Nagmetov v. Russia: opening up Pandora’s Box on Article 41?

By Dr. Elisabeth Lambert Abdelgawad
Assoc. Prof. Edith Cowan University (Perth, Western Australia)

The allocation of just satisfaction by the Court has become a more controversial issue, probably due to the increasing number of applications where very serious violations occurred. ‘Article 41 is probably one of the provisions which have raised the most important difficulties to judges over the years’ (E. Lambert Abdelgawad, ‘Is there a need to advance the jurisprudence of the European Court of Human rights with regard to the award of damages?’, in A. Seibert-Fohr & M. E. Villiger (eds) Judgments of the European Court of Human Rights – Effects and Implementation, Ashgate, Nomos, 2014, 116).

According to Rule 60(1) of the Rules of the Court, an applicant ‘must make a specific claim to that effect’, and if he/she fails to do so, ‘the Chamber may reject the claims in whole or in part’ (para.3). The Practice Direction on Just satisfaction claims states that (para.14): ‘It is in the nature of non-pecuniary damage that it does not lend itself to precise calculation. If the existence of such damage is established, and if the Court considers that a monetary award is necessary, it will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law’ (para.14). According to the dominant practice of the Court, no award is allocated in the absence of a formal claim. Yet a few exceptions happened in the past but none of these involving the Grand Chamber. Thus the judgment delivered by the GC in the Nagmetov v. Russia on 30 March 2017 has offered a good opportunity to clarify this issue.

Facts and Judgment:

The applicant was alleging a violation of article 2 ECHR because of his son’s death following the use of a lethal weapon against him during a public gathering in a village. He complained about the lack of an effective investigation as well. The applicant had made a just satisfaction claim in the application form. Yet, following the communication of the case, the applicant’s representative was invited to submit just satisfaction claims in accordance with Rule 60 of the Rules of the Court. On 11 October 2012, on an exceptional basis, the President of the Section offered the lawyer a new possibility to submit observations and claims as apparently her former legal office had not forwarded the previous message to her new address. Yet none were submitted. Before the Grand Chamber, the applicant ‘made a written statement confirming his interest in pecuniary compensation’ (para.52) and mentioned the fact that no amount had been specified because he ‘could not at the time and cannot now ‘put a price’’ (para.52) on his son’s life. After concluding to a violation of article 2, the Chamber allocated the applicant 50,000 euros in respect of the non-pecuniary damage. Judge Sajo wrote a concurring opinion stating that ‘the judgment consolidates a line of authority which, in exceptional cases, awards just satisfaction under Article 41’ of its own motion but considered that ‘in the light of Article 30 of the Convention, and in view of the importance of the principle of ne ultra petitum, it would have been more appropriate to refer this matter to the Grand Chamber for consideration’. The case was transferred to the GC under article 43 after a request made by the government.

The Grand Chamber endorsed the Chamber’s findings regarding the conclusion under Article 2. Coming to the issue under article 41, the government relied on the principle of subsidiarity, ‘the Court’s primary role of setting human-rights standards across Europe rather than allocating monetary compensation’, and on the ne ultra petitum rule and thus asked the Court not to allocate any just satisfaction. The Court replied that the principle ne ultra petitum doesn’t prevent the Court ‘from applying a degree of flexibility’ (para.72). One could have expected a more assertive statement: it seems to us that this principle should only have an impact when a request has been made. The Court also reiterated that the ‘awarding of sums of money to applicants by way of just satisfaction is not one of the Court’s main duties (…)’ (para.64).

The reasoning of the Court is made in three steps: whether there was a just satisfaction claim, whether it had competence to make a just-satisfaction award and whether it was appropriate to make an award. The Grand Chamber (like the Chamber) held that there was no claim ‘within the meaning of Rule 60 of the Rules of the Court, read together with its Rule 71 para 1 in the context of the present case’ (para.61). By contrast, judges Nussberger and Lemmens, in their joint concurring opinion, took the view that a claim had been made at the early stage of the proceedings and that there is no indication from the rules of the Court about when a claim must be submitted. Moreover, they argued that, for non-pecuniary damage, no claim needs to be made. Then, the Court held that ‘a degree of flexibility, essentially in respect of non-pecuniary damage’ (para.72) is required, ‘taking into account the exceptional circumstances of the cases, for instance the absolute or fundamental character of the right or freedom violated’ (para.69). This flexibility has been applied to non-pecuniary damage as ‘it does not lend itself to a process of calculation or precise quantification’ (para.72).

