred to as the Court) to grant compensation to successful applicants provided certain conditions are fulfilled. In the exercise of this subsidiary role, the Court generally offers scant legal reasoning in its awards. Judges generally rely on the discretionary language in the aforementioned enabling provision, which concedes the Court a wide margin of appreciation. Incessant reliance on the principles of equity and necessity, coupled with the Court’s reluctance to substantiate its awards may raise questions on its legitimacy. Issues of incoherency and unpredictability are precursors to lack of reasoning, leading to divergent judgments. The Court has made allusions to foundation principles underlying the determination of whether a claim for compensation will be entertained and to criteria at the basis of the quantification of damages, yet in passing. Clear standardized guidelines are inexistent leaving applicants dwelling in legal uncertainty. The evasiveness of the Court in providing explanation for its pronouncements on just satisfaction has been criticised time and again and thus time is ripe to concretise the laconic innuendos on the subject that may be discerned from the Court’s obiter. This thesis undertakes a study to discern in concreto the criteria necessary for the submission of a claim for damages as well as an evaluation of the principles impinging on awards of compensation, making particular reference to cases decided by the Court against the State of Malta. An earnest attempt will be made not only to unveil these specific norms but also to delineate disputable divergences and ultimately contemplate on the future of the Court in the realm of compensation.