Article 6(1) ECHR lists a number of elements comprising the fair administration of justice. To some extent, this paragraph describes the general characteristics of judicial institutions and outlines the broad parameters by which the fairness of a proceeding can be judged. What is imperative, however, is that the individual has the opportunity to have her/his case heard in the first place, and subsequently it is important that the court’s decision becomes operative as soon as possible.
Firstly, with regard to access to court, one important principle is that the state cannot restrict or eliminate judicial review in certain fields or for certain classes of individuals. Many important cases challenging state practices in this area have been brought by prisoners. In Golder v. The United Kingdom (Application No. 4451/70, Judgement of 21 February 1975), a prisoner who wished to bring a civil action for defamation against a prison guard who had falsely accused him of instigating a prison riot had his letters to both a solicitor and the European Commission of Human Rights censored and withheld by the prison authorities. The European Court of Human Rights found a violation both of his right to correspondence under Article 8 and his right of access to court under Article 6(1). In Campbell and Fell v. The United Kingdom (Application No. 8342/95, Judgement of 28 June 1984), prisoners charged with disciplinary offences for having participated in a sit-in were denied their request to consult a solicitor. Although they were ultimately granted access, they were only permitted to consult with the solicitor within the sight and hearing of a prison officer. In finding a violation of Article 6(1) of the Convention, the European Court of Human Rights held that the absence of privileged contact between lawyer and client amounted to an interference with the right of access to court.
Secondly, access to a judicial forum must be substantive, not just formal. The European Commission and Court have applied this principle in several cases raising different aspects of the right of access to court. In Airey v. Ireland (reproduced below), the Court found that a refusal to grant legal aid to an indigent woman seeking a judicial separation from her abusive husband violated her right of access to court under Article 6(1). Although to date the Strasbourg organs have only reviewed access to court cases in the context of civil litigation, in which the right of access is exercised actively by the individual, access is equally important to the proper conduct of criminal cases in that it provides protection against the determination of a criminal charge by a body not meeting the standards dictated by Article 6.
A third issue related to the right to a court concerns implementation and is discussed below.
Airey v. Ireland
European Court of Human Rights
Application No. 6289/73
Judgement of 9 October 1979
Keywords: access to court &ndash respect for family life
[?]
Particular facts of the case
8. Mrs. Johanna Airey, an Irish national born in 1932, lives in Cork. She comes from a humble family background and went to work at a young age as a shop assistant. She married in 1953 and has four children, the youngest of whom is still dependent on her. At the time of the adoption of the Commission’s report, Mrs. Airey was in receipt of unemployment benefit from the State but, since July 1978, she has been employed. Her net weekly wage in December 1978 was §39.99. In 1974, she obtained a court order against her husband for payment of maintenance of §20 per week, which was increased in 1977 to §27 and in 1978 to §32. However, Mr. Airey, who had previously been working as a lorry driver but was subsequently unemployed, ceased paying such maintenance in May 1978.
Mrs. Airey alleges that her husband is an alcoholic and that, before 1972, he frequently threatened her with, and occasionally subjected her to, physical violence. In January 1972, in proceedings instituted by the applicant, Mr. Airey was convicted by the District Court of Cork City of assaulting her and fined. In the following June he left the matrimonial home; he has never returned there to live, although Mrs. Airey now fears that he may seek to do so.
9. For about eight years prior to 1972, Mrs. Airey tried in vain to conclude a separation agreement with her husband. In 1971, he
declined to sign a deed prepared by her solicitor for the purpose and her later attempts to obtain his co-operation were also unsuccessful.
Since June 1972, she has been endeavouring to obtain a decree of judicial separation on the grounds of Mr. Airey’s alleged physical and mental cruelty to her and their children, and has consulted several solicitors in this connection. However, she has been unable, in the absence of legal aid and not being in a financial position to meet herself the costs involved, to find a solicitor willing to act for her.
AS TO THE LAW
[?]
II. ON ARTICLE 6 PARA. 1 TAKEN ALONE (art. 6-1)
[?]
20. [?]Mrs. Airey cites the Golder judgment of 21 February 1975 (Series A no. 18) where the Court held that this paragraph embodies the right of access to a court for the determination of civil rights and obligations; she maintains that, since the prohibitive cost of litigation prevented her from bringing proceedings before the High Court for the purpose of petitioning for judicial separation, there has been a violation of the above-mentioned provision.
21. The applicant wishes to obtain a decree of judicial separation. There can be no doubt that the outcome of separation proceedings is “decisive for private rights and obligations” and hence, a fortiori, for “civil rights and obligations” within the meaning of Article 6 para. 1 (art. 6-1); this being so, Article 6 para. 1 (art. 6-1) is applicable in the present case (see the König judgment of 28 June 1978, Series A no. 27, pp. 30 and 32, paras. 90 and 95). Besides, the point was not contested before the Court.
24. The Government contend that the application does enjoy access to the High Court since she is free to go before that court without the assistance of a lawyer.
The Court does not regard this possibility, of itself, as conclusive of the matter. The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (see, mutatis mutandis, the judgment of 23 July 1968 in the “Belgian Linguistic” case, Series A no. 6, p. 31, paras. 3 in fine and 4; the above-mentioned Golder judgment, p. 18, para. 35 in fine; the Luedicke, Belkacem and Koç judgment of 28 November 1978, Series A no. 29, pp. 17-18; para. 42; and the Marckx judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see, mutatis mutandis, the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 25). It must therefore be ascertained whether Mrs. Airey’s appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily.