In order to clarify the Court’s approach and lay the groundwork for future practice, it then listed the two prerequisites and two compelling considerations in the absence of a properly made claim (para.78). These clarifications are to represent the main contribution from the GC in this judgment. As to the prerequisites (which were not made explicit nor even implicit in the Chamber judgment), it held that there must be an unequivocal indication by the applicant as to the desire to get compensation (which indeed was the case here). In so doing, the GC seems to eventually restrict the scope of exceptional cases. Moreover, a causal link between the violation of the Convention and the non-material harm must be ascertained. On this aspect, the Court held that it ‘is not inclined to conclude in the particular circumstances of the present case that the applicants should, ipso facto, bear the unfavourable consequence of such an omission’ (para.85). The Court also explained that the power it has to afford just satisfaction in the absence of a properly made claim ‘should always take due account of the basic requirement of adversarial procedure’ (para.77). These two last indications were however not made clear by the Court. As to the two compelling considerations, the Court must ensure ‘the particular gravity and the particular impact of the violation of the Convention’ (para.81) and the unavailability or partial availability of adequate reparation at domestic level. The Court, taking into account the lapse of time since the events occurred, held that there existed no possibility for a pecuniary compensation nor for restitutio in integrum such as ‘a proper investigation capable of leading to the punishment of those responsible’ (para.89). These statements weighed heavily in the final decision of the GC (and also previously of the Chamber) to allocate the amount of 50,000 euros.

A more uncomfortable situation for the Court?

Was it strategically worth referring the case to the GC? The situation may seem more unclear now than it was previously. This is not the first time the European Court of Human rights has awarded just satisfaction of its own motion, and in this judgment it did so with the large majority of 14 to 3 votes. Yet, the effort made by the Grand Chamber to clarify the practice under article 41 (and this being the ground why a deferral was agreed upon by the panel), has apparently not convinced; on the one hand, Judges Nussberger and Lemmens in their joint concurring opinion suggested, in view of clarification, to amend Rule 60 of the Rules of the Court so that exceptions ‘can easily be applied by the Court in each individual case’ (para.21). They consider the conditions listed by the GC as being ‘unworkable’, too ‘vague’ and ‘imprecise’. On the other hand, the three dissenting judges (Raimondi, O’Leary and Ranzoni) concluded to ‘an increase in legal uncertainty’ and more importantly to a higher risk of non-compliance with Rule of the Court and Practice Directions by the parties (para.39). It is true that the two compelling conditions expressed by the Court ‘coincide almost entirely with the general conditions for making an award in respect of non-pecuniary damage’ as noted by Judges Nussberger and Lemmens. The prerequisite ‘that there must be an unequivocal indication by the applicant as to the desire to get compensation’ is quite ambiguous. Does it mean that the Court only wants to repair an omission by the victim’s representative?

More seriously, in a very detailed joint dissenting opinion, judges Raimondi, O’Leary and Ranzoni, while agreeing ‘with the existence of a discretion in the hands of the Court’ (…) ‘insist that it is circumscribed – as all discretions should be – by clear, coherent and accessible procedural (and substantive rules)’ (para.31).

In all the 13 previous cases where a Chamber allocated just satisfaction of its own motion for moral damage, the decision was taken by a unanimous vote. More importantly, the amount varied from 2000 to 17000 euros with an average of 6769 euros per case. Thus it seems to us that the core issue, not very explicitly acknowledged, is not so much about the lack of clear rules but more about the risk of very high amounts of money requested by the Court of its own motion from a State. Indeed the judges in their dissenting opinions seemed concerned by the ‘quantum of the award’ (para.39) and by the fact that ‘this differentiated approach to exceptional awards’ will only concern certain States (para.39). This latter risk has not really been illustrated by the practice so far but comes back to the concern of aligning the amounts with the GDP. The Court has always been uncomfortable to afford what is being considered as a big amount of money, probably considering that it meant acknowledging punitive damages. It is true that the Court ‘has consistently rejected claims for punitive damages’ although an opposite view has been strongly affirmed by judge Pinto De Albuquerque (joined by Judge Vucinic under the Cyprus v. Turkey, GC judgment on just satisfaction, 12 May 2014, pp.24).

Opening up Pandora’s Box on Article 41 and the corresponding rules of the Court, as suggested by some judges, may be quite risky. In conclusion to the article mentioned in introduction, we recommended that Article 41 should be more interpreted in line with the other measures afforded under Article 46 – what the GC precisely did here – compensating the impossibility for the State to offer any redress to the victim. Yet this strategy, which comes back to a literal interpretation of article 41, should be applied not only when no claim has properly been made under article 41, but in all cases. However, has the Court equipped itself with the capacities to carry out this new policy? Probably not. In the same article, we made the recommendation that institutional changes, such as delegating the mission under Articles 41 and 46 to a specific section, should follow this substantial move. Yet it is certainly not what the GC had in mind when delivering this judgment.

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