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Judge Bonello in his Partly Dissenting Opinion,25 who considered it to be ‘wholly inadequate and unacceptable that a court of justice should “satisfy” the victim of a breach of fundamental rights with a mere handout of legal idiom’.26 Putting it another way, he suggested that ‘hoping to satisfy a victim of injustice with cunning forms of words is like trying to quench the thirst of a parched child with fine mantras’.27 Dissenting on the same issue in the subsequent Kingsley judgment, Judge Casadevall (joined by Judges Bonello and Kovler) articulated a similar complaint, that ‘applicants are entitled to something more than a mere moral victory or the satisfaction of having contributed to enriching the Court’s case-law’.28 Although the particular concern in the Aquilina case was the denial of damages, Judge Bonello was clearly also concerned about the Court’s limited approach to remedies more generally:

It is regrettable enough as it is, albeit understandable, that, in the sphere of granting redress, the Court, in its early days, imposed on itself the restriction of never ordering performance of specific remedial measures in favour of the victim. That exercise in judicial restraint has already considerably narrowed the spectrum of the Court’s effectiveness. Doubling that restraint, to the point of denying any compensation at all to those found to have been the victims of violations of the Convention, has further diminished the Court’s purview and dominion.

The Court is empowered to award both pecuniary and non-pecuniary damages, as well as legal costs and expenses. Awards for non-pecuniary damage have reflected a very wide range of consequences suffered by the victims, including pain and suffering;29 anguish and distress;30 disruption to life;31 trauma;32 uncertainty, anxiety, stress and feelings of

25Six judges dissented on this point (with four others publishing Dissenting Opinions: Judges Tulkens, Casadevall, Fischbach and Greve).

26See his similar comments in his Dissenting Opinion in ECtHR, Nikolova v. Bulgaria (Appl. No. 31195/96), Judgment (Grand Chamber), 25 March 1999, Reports 1999-II.

27Aquilina v. Malta, Partly Dissenting Opinion of Judge Bonello.

28ECtHR, Kingsley v. United Kingdom (Appl. No. 35605/97), Judgment (Grand Chamber), 28 May 2002, Reports 2002-IV.

29See, e.g., ECtHR, KA v. Finland (Appl. No. 22751/95), Judgment (Fourth Section), 14 January 2003, not reported.

30See, e.g., ECtHR, Werner v. Poland (Appl. No. 26760/95), Judgment (Fourth Section), 15 November 2001, not reported.

31See, e.g., ECtHR, Steel and Morris v. United Kingdom (Appl. No. 68416/01), Judgment (Fourth Section), 15 February 2005, Reports 2005-II.

32See, e.g., ECtHR, MC v. Bulgaria (Appl. No. 39272/98), Judgment (First Section), 4 December 2003, Reports 2003-XII.

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injustice;33 embarrassment;34 frustration;35 inconvenience;36 feelings of isolation and helplessness;37 loss of opportunity;38 loss of reputation;39 and loss of relationship.40 There have been frequent criticisms that the principles on which damages awards are made are not clear or have lacked coherency,41 with an over-reliance on making assessments ‘on an equitable basis’,42 or indeed (as discussed above) to make no award at all on the basis that the finding of a violation itself is sufficient. This situation is, in part at least, a reflection of the inherent difficulties in quantifying damages:

… a precise calculation of the sums necessary to make complete reparation (restitutio in integrum) in respect of the pecuniary losses suffered by the applicant may be prevented by the inherently uncertain character of the damage flowing from the violation. The question to be decided in such cases is the level of just satisfaction, which is a matter to be determined by the Court at its discretion, having regard to what is equitable.43

Although damages awards have traditionally represented the mainstay of the Court’s approach to redress, they are not the primary concern of this chapter, which will focus instead on the developing picture as regards non-monetary remedies.

33See, e.g., ECtHR, C v. Finland (Appl. No. 18249/02), Judgment (Fourth Section), 9 May 2006, not reported.

34See, e.g., ECtHR, Peck v. United Kingdom (Appl. No. 44647/98), Judgment (Fourth Section), 28 January 2003, Reports 2003-I.