Contradictory views on this question were expressed by the Government and the Commission during the oral hearings. It seems certain to the Court that the applicant would be at a disadvantage if her husband were represented by a lawyer and she were not. Quite apart from this eventuality, it is not realistic, in the Court’s opinion, to suppose that, in litigation of this nature, the applicant could effectively conduct her own case, despite the assistance which, as was stressed by the Government, the judge affords to parties acting in person.
In Ireland, a decree of judicial separation is not obtainable in a District Court, where the procedure is relatively simple, but only in the High Court. A specialist in Irish family law, Mr. Alan J. Shatter, regards the High Court as the least accessible court not only because “fees payable for representation before it are very high” but also by reason of the fact that “the procedure for instituting proceedings ? is complex particularly in the case of those proceedings which must be commenced by a petition”, such as those for separation (Family Law in the Republic of Ireland, Dublin 1977, p. 21).
Furthermore, litigation of this kind, in addition to involving complicated points of law, necessitates proof of adultery, unnatural practices or, as in the present case, cruelty; to establish the facts, expert evidence may have to be tendered and witnesses may have to be found, called and examined. What is more, marital disputes often entail an emotional involvement that is scarcely compatible with the degree of objectivity required by advocacy in court.
For these reasons, the Court considers it most improbable that a person in Mrs. Airey’s position (see paragraph 8 above) can effectively present his or her own case. This view is corroborated by the Government’s replies to the questions put by the Court, replies which reveal that in each of the 255 judicial separation proceedings initiated in Ireland in the period from January 1972 to December 1978, without exception, the petitioner was represented by a lawyer
The Court concludes from the foregoing that the possibility to appear in person before the High Court does not provide the applicant with an effective right of access and, hence, that it also does not constitute a domestic remedy whose use is demanded by Article 26 (art. 26)
25. The Government seek to distinguish the Golder case on the ground that, there, the applicant had been prevented from having access to court by reason of the positive obstacle placed in his way by the State in the shape of the Home Secretary’s prohibition on his consulting a solicitor. The Government maintain that, in contrast, in the present case there is no positive obstacle emanating from the State and no deliberate attempt by the State to impede access; the alleged lack of access to court stems not from any act on the part of the authorities but solely from Mrs. Airey’s personal circumstances, a matter for which Ireland cannot be held responsible under the Convention.
Although this difference between the facts of the two cases is certainly correct, the Court does not agree with the conclusion which the Government draw therefrom. In the first place, hindrance in fact can contravene the Convention just like a legal impediment (above-mentioned Golder judgment, p 13, para. 26). Furthermore, fulfillment of a duty under the Convention on occasion necessitates some positive action on the part of the State; in such circumstances, the State cannot simply remain passive and “there is ? no room to distinguish between acts and omissions” (see, mutatis mutandis, the above-mentioned Marckx judgment, p. 15, para. 31, and the De Wilde, Ooms and Versyp judgment of 10 March 1972, Series A no. 14, p. 10, para. 22). The obligation to secure an effective right of access to the courts falls into this category of duty.
26. The Government’s principal argument rests on what they see as the consequence of the Commission’s opinion, namely that, in all cases concerning the determination of a “civil right”, the State would have to provide free legal aid. In fact, the Convention’s only express provision on free legal aid is Article 6 para. 3 (c) (art. 6-3-c) which relates to criminal proceedings and is itself subject to limitations; what is more, according to the Commission’s established case law, Article 6 para. 1 (art. 6-1) does not guarantee any right to free legal aid as such. The Government add that since Ireland, when ratifying the Convention, made a reservation to Article 6 para. 3 (c) (art. 6-3-c) with the intention of limiting its obligations in the realm of criminal legal aid, a fortiori it cannot be said to have implicitly agreed to provide unlimited civil legal aid. Finally, in their submission, the Convention should not be interpreted so as to achieve social and economic developments in a Contracting State; such developments can only be progressive.
The Court is aware that the further realisation of social and economic rights is largely dependent on the situation - notably financial - reigning in the State in question. On the other hand, the Convention must be interpreted in the light of present-day conditions (above-mentioned Marckx judgment, p. 19, para. 41) and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals (see paragraph 24 above). Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The Court therefore considers, like the Commission, that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention. The Court does not, moreover, share the Government’s view as to the consequence of the Commission’s opinion. It would be erroneous to generalize the conclusion that the possibility to appear in person before the High Court does not provide Mrs. Airey with an effective right of access; that conclusion does not hold good for all cases concerning “civil rights and obligations” or for everyone involved therein. In certain eventualities, the possibility of appearing before a court in person, even without a lawyer’s assistance, will meet the requirements of Article 6 para. 1 (art. 6-1) ; there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances. In addition, whilst Article 6 para. 1 (art. 6-1) guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations”, it leaves to the State a free choice of the means to be used towards this end. The institution of a legal aid scheme - which Ireland now envisages in family law matters (see paragraph 11 above) - constitutes one of those means but there are others such as, for example, a simplification of procedure. In any event, it is not the Court’s function to indicate, let alone dictate, which measures should be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6 para. 1 (art. 6-1) (see, mutatis mutandis, the National Union of Belgian Police judgment of 27 October 1975, Series A no. 19 p. 18, para. 39, and the above-mentioned Marckx judgment, p. 15, para. 31).
The conclusion appearing at the end of paragraph 24 above does not therefore imply that the State must provide free legal aid for every dispute relating to a “civil right”.
To hold that so far-reaching an obligation exists would, the Court agrees, sit ill with the fact that the Convention contains no provision on legal aid for those disputes, Article 6 para. 3 (c) (art. 6-3-c) dealing only with criminal proceedings. However, despite the absence of a similar clause for civil litigation, Article 6 para. 1 (art. 6-1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case.
27. The applicant was unable to find a solicitor willing to act on her behalf in judicial separation proceedings. The Commission inferred that the reason why the solicitors she consulted were not prepared to act was that she would have been unable to meet the costs involved. The Government question this opinion but the Court finds it plausible and has been presented with no evidence which could invalidate it.
28. Having regard to all the circumstances of the case, the Court finds that Mrs. Airey did not enjoy an effective right of access to the High Court for the purpose of petitioning for a decree of judicial separation. There has accordingly been a breach of Article 6 para. 1 (art. 6-1).
[?]
Comment
This is one of the earlier cases in which the European Court concluded that states may have positive obligations to fulfil in order to comply with the Convention; the first one was Marckx v. Belgium (Application No.6833/74, Judgement of 13 June 1979). The European Court has since regularly taken decisions entailing positive obligations of states, with regard to several articles, including, notably, Article 8 ECHR.
The right of access to court does not automatically provide for access to court at each stage of the procedure. Demands of flexibility and efficiency may justify the prior intervention of administrative or professional bodies. Such bodies have to comply with the requirements of Article 6 or be subject to subsequent control by a judicial body that complies with the requirements of Article 6 ECHR (Albert and le Compte v. Belgium , Application No. 7299/75, Judgement of 10 February 1983).
A fourth issue related to the right to a court concerns implementation. Once a court decision has been taken, the executive authority has to execute the decision; otherwise, there is no effective remedy under Article 6. In Immobiliare Saffi v. Italy (reproduced below), the European Court reached such a conclusion. In this case, a court order to vacate an apartment took thirteen years to enforce, despite numerous attempts by the bailiff. In the end, the apartment was repossessed following the death of the occupant. The case is also interesting as since 1999 more than fifty similar cases have been instituted against Italy, raising questions as to the effectiveness of the Convention there and about the problems related to systemic violations of human rights.
Immobiliare Saffi v. Italy
European Court of Human Rights
Application No. 22774/93
Judgement of 28 July 1999
Keywords: access to court &ndash property
[?]
58 [?]In any event, the Court recalls that the right to a court would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. It would be inconceivable that Article 6§ 1 should describe in detail procedural guarantees afforded to litigants &ndash proceedings that are fair, public and expeditious &ndash without protecting the implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention. Execution of a judgement given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see the Hornsby v. Greece judgement of 19 March 1997, Reports of Judgements and Decisions 1997-II, p. 510,§ 40).
Article 6 is therefore applicable in the present case.
[?]
66. The Court notes, firstly, that the postponement of the date by which the premises had to be vacated rendered nugatory the Livorno Magistrate’s decision on that point in his order of 21 November 1983. It should be noted in this connection that the decision on whether police assistance should be provided is made on the basis of the same factors &ndash the situation of the landlord and tenant, and the grounds for eviction &ndash as those the magistrate takes into consideration under section 56 of Law no. 392/78.
67. In addition, the Court observes that the assessment whether it was appropriate subsequently to stay enforcement of the order for possession and therefore de facto to extend the lease, was not subject to any effective review by the courts, since the scope of judicial review of the prefect’s decision was limited to verifying whether he had complied with the criteria governing the order of priority (see paragraph 42 above).
68. Furthermore, the fact that the system for staggering the provision of police assistance was extended on a six-monthly basis for almost nine years (see paragraphs 28-34 above) gives the impression that the Italian authorities were content to rely on that system rather than to seek effective alternative solutions to the public order problems in the housing sector.
69. In conclusion, while it may be accepted that Contracting States may, in exceptional circumstances and, as in this instance, by availing themselves of their margin of appreciation to control the use of property, intervene in proceedings for the enforcement of a judicial decision, the consequence of such intervention should not be that execution is prevented, invalidated or unduly delayed or, still less, that the substance of the decision is undermined.
In the present case, as the Court explained in paragraphs 54-56 above in connection with the complaint under Article 1 of Protocol No. 1, the impugned legislation rendered nugatory the Livorno Magistrate’s ruling in his order of 21 November 1983. Further, from the moment the prefect became the authority responsible for determining when the order for possession would be enforced, and in the light of the fact that there could be no effective judicial review of his decisions, the applicant company was deprived of its right under Article 6§ 1 of the Convention to have its dispute (contestation) with its tenant decided by a court. That situation is incompatible with the principle of the rule of law.
Consequently, there has been a violation of Article 6§ 1 of the Convention.
Comment
In Van de Hurk v. The Netherlands (Application No. 16034, Judgement of 19 April 1994) the applicant complained that the possibility for the executive to decide not to implement decisions taken by judicial tribunals violated Article 6(1). The Court agreed, tying the requirement of an independent tribunal to the notion of ‘determination’ of a right or obligation:
[T]he power to give a binding decision which may not be altered by a non-judicial authority to the detriment of an individual party is inherent in the very notion of a ‘tribunal’, as is confirmed by the word ‘determination’. [?] This power can also be seen as a component of the ‘independence’ required by Article 6 (1).