35See, e.g., ECtHR, RD v. Poland (Appl. Nos. 29692/96 and 34612/97), Judgment (Fourth Section), 18 December 2001, not reported.

36See, e.g., ECtHR, Stretch v. United Kingdom (Appl. No. 44277/98), Judgment (Fourth Section), 24 June 2003, not reported.

37See, e.g., ECtHR, Djavit An v. Turkey (Appl. No. 20652/92), Judgment (Third Section), 20 February 2003, Reports 2003-III.

38See, e.g., ECtHR, Sadak and Others v. Turkey (Appl. Nos. 29900, 29901, 29902 and 29903/ 96), Judgment (First Section), 17 July 2001, Reports 2001-VIII.

39See, e.g., ECtHR, Kyprianou v. Cyprus (Appl. No. 73797/01), Judgment (Grand Chamber), 15 December 2005, Reports 2005-XIII.

40See, e.g., ECtHR, Kutzner v. Germany (Appl. No. 46544/99), Judgment (Fourth Section), 26 February 2002, Reports 2002-I.

41Shelton, Remedies, at 197; F. Hampson, ‘The Future of the European Court of Human Rights’, in G. Gilbert, F. Hampson and C. Sandoval (eds.), Strategic Visions for Human Rights: Essays in Honour of Professor Kevin Boyle (London and New York: Routledge, 2011), at 163; P. Leach, Taking a Case to the European Court of Human Rights, 3rd edn (Oxford University Press, 2011) 466–8.

42See, e.g., ECtHR, Scoppola v. Italy (No. 2) (Appl. No. 10249/03), Judgment (Grand Chamber), 17 September 2009, not reported.

43ECtHR, Karandja v. Bulgaria (Appl. No. 69180/01), Judgment (Fifth Section), 7 October 2010, para. 76, not reported.

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3. A more expansive approach?

Latterly, however, the Court has exhibited a far greater degree of flexibility and creativity in its approach to redress, in going beyond its standard, declaratory approach in responding to various types of Convention violations, including the failure to compensate people who had lost property when it was nationalised, unfair trials, and, most starkly, individuals unlawfully detained by the state. As we will see below, this certainly represents a more incisive approach and one therefore that could be characterised as pushing against the boundaries of notions of state sovereignty. These developments are also mirrored in the expanding coverage of interim measures rulings,44 and indeed in the Court’s insistence, since 2005, on the binding nature of such measures,45 which have become a form of injunctive relief.46 It is important, therefore, to ask how the Court has done this, and, indeed, why.

3.1 Restitution of property

Requiring a state to take specific, directed steps in order to achieve restitutio in integrum has been most prevalent in property-related cases, notably those concerning the nationalisation of property, where applicants have successfully complained of violations of their right to ‘peaceful enjoyment’ of their possessions under article 1 of Protocol No. 1 to the Convention. In such cases, the Court may require the state to return land and buildings which had been unlawfully and unjustifiably expropriated. In its 1995 judgment in Papamichalopoulos and Others v. Greece,47 the Court held that the unlawfulness of an expropriation would affect the criteria for determining the reparation owed, taking inspiration from the judgment of the Permanent Court of International Justice in the Chorzów Factory case (of 13 September 1928) and referring to the

44See, e.g., ECtHR, Öcalan v. Turkey (Appl. No. 46221/99), Judgment (Grand Chamber), 12 May 2005, Reports 2005-IV; ECtHR, Evans v. United Kingdom (Appl. No. 6339/05), Judgment (Grand Chamber), 10 April 2007, Reports 2007-I; ECtHR, Grori v. Albania (Appl. No. 25336/04), Judgment (Fourth Section), 7 July 2009, not reported.

45ECtHR, Mamatkulov and Askarov v. Turkey (Appl. Nos. 46827 and 46951/99), Judgment (Grand Chamber), 4 February 2005, Reports 2005-I, para. 128.

46Interim measures are not further considered in this chapter, as they are discussed in Lambert-Abdelgawad, Chapter 7, this volume.