The case of Immobiliare Saffi has been followed by more than one hundred other cases where an applicant complained that a judgement was not being implemented by the executive for various reasons, including lack of executive capacity or a different policy being pursued by the executive authority. The European Court has pointed out that compliance with the law, including the final decision of a court, has precedence over other justifications. In the case of Antonetto v. Italy (Application No. 15918/89, Judgement of 20 July 2000) the European Court clearly pointed out that the question of lawfulness has precedence over other questions such as that of proportionality: whether or not a fair balance has been struck between general interests and individual interests. In the case concerned, the city of Turin did not comply with a Court order, using the principle of proportionality as justification.
Actual remedies
When a violation of a human rights convention has been found, the victim should in principle receive reparation which places the author or applicant, as far as possible, in the position he/she would have been in had the violation not taken place, restitutio in integrum. The extent of such reparation depends on the circumstances of each case and may include:
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award of compensation for pecuniary damage;
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award of compensation for costs of the proceedings;
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award for non-pecuniary damage;
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prevention of repetition or reoccurrence;
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non compensation measures such as the obligation to investigate; the obligation to punish those responsible;
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the finding of a violation as constituting sufficient reparation.
The various supervisory mechanisms have each defined their position in dealing with actual remedies. While the Human Rights Committee and the African Commission are in general relatively concise in their descriptions of the actual remedies to be awarded, the European Court and the Inter-American Court have often gone into much detail when defining the remedies. The European Court has been rather restrictive in its interpretation of the relevant articles, while the Inter-American Court has been more innovative and sometimes extensive in its interpretation. The two excerpts below deal with decisions on actual remedies showing how complex these decisions often are. Only the main paragraphs of the decisions on actual remedies are included but even then, the definition of compensation, of just satisfaction, of the actual remedies, can be difficult.
Ilascu et al. v. Moldova and Russia
European Court of Human Rights
Application No. 48787/99
Judgement of 8 July 2004
Keywords: reparation - compensation
[?]
1. The case originated in an application (no. 48787/99) against the Republic of Moldova and the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Moldovan nationals, Mr Ilie Ilascu, Mr Alexandru Lesco, Mr Andrei Ivancoc and Mr Tudor Petrov-Popa (“the applicants”), on 5 April 1999.
2. The application mainly concerns acts committed by the authorities of the “Moldavian Republic of Transdniestria” (“the MRT”), a region of Moldova which proclaimed its independence in 1991 but is not recognised by the international community.
[applicants complained, amongst others, about ill-treatment and about unjustified detention for a long period]
[?]
483. Article 41 of the Convention provides
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
484. The applicants submitted their claims for just satisfaction in November 2001.
In a letter received by the Court on 12 February 2004, Mr Tsnase submitted the new claims of his client, Mr Lesco, updated in order to take account of the period since 2001.
Mr Gribincea did likewise for the other applicants in a letter received by the Court on 24 February 2004.
485. The applicants contended that their conviction and detention had caused them to lose their jobs. Similarly, on account of the persecution to which their husbands had been subjected, Mrs Ilascu and Mrs Ivansoc had had to resign from their jobs in Tiraspol and move to Chiinsu. In addition, Mr Lesco’s family had had to leave their home in Tiraspol and look for new accommodation. The applicants claimed reimbursement of all the sums their wives and families had spent in order to visit them in prison and send them parcels. Lastly, in view of the deterioration of their physical health, the applicants had had large medical bills.
In particular, the applicants claimed the following sums.
Mr Ilascu claimed 1,861 euros (EUR) for loss of salary and other allowances on account of his detention from June 1992 until 28 February 1994, the date on which he was elected to the Moldovan parliament. He said that the allowances he was entitled to as a Member of Parliament had been paid to his family by the Moldovan Government. Mr Ivancoc claimed EUR 9,560 for loss of earnings and allowances from his arrest to date. Mr Petrov-Popa claimed EUR 21,510 for loss of income from his arrest to date. Mr Lesco claimed EUR 30,000, that being the value of the flat he had owned in Tiraspol which he had lost following his conviction and his family’s departure from Transdniestria. Mr Ilascu, Mr Ivansoc and Mr Petrov-Popa argued that, as only the Russian Federation controlled Transdniestrian territory, the Russian Federation alone should compensate them for pecuniary damage.
Taking into account the seriousness of the violations complained of, the circumstances of the case, the attitude of the respondent Governments, the lasting effects on their health and the trauma they had suffered, the applicants claimed the following sums for non-pecuniary damage: Mr Ilascu, EUR 7,395,000; Mr Ivansoc, EUR 7,842,000; Mr Petrov-Popa, EUR 7,441,000; and Mr Lesco, EUR 7,800,000.
With regard to the sums claimed for non-pecuniary damage, Mr Ilascu, Mr Ivancoc and Mr Petrov-Popa said that they would be satisfied if the Moldovan Government paid each of them EUR 1,000 and the Russian Federation paid them the remainder.
In short, taking all the heads of pecuniary and non-pecuniary damage together, the applicants claimed the following sums: Mr Ilascu, EUR 7,396,861; Mr Ivansoc, EUR 7,851,560; Mr Petrov-Popa, EUR 7,462,510; and Mr Lesco, EUR 7,830,000.
486. The Moldovan Government said that they were not opposed to the claims made by the applicants Ilascu, Ivansoc, and Petrov-Popa, in so far as it appeared therefrom that they would have to pay EUR 1,000 to each of the them. On the other hand, it found the sums claimed by Mr Lesco excessive and unsubstantiated.
The Russian Government said that they could not be held responsible for the alleged violations. Moreover, they contended that the facts the applicants complained of fell outside the Court’s jurisdiction ratione temporis.
In any event, they considered the sums claimed excessive and unsubstantiated.
487. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If, on the other hand, national law does not allow &ndash or allows only partial &ndash reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It follows,inter alia, that a judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Assanidze v. Georgia [GC], no. 71503/01,§ 198, 8 April 2004; Maestri v. Italy [GC], no. 39748/98,§ 47, 17 February 2004; Mentes and Others v. Turkey (Article 50), judgement of 24 July 1998, Reports 1998-IV, p. 1695,§ 24; and Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98,§ 249, ECHR 2000-VIII).
488. The Court reiterates that it has found violations of several Convention provisions by the Russian Federation and Moldova, the latter only since May 2001.
It has found that Mr Ilascu and Mr Ivansoc were subjected to treatment which it qualified as torture within the meaning of Article 3 of the Convention, that the other two applicants were subjected to inhuman and degrading treatment contrary to Article 3, that all the applicants were detained arbitrarily contrary to Article 5 and that Mr Ivansoc, Mr Lesco and Mr Petrov-Popa are still detained in breach of Article 5.
The Court has also found that Article 34 of the Convention was breached by both the Russian Federation and Moldova.
189. The Court does not consider the alleged pecuniary damage to have been substantiated, but it does not find it unreasonable to suppose that the applicants suffered a loss of income and certainly incurred costs which were directly due to the violations found. It also takes the view that as a result of the violations found the applicants undeniably suffered non-pecuniary damage which cannot be made good merely by the finding of a violation.
Consequently, regard being had to the extreme seriousness of the violations of the Convention of which the applicants were victims, and ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards them the following sums, plus any amount that may be chargeable in tax:
(a) to each applicant, EUR 180,000 for pecuniary and non-pecuniary damage arising from the violations of Articles 3 and 5 of the Convention;
(b) to each applicant, EUR 10,000 for non-pecuniary damage arising from the breach of Article 34 by the Russian Federation and Moldova.
490. The Court further considers that any continuation of the unlawful and arbitrary detention of the three applicants would necessarily entail a serious prolongation of the violation of Article 5 found by the Court and a breach of the respondent States’ obligation under Article 46§ 1 of the Convention to abide by the Court’s judgment.
Regard being had to the grounds on which they have been found by the Court to be in violation of the Convention (see paragraphs 352 and 393 above), the respondent States must take every measure to put an end to the arbitrary detention of the applicants still detained and to secure their immediate release.
B. Costs and expenses
491. For their lawyers’ fees Mr Ilascu claimed EUR 8,000 and Mr Ivansoc and Mr Petrov-Popa EUR 8,500 each. They also asked for EUR 2,500 in respect of various costs.
As appears from the contract between Mr Lesco’s wife and his lawyer, Mr Lesco claimed in addition EUR 200 per month for work by his counsel, making a total of EUR 11,800. That sum represents his counsel’s work and expenses since June 1999, when the application was lodged, a period of 59 months, the main items being drafting the application, documentary searches, drafting observations requested by the Court, preparation for the Court’s fact-finding mission, studying the records of the hearings before the Court’s delegates, communication costs (faxes, telephone bills, normal and urgent mail), translation costs and expenses for visits to the applicants in prison.
492. The Moldovan Government opposed the award of the sums claimed for costs and expenses on the ground that they had not been substantiated.
493. The Court reiterates that, in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, for example,Kalashnikov v. Russia , no. 47095/99, ECHR 2002-VI,§ 146).
The Court notes that the present case gave rise to several series of written observations, an adversarial hearing and the hearing to take witness evidence on the spot, which lasted seven days.
The evidence submitted to the Court shows that the applicants’ representatives, Mr Dinu, Mr Tnase and Mr Gribincea, incurred costs and expenses relating to the matters found to constitute the violations.
Ruling on an equitable basis and taking account of the work reasonably necessary to produce the large volume of documents and observations filed on the applicants’ behalf, the Court awards the applicants the overall sum of EUR 21,000, less the EUR 3,964 already paid in legal aid by the Council of Europe. This amounts to EUR 4,363 for Mr Dinu’s fees and secretarial costs, EUR 3,960 for Mr Gribincea’s fees and costs, and EUR 8,713 for Mr Tsnase’s fees and costs.