47ECtHR, Papamichalopoulos and Others v. Greece (Appl. No. 14556/89), Judgment (Chamber), 31 October 1995, Series A, No. 330-B.

principle of restitution in kind. A similar decision was made in Brumarescu v. Romania,48 thereby reinforcing a final domestic court order requiring restitution, but which had not been enforced. Failing such restitution, the Court in the Brumarescu judgment required the Romanian state to pay damages equivalent to the current value of the property. A further example is the case of Dacia S.R.L. v. Moldova,49 which concerned the unlawful deprivation of the applicant company’s hotel, in violation of article 1 of Protocol No. 1 and article 6. Under article 41, the Court held that the most appropriate form of restitutio in integrum would be for the hotel and underlying land to be returned to the applicant company, and for compensation to be paid for any additional losses sustained. In case that were to prove impossible, the Court went on to determine the monetary value of the hotel to be paid in lieu of restitution of it (about €7.6 million, at the current market value), less sums already paid back to the applicant company, so as to avoid any unjust enrichment.50 A decision to similar effect was made in Saghinadze and Others v. Georgia,51 which concerned the unlawful eviction of an Abkhazian internally displaced person (IDP) from a cottage belonging to the Georgian Ministry of Interior, after ten years’ right of occupation. However, in Saghinadze the Court also proposed that the provision of an alternative property (presumably of equivalence) would satisfy the obligation to redress. Under article 41, the Court found that:52

… the most appropriate form of redress would be restitutio in integrum under the IDPs Act, that is, to have the cottage restored to the first applicant’s possession pending the establishment of conditions which would allow his return, in safety and with dignity, to his place of habitual residence in Abkhazia, Georgia. Alternatively, should the return of the cottage prove impossible, the Court is of the view that the first applicant’s claim could also be satisfied by providing him, as an internally displaced person, with other proper accommodation or paying him reasonable compensation for the loss of the right to use the cottage …

48ECtHR, Brumarescu v. Romania (Appl. No. 28342/95), Judgment (Grand Chamber), 23 January 2001, Reports 2001-I. See also ECtHR, Zwierzynski v. Poland (Appl. No. 34049/ 96), Judgment (First Section), 2 July 2002, not reported; ECtHR, Hirschhorn v. Romania (Appl. No. 29294/02), Judgment (Third Section), 26 July 2007, not reported.

49ECtHR, Dacia SRL v. Moldova (Appl. No. 3052/04), Judgment (Fourth Section), 19 February 2009, not reported.

50Ibid., paras. 55–6.

51ECtHR, Saghinadze and Others v. Georgia (Appl. No. 18768/05), Judgment (Second Section), 27 May 2010, not reported.

52Ibid., para. 160.

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In cases concerning the violation of property rights, the Court has also obliged states to ensure that landowners are correctly registered. In Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfi v. Turkey (No. 2),53 the Court found a violation of article 1 of Protocol No. 1 because the Turkish authorities had refused to enter the applicant, a Greek Orthodox Church foundation, in the land register as the owner of property it had in fact held for more than 20 years. Consequently, the Court required the property to be registered in the applicant foundation’s name (within a period of three months), or failing that, the foundation was to be paid €100,000 by way of pecuniary damages.

There are two influences of which the Court has appeared to take particular cognisance in these cases. The first is that the Court may be acting, in effect, to reinforce the domestic law or in support of the approach taken by the national courts. In that sense, it could therefore be said that the principle of subsidiarity is being applied. However, the picture may be a complex one where there are divergences between (and indeed, within) national bodies as to what is the correct approach. In that situation, you may have an international court acting in concert with a national court, against what, in effect, may be the domestic forces of opposition to the implementation of the rule of law by the courts. Such resistance may well have a political basis, but could also result from more mundane problems such as endemic bureaucratic obstacles or lack of funds. The second influence is the nature or extent of the illegality in question. It may therefore be important to consider whether the expropriation of the land was itself unlawful, or whether the Convention violation had a different basis. For example, in Former King of Greece and Others v. Greece,54 the Court found a violation of article 1 of Protocol No. 1, not as a result of the state’s expropriation, as such, of the applicants’ property, but as a result of the failure to pay compensation. Accordingly, in view of the distinction which the Court made between lawful and unlawful expropriations, it was held that it was not appropriate to order restitutio in integrum, although the state was said to be free to decide to return some or all of the property to the applicants. Does this indicate that the ‘more unlawful’ the violation in question, the more

53ECtHR, Bozcaada Kimisis Teodoku Rum Ortodoks Kilisesi Vakfi v. Turkey (No. 2) (Appl. Nos. 37639 and 37655/03; 26736 and 42670/04), Judgment (Second Section), 3 March 2009, not reported.