C. Default interest
494. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Holds by eleven votes to six that the applicants come within the jurisdiction of the Republic of Moldova within the meaning of Article 1 of the Convention as regards its positive obligations;
2. Holds by sixteen votes to one that the applicants come within the jurisdiction of the Russian Federation within the meaning of Article 1 of the Convention;
3. Holds unanimously that the Court does not have jurisdiction ratione temporis to examine the complaint under Article 6 of the Convention;
4. Holds by sixteen votes to one that the Court has jurisdiction ratione temporis to examine the complaints under Articles 2, 3, 5 and 8 of the Convention in so far as they concern events subsequent to 12 September 1997 in the case of the Republic of Moldova and 5 May 1998 in the case of the Russian Federation;
5. Holds by fifteen votes to two that the Court is not required to determine whether it has jurisdiction ratione temporis to examine the complaint under Article 1 of Protocol No. 1 to the Convention;
6. Holds unanimously that the complaint of a violation of Article 2 of the Convention on account of the fact that Mr Ilascu was sentenced to death by the “Supreme Court of the MRT” does not call for a separate examination;
7. Holds by eleven votes to six that there has been no violation of Article 3 of the Convention by Moldova on account of the ill-treatment inflicted on Mr Ilascu and the conditions in which he was detained while under the threat of execution;
8. Holds by sixteen votes to one that there has been a violation of Article 3 of the Convention by the Russian Federation on account of the ill-treatment inflicted on Mr Ilascu and the conditions in which he was detained while under the threat of execution, and that these must be termed torture within the meaning of that provision;
9. Holds by eleven votes to six that there has been a violation of Article 3 of the Convention by Moldova since May 2001 on account of the ill-treatment inflicted on Mr Ivancoc and the conditions in which he has been detained, and that these must be termed torture within the meaning of that provision;
10. Holds by sixteen votes to one that there has been a violation of Article 3 of the Convention by the Russian Federation on account of the ill-treatment inflicted on Mr Ivancoc and the conditions in which he has been detained, and that these must be termed torture within the meaning of that provision;
11. Holds by eleven votes to six that there has been a violation of Article 3 of the Convention by Moldova since May 2001 on account of the ill-treatment inflicted on Mr Lesco and Mr Petrov-Popa and the conditions in which they have been detained, and that these must be termed inhuman and degrading treatment within the meaning of that provision;
12. Holds by sixteen votes to one that there has been a violation of Article 3 of the Convention by the Russian Federation on account of the ill-treatment inflicted on Mr Lesco and Mr Petrov-Popa and the conditions in which they have been detained, and that these must be termed inhuman and degrading treatment within the meaning of that provision;
13. Holds by eleven votes to six that there has been no violation of Article 5 of the Convention by Moldova on account of the detention of Mr Ilascu;
14. Holds by eleven votes to six that there has been and continues to be a violation of Article 5 of the Convention by Moldova on account of the detention of Mr Ivancoc, Mr Le_co and Mr Petrov-Popa after May 2001;
15. Holds by sixteen votes to one that there was a violation of Article 5 of the Convention by the Russian Federation as regards Mr Ila_cu until May 2001, and that there has been and continues to be a violation of that provision as regards Mr Ivancoc, Mr Lesco and Mr Petrov-Popa;
16. Holds unanimously that there is no cause to examine separately the applicants’ complaint under Article 8 of the Convention;
17. Holds by fifteen votes to two that there has been no violation of Article 1 of Protocol No. 1 to the Convention;
18. Holds by sixteen votes to one that Moldova has failed to discharge its obligations under Article 34 of the Convention;
19. Holds by sixteen votes to one that the Russian Federation has failed to discharge its obligations under Article 34 of the Convention;
20. Holds by ten votes to seven that Moldova is to pay the applicants, within three months, the following sums, plus any tax that may be chargeable:
(a) to Mr Ivancoc, Mr Lesco and Mr Petrov-Popa, EUR 60,000 (sixty thousand euros) each in respect of pecuniary and non-pecuniary damage;
(b) to each applicant, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage sustained on account of the breach of Article 34;
(c) to the applicants, the overall sum of EUR 7,000 (seven thousand euros), less EUR 1,321.34 (one thousand three hundred and twenty-one euros and thirty-four cents) already received in legal aid, in respect of costs and expenses, made up of EUR 1,454.33 (one thousand four hundred and fifty-four euros and thirty-three cents) for Mr Dinu, EUR 1,320 (one thousand three hundred and twenty euros) for Mr Gribincea and EUR 2,904.33 (two thousand nine hundred and four euros and thirty-three cents) for Mr Tnase;
21. Holds by sixteen votes to one that the Russian Federation is to pay the applicants, within three months, the following sums, plus any tax that may be chargeable:
(a) to Mr Ilascu, EUR 180,000 (one hundred and eighty thousand euros) in respect of pecuniary and non-pecuniary damage;
(b) to each of the other applicants, EUR 120,000 (one hundred and twenty thousand euros) in respect of pecuniary and non-pecuniary damage;
(c) to each applicant, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage sustained on account of the breach of Article 34;
(d) to the applicants, the overall sum of EUR 14,000 (fourteen thousand euros), less EUR 2,642.66 (two thousand six hundred and forty-two euros and sixty-six cents) already received in legal aid, in respect of costs and expenses, made up of EUR 2,908.67 (two thousand nine hundred and eight euros and sixty-seven cents) for Mr Dinu, EUR 2,640 (two thousand six hundred and forty euros) for Mr Gribincea and EUR 5,808.67 (five thousand eight hundred and eight euros and sixty-seven cents) for Mr Tnase;
22. Holds unanimously that the respondent States are to take all necessary measures to put an end to the arbitrary detention of the applicants still imprisoned and secure their immediate release;
23. Holds unanimously that the amounts indicated in points 20 and 21 above are to be converted into the national currency of the country of residence of each applicant, at the rate applicable on the date of settlement, and that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on them at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
24. Dismisses unanimously the remainder of the claim for just satisfaction.
Comment
One may note here various complex elements of the case. One is the responsibility of two states for human rights violations. The second is the fact that the Court itself collected evidence through on the spot investigation (para. 12), interviewing of 43 witnesses (para.13) and the examination of documentary evidence (para.16).
One may note the level of the claims as mentioned in§ 39, which amount to several million Euros. The European Court has consistently held that claims must be substantiated. That in itself leads generally to a restrictive application of remedies.
The African Commission has generally reached very concise conclusions as to remedies. One example is The Law Office of Ghazi Suleiman v. Sudan quoted earlier in this chapter. The Commission ‘Urges the Government of Sudan to bring its legislation in conformity with the African Charter ; Requests the Government of Sudan to duly compensate the victims.’
The Human Rights Committee has also generally formulated succinct recommendations as to reparations and actual remedies as in the case of Herrera Rubio v. Colombia (Communication No. 161/1983, Views of 2 November 1987) where it was concluded that
The Committee, accordingly, is of the view that the State party is under an obligation, in accordance with the provisions of article 2 of the Covenant, to take effective measures to remedy the violations that Mr. Herrera Rubio has suffered and further to investigate said violations, to take action thereon as appropriate and to take steps to ensure that similar violations do not occur in the future.
With respect to remedies, the Inter-American Court of Human Rights has, more than any other supervisory mechanism, sought effective remedies which include major components such as: restitution, other forms of reparations for the damage inflicted and measures to prevent reoccurrence. In the case below the complexity of the remedies is clear. The case concerns the forced disappearance of nineteen tradesmen (truck drivers, shop owners, etc.) who were robbed and killed and then dumped in a nearby river by paramilitary or auto-defence groups in 1987. The case deals, inter alia, with the destructive effect that the disappearances had on the families of the deceased. It also demonstrates the meaning of lack of effective remedies.
Nineteen Tradesmen v. Colombia
Inter-American Court of Human Rights
Series C No. 109
Judgement of 5 July 2004
Keywords: reparation &ndash restitution &ndash compensation
[?]
Considerations of the Court
a) Obligation to investigate the facts which have led to the human rights violations and identify and punish the perpetrators. [?]
262. As regards compliance with this obligation to investigate and punish, the Court has established that:
[?] inadmissible are decisions whereby amnesty is provided, whereby prescription is introduced or whereby immunity is provided with the intent to impede investigation or punishment of those responsible for serious violations of human rights such as torture, summary, extralegal or arbitrary executions and forced disappearances. Such decisions are all prohibited as contravening non-derogable rights recognised in the International Law of Human Rights.
263. In the light of earlier considerations, Colombia must mount effective investigations into the facts of the present case with the purpose to identify, judge and punish the actual and intellectual perpetrators of the violations committed against the 19 tradesmen [?].
It is necessary that the competent ordinary criminal courts have to investigate and sanction the members of the public enforcement agencies who were involved. Moreover the State must abstain from relapsing into measures such as amnesty, prescription or the exclusion from responsibility, as well as other measures which intend to impede the criminal persecution or the suppression of the effects of convictions. The process must focus on the facts and the legal implications thereof. Likewise, the family members of the victims must have full access and capacity to act or intervene in all the stages of such investigations, in accordance with the national law and the standards of the American Convention . Finally, the Court determines that the result of the process must be publicly circulated so that the Colombian society gets to know the truth of what has happened.
b) Obligation to seriously search the mortal remains of the victims.
270. La Court recognises that in the present case the absence of any handing over of the mortal remains to the family has caused and continues to cause great suffering, uncertainty and insecurity to the members of the families of the victims. On the other side, the Court considers to be proven that, after their death in 1987, the bodies of the victims were dismembered and dumped into the river “El Ermitaño”, which flows into the Magdalena river, opposite to the site of “Palo de Mango”. As a result of what happened to the bodies of the 19 tradesmen and of what has happened in the more then 16 years since their disappearance, it is most probable that the remains cannot be found anymore. Nevertheless, it has also been proven that Colombia never mounted a serious search for the remains of the victims, that the family members have approached various state authorities just after the disappearance and that those approached never provided help in the search. This omission on the part of the state at the time that it was still possible to find remains of the victims has led to the consequence that at this moment the localisation of the remains is a difficult and improbable task. Without prejudice to this situation, the state has declared that is has the obligation to take measures to try to locate the remains of the victims and hand these over the families.
271. On the basis of these considerations, the Court finds it just and reasonable to order Colombia to mount a serious search, with all possible means, in order to establish with certainty what happened with the remains of the victims and, in case that it would be possible to encounter remains, to hand these over to the families. The State must inform he Court of the actions undertaken, inclusive of what has been undertaken in the past, so that the Court, in its turn can evaluate the state’s compliance with this obligation.
c) Monument in memory of the victims
272. In the present case, some family members have requested that the State install a memorial tablet in order to commemorate the victims. Ms. Ofelia Sauza de Uribe, sister of victim Luis Domingo Sauza Suárez, asked, if it was not possible to hand over the remains of Luis Domingo so that he could be buried, that at least there would be a memorial plate or tablet to commemorate the disappeared.
273. The Court considers that the State must erect a monument in memory of the victims. This tribunal considers it necessary that the selection of the location for the erection of the monument is agreed upon between the state and the families of the victims. On that location, by means of a public ceremony and in the presence of the families, Colombia must install the memorial tablet with the names of the 19 tradesmen and mentioning explicitly that the installation was made in compliance with the reparation ordered by the Inter-American Court. This measure will also contribute to triggering awareness in order to prevent repetition of the damaging occurrences and in order to conserve the memories of the victims.
d) Public ceremony to recognise the international responsibility and to apologise to the families of the 19 tradesmen.
274. As it has determined in other cases, the Court considers it necessary, in order to repair the damage to the reputation and honour of the victims and their families and with the objective to prevent that such facts as in the present case reoccur, that the State organises a public ceremony whereby it recognises its responsibility under international law as to what has happened in this case and it apologises with respect to the 19 tradesmen. This ceremony has to take place in presence of the members of the families of the victims and of the highest authorities of the State. This ceremony could take place at the same time as the ceremony whereby the commemorative plate is erected in memory of the victims.
e) Provide medical treatment to the families of the victims.