54ECtHR, Former King of Greece and Others v. Greece (Appl. No. 25701/94), Judgment (Grand Chamber), 28 November 2002, not reported.

willing the Court is to ‘step in’ and direct the national authorities? We will return to this question below when considering unlawful detention.

3.2 Unfair domestic legal proceedings

For several decades, the consequences of the Court finding that an applicant had been convicted in the course of domestic criminal proceedings which were unfair, or had been party to inequitable civil proceedings, were often negligible. There was certainly no right to have the domestic proceedings reopened, nor was there any real expectation of that happening. This illogical state of affairs had, however, changed by the early 2000s.

The Court’s evolving stance on this question has enjoyed political support from the Committee of Ministers, which has explicitly recognised that in certain situations the re-examination of a case by the domestic authorities, or the reopening of proceedings, will be the most efficient means of achieving restitutio in integrum. A Committee of Ministers Recommendation in 200055 urged Convention states to ensure that it is possible to re-examine or reopen cases where the Court has found a violation of the Convention. As a result, many Convention states have now established means by which domestic proceedings can be reopened following a Court finding of a violation of the Convention.56 Where the domestic legal system does not yet allow for the reopening of proceedings in such circumstances, the Court will urge the state to take steps to ensure that the applicants can be adequately redressed, as it has done, for example, in relation to Bosnia and Herzegovina, and Albania.57 Since 2003, it has accordingly become common practice for the Court to urge states to reopen criminal proceedings, where it has found those proceedings to have violated the Convention.58 These are recommendations by the Court which are not strictly legally binding.

55Committee of Ministers, ‘Recommendation No. R(2000)2’, 19 January 2000.

56See ibid., Explanatory Memorandum, para. 3.

57See, e.g., ECtHR, Karanović v. Bosnia and Herzegovina (Appl. No. 39462/03), Judgment (Fourth Section), 20 November 2007, not reported; ECtHR, Laska and Lika v. Albania (Appl. Nos. 12315 and 17605/04), Judgment (Fourth Section), 20 April 2010, not reported.

58See, e.g., ECtHR, Gençel v. Turkey (Appl. No. 53431/99), Judgment (Third Section), 23 October 2003, not reported (and a series of other judgments against Turkey of the same date); ECtHR, Somogyi v. Italy (Appl. No. 67972/01), Judgment (Second Section), 18 May

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However, a judicial fault-line began to emerge in 2008, reflecting a view that such recommendations should, indeed, be made obligatory. Thus the Court may, but only rarely in practice does, require a state to hold a rehearing of the domestic proceedings. This fault line remains volatile, as the Court has not yet established a consistent position. In June 2009, the Grand Chamber explicitly reiterated in Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2) that the Court does not have jurisdiction to order (as opposed to recommend) the reopening of domestic proceedings.59 A different view, however, had emerged the previous year. In Vladimir Romanov v. Russia,60 having found a violation of article 6(1) together with article 6(3)(d), because the applicant had been denied an adequate opportunity as a criminal defendant to question witnesses against him, the chamber simply urged the respondent state either to hold a de novo trial, or reopen the domestic proceedings. Judges Spielmann and Malinverni argued in their joint concurring opinion that a specific direction to that effect should be included in the operative provisions of judgments where states have made provision for proceedings to be reopened. They reasoned that the reopening of proceedings represented the ‘best means’ of achieving restitutio in integrum. This therefore signalled a significant shift in judicial approach: rather than leaving states with the discretion to decide how to achieve restitution, Judges Spielmann and Malinverni wanted to impose a binding obligation to use the best means of doing so, as interpreted and specified by the Court.61 This position was then supported by four judges in the Grand Chamber judgment in Salduz v. Turkey,62 which highlighted flaws in criminal proceedings brought against the applicant, arising from an

2004, Reports 2004-IV; ECtHR, Stoichkov v. Bulgaria (Appl. No. 9808/02), Judgment (First Section), 24 March 2005, not reported; ECtHR, Claes and Others v. Belgium (Appl. Nos. 46825, 47132, 47502, 49010, 49104, 49195 and 49716/99), Judgment (First Section), 2 June 2005, not reported; ECtHR, Abbasov v. Azerbaijan (Appl. No. 24271/05), Judgment (First Section), 17 January 2008, not reported; ECtHR, Pishchalnikov v. Russia (Appl. No. 7025/04), Judgment (First Section), 24 September 2009, not reported; ECtHR, Aleksandr Zaichenko v. Russia (Appl. No. 39660/02), Judgment (First Section), 18 February 2010, not reported.

59Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2), para. 89.

60ECtHR, Vladimir Romanov v. Russia (Appl. No. 41461/02), Judgment (First Section), 24 July 2008, not reported.

61Judges Spielmann and Malinverni issued a similar opinion in ECtHR, Ilatovskiy v. Russia (Appl. No. 6945/04), Judgment (First Section), 9 July 2009, not reported.

62ECtHR, Salduz v. Turkey (Appl. No. 36391/02), Judgment (Grand Chamber), 27 November 2008, Reports 2008.

absence of legal assistance while he was in police custody, as well as deficient disclosure. In their Joint Concurring Opinion, Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska were critical of the majority’s timidity and cited the position of the Permanent Court of International Justice as regards the essence of reparations in the Factory at Chorzów case:

… that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.

They also prayed in aid article 35 of the Draft Articles of State Responsibility, which provides that states must make restitution for an internationally wrongful act unless it is materially impossible or it would involve a burden out of all proportion to the benefit. For Judges Rozakis et al., the award of damages as compensation was accordingly a subsidiary issue.

The following year, in Prežec v. Croatia,63 the First Section of the Court found a violation of article 6 in the course of criminal proceedings against the applicant, due to the failure to provide him with adequate legal aid representation. Judges Spielmann and Malinverni dissented against the majority verdict that the finding of a violation constituted sufficient just satisfaction (see the discussion above on this ‘formula’). Noting the anxiety, distress, confusion and frustration that would have been caused to the applicant by being sentenced to five months’ imprisonment, the dissenters broadened their attack on the Court’s reliance on declarations and its conservative approach to reparations:

… one wonders whether the mere finding of a violation of a right – no matter which – protected by the Convention is capable of repairing the harm done to the victim.64

In the same month as the Prežec judgment was delivered, Judges Spielmann and Malinverni found themselves in the majority on this point in the case of Maksimov v. Azerbaijan.65 Having found that criminal appeal proceedings had been unfair, a chamber majority (reflecting the view of Judges Vajić, Spielmann, Jebens and Malinverni)

63ECtHR, Prežec v. Croatia (Appl. No. 48185/07), Judgment (First Section), 15 October 2009, not reported.

64They also cited Judge Bonello’s Partly Dissenting Opinion in Aquilina v. Malta.

65ECtHR, Maksimov v. Azerbaijan (Appl. No. 38228/05), Judgment (First Section), 8 October 2009 (operative provision 3), not reported.

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held that the state must take all measures to reopen the proceedings. It did so by stipulating this obligation in the operative provisions. Judges Kovler, Steiner and Hajiyev dissented, although apparently more out of pragmatism than principle. They identified three categories of cases in which the Court had previously utilised the operative provisions in such a way: pilot judgments; unlawful detention cases; and cases concerning the non-enforcement of domestic judgments. Maksimov fell into none of these categories, and, according to the dissenters, the chamber had overstepped existing practice. In their view, to broaden these categories was a matter for the Grand Chamber. The Court now needs to take steps – by way of a Grand Chamber judgment – to resolve the inconsistency in its case law. The imposition of binding obligations on states to reopen proceedings is to be preferred, as being a logical consequence of the Court’s finding of a violation of the right to a fair trial.