[?]
278. In order to contribute to recuperation with respect to physical and psychological damage, the Court determines the responsibility of the State to provide without costs, through its specialised medical institutions, the medical and psychological treatment required for the members of the families of the victims, including medicines which they may need and taking into account that some of them have suffered from drug addiction and alcoholism [?].
295. Therefore, The Court, decides that:
unanimously,
1. the State violated the rights to personal liberty, to personal integrity and to life as laid down in the articles 7,5 and 4 of the American Convention on Human Rights , in conjunction with article 1.1 of the Convention, against [the 19 tradesmen]
by six votes to one,
2. the State violated the rights to judicial protection as laid down in articles 8.1 and 25 of the American Convention on Human Rights in conjunction with article 1.1 of the Convention, against [the 19 tradesmen] Partial dissenting opinion of Judge Medina Quiroga.
AND HOLDS THAT:
unanimously,
5. the State must, within a reasonable time, effectively investigate what has happened in the present case with the purpose to identify, judge and punish the material and intellectual perpetrators of the violations which were committed against the 19 tradesmen, in order to lead to the penal and possible other effects of the investigation, and to publicise the results of this process [ ?]
unanimously,
6. the State must undertake, within a reasonable time, a serious search with all possible means to establish with certainty what has happened with the remains of the victims and, in case that such would be possible, to hand over the remains of the victims to their families [?]
unanimously,
7. the State must erect a monument in commemoration of the victims and by means of a public ceremony, in presence of the families of the victims, must unveil a commemorative tablet with the names of the 19 tradesmen [?]
unanimously,
8. the State must hold a public meeting whereby it recognises its responsibility under international law with respect to what has happened in the present case and whereby it apologises in memory of the 19 tradesmen, in the presence of the families of the victims. In the meeting will also participate the highest state authorities as stipulated in paragraph 274 of the present judgement.
unanimously,
9. the State must, free of costs, through its specialised health institutions, provide for the required medical and psychological treatment to the members of the families of the victims as stipulated in paragraphs 277 and 278 of the present judgement.
unanimously,
10. the State must establish the necessary conditions to enable the members of the family of victim Antonio Antonio Flórez Contreras, who live in exile, to return to Colombia, and, if they wish so, cover the cost of transfer [?]
unanimously,
11. the State must procure the guarantees to life, integrity and security of the persons that have served as witness before the Court and their families, and must provide them with the necessary protection against whichever persons, taking into account the circumstances of the present case [?]
unanimously,
12. the State must pay the an amount of US$ 55.000,00 (fifty five thousands United States dollars) or its equivalent in Colombian currency to compensate for the incomes for each of the 19 victims [?]
unanimously,
14. the State must pay the amount of US$ 80.000,00 to compensate for non-pecuniary damage for each of the 19 victims in accordance with paragraphs 230, 231, 235, 233, 234, 250, 251 y 252 of the present judgement.
unanimously,
15. the State must by way of compensation for the non-pecuniary damage suffered by the families of the victims:
a) the amount of US$ 50.000,00 to each of the children of the victims [?];
b) the amount of US$ 80.000,00, to each of the spouses of partners of the victims [?] ;
c) the amount of US$ 50.000,00 to each of the parents of the victims [?]; and
d) the amount of US$ 8.500,00 to each of the brothers and sisters of the victims [?].
unanimously,
16. the State must pay in terms of costs and expenses to the Colombian Commission of Jurists the amount of US$ 10.000,00, and to the Centre for Justice and International Law (CEJIL) the amount of US$ 3.000,00 [?].
unanimously,
23. shall supervise the compliance with the present judgement and shall consider the present case completed once the State has complied with all that has been held and decided. Within the period of one year, as from the date of notification of this judgement, the State shall provide the Court with a report on the measures undertaken in compliance to and in accordance with the conditions as laid down in this judgement.
Comment
The present case shows the enormous variety of measures that deserve attention when deciding on remedies. The Inter-American Court devoted more than 30 pages of the judgement of 140 pages to the details of the actual remedies adjudged. No other international supervisory mechanism has expended so much effort to refine and define remedies for violations, thereby focusing above all on the victims and on prevention. As this case shows clearly, restitutio in integrum is not always possible, notably when the victims are killed.
The Inter-American Court has, on several occasion, opposed and prohibited any measures whereby the perpetrators could evade punishment, through amnesty, through prescription or by any other means (see, e.g. Mack Chang v. Guatemala , Series C No. 101, Judgement of 25 November 2003; Caracazo v. Venezuela , Series C No.95, Judgement of 29 August 2002; and Trujillo Oroza v. Bolivia , Series C No. 92, Judgement of 27 February 2002). Latin America has seen, in the transition from dictatorships to democracies, many occasions whereby blanket measures were taken to provide amnesty or evasion of justice for the perpetrators. In 2002 to 2004 several national supreme courts unravelled parts of such blanket amnesty measures, including prescription.
One may note that, unlike in the European system, non-governmental organisations with a role in the promotion of human rights, such as the abovementioned Colombian Commission of Jurists and above all CEJIL, play an important role in the litigation. CEJIL is involved in the majority of cases and is presently crucial for the functioning of the Inter-American Court of Human Rights.