The Court has proved less willing to make recommendations advocating re-hearings in respect of civil cases, apparently because of the diffi- culties this may cause to the other (non-state) parties to the proceedings. Having found that the applicant’s civil cases had not been heard by a ‘tribunal established by law’ in Gurov v. Moldova,66 the Court simply noted that the Moldovan Code of Civil Procedure did allow for proceedings to be reopened following the finding of a Convention violation by the Court. On that basis, the Court then declined to make any monetary award – possibly indicating a more reflective approach as to the relevance and sufficiency of the requisite remedial steps in such cases. By contrast, in the same year (2006), the Third Section of the Court, in the case of Lungoci v. Romania,67 included in its operative provisions a direction to the state to ensure that, if the applicant so desired, the proceedings (civil proceedings to recover possession of property) were reopened within six months of the judgment becoming final. Lungoci seems something of an anomaly, as the Court’s usual practice subsequently has been to recommend that states should reopen proceedings, rather than imposing a binding legal obligation to do so. For example, this was the outcome in the 2010 judgment in the Grand Chamber case

66ECtHR, Gurov v. Moldova (Appl. No. 36455/02), Judgment (Fourth Section), 11 July 2006, not reported.

67ECtHR, Lungoci v. Romania (Appl. No. 62710/00), Judgment (Third Section), 26 January 2006, not reported. See also the earlier decision in Claes and Others v. Belgium, in which the Court reached a ‘half-way house’ by stipulating in the operative provisions the payment of damages if the state had not granted a request by the applicants for a retrial or for the proceedings to be reopened.

of Cudak v. Lithuania,68 which concerned the dismissal of a Lithuanian switchboard operator who had been employed at the Polish Embassy in Vilnius – this followed her claim of sexual harassment against another embassy employee. In view of the way in which the principle of state immunity had been used to block her claim, the Court found that the applicant’s article 6 rights had been breached, which led the majority of the Grand Chamber to note that a retrial or the reopening of proceedings would be an appropriate response by the Lithuanian authorities. However, in his Concurring Opinion in that case, Judge Malinverni, supported by Judges Casadevall, Cabral Barreto, Zagrebelsky and Popović, argued that this point should have been included in the operative provisions of the judgment. Judge Malinverni’s arguments included several points about the Court’s approach to redress. First, that the Court should aim, wherever possible, to restore the status quo ante – the award of damages under article 41 being a subsidiary matter. Second, he emphasised the importance of the binding effect of the operative provisions of a Court’s judgment. Third, he argued that by including specific stipulations in the operative provisions, this would assist the Committee of Ministers in their role of supervising the execution of judgments. Finally, in the particular circumstances of the case, he considered that an award of damages was not sufficient to redress the damage caused to the applicant. She had first and foremost sought a decision to the effect that her dismissal had been unlawful – accordingly, only the reopening of the proceedings would provide ‘full satisfaction’.69

As regards unfair domestic legal proceedings, the Grand Chamber adopted a more interventionist stance in the Scoppola (No. 2) judgment in 2009, in relation to the imposition of a sentence by the Italian courts. Having found a violation of articles 6 and 7 as a result of the exaction of life imprisonment on the applicant (which was heavier than the maximum sentence for which he was liable at the time), the Grand Chamber was unanimous in ordering the state (using its operative provisions) to ensure that the applicant’s sentence was replaced with a penalty that was

68 ECtHR, Cudak v. Lithuania (Appl. No. 15869/02), Judgment (Grand Chamber), 23 March 2010, Reports 2010.

69In the context of civil proceedings, Judges Spielmann and Malinverni have expressed similar views, for example, in ECtHR, Fakiridou and Schina v. Greece (Appl. No. 6789/06), Judgment (First Section), 14 November 2008, not reported (violation of art. 1 of Protocol No. 1 arising from expropriation proceedings concerning the applicants’ land, which had lasted for several decades), and ECtHR, Lesjak v. Croatia (Appl. No. 25904/06), Judgment (First Section), 18 February 2010, not reported.