Article 41 of the European Convention for Human Rights in the jurisprudence of the European Court of Human Rights

Analysis of Slavica Cubric in the judgments of the European Court of Human Rights “Arsovski v. The former Yugoslav Republic of Macedonia” (No. 302016/06) and “Stojanovski and Others v. The former Yugoslav Republic of Macedonia” (No. 14174/09).

Article 41 of the European Convention for Human Rights stipulates that “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.” The time-limits and other formal requirements for lodging claims for just satisfaction are prescribed in rule 60 of the Rules of the European Court of Human Rights (ECHR)[1]. In addition, other practical information concerning Article 41 can be consulted in the Practice Directions for Just Satisfaction claims.[2]
The true meaning and scope of application of Article 41 of the Convention cannot be determined by simple reading of Article 41 of the Convention. The meaning of Article 41 is more precisely determined with the developments of the case-law of ECHR. According to that case-law, namely, the applicants can ask, and if certain criteria are met, ECHR can award for compensation of costs and expenses, non-pecuniary and pecuniary damage.
This analysis is specially focused on the way ECHR defines the notion of pecuniary damage. If it is possible, the applicant should be placed, in the position in which he or she would have been had the violation found not taken place (restitutio in integrum), and the Court can take into consideration compensation for both loss actually suffered (damnum emergens) and loss, or diminished gain, to be expected in the future (lucrum cessans).[3] The applicant should show that pecuniary damage has resulted from the violation or violations alleged and submit relevant documents to prove, not only the existence but also the amount or value of the damage.[4]. The basis on which the Court proceeds depends on the nature of the breaches found, and illegal and arbitrary dispossessions of property in principle justify restitutio in integrum while in the event of non-restitution, payment of the up-to-date full value of the property[5]. Ifone or more heads of damage cannot be calculated precisely, the Court may decide to make a globalassessment and in so doing it can have recourse to equitable considerations.[6]
In most of the Macedonian cases the claims for compensation of pecuniary damage have been dismissed by ECHR. The reasons for that are connected to the nature of the violations found, but also perhaps to the insufficient knowledge of the case-law, in particular as concerns appropriate evidence. One of the rare exceptions is the case Andonoski[7]which concerns confiscation of a vehicle which was found to be in breach of Article 1 of Protocol no.1. The applicant, a taxi driver, asked compensation of non-pecuniary and pecuniary damages (value of the car and loss of income). The Court decided that the State should return to the applicant the confiscated car in the state at the time of the confiscation, and if such restoration is impossible, the Court considered it appropriate to pay the applicant 10,000 EUR. 
The case-law of the Strasbourg Court in Macedonian cases as concerns pecuniary damages has been further developed on 7 February 2019 when ECHR delivered two judgments under Article 41. The judgments concern two different cases in which the Court delineates a number of conclusions which are very useful for a better understanding of the approach ECHR has in awarding pecuniary damage and the evidence that should be submitted. What is specific in both cases is that the violation of the Convention is established in principal judgments, while there is a separate judgment concerning just satisfaction.
Arsovski
The events that led to the application of ECHR are of such nature that is practically impossible in this limited space to fully elaborate the legal labyrinth that the applicants had to tackle. Very simply and shortly put, there was mineral water on the plot of land in question, while the State was recorded in the land registry, in error, as the owner. The State gave the plot under concession to a private company, but with final court judgment of 2002 it was established that the plot of land is property of the applicants. The company asked the State to expropriate the plot of land and a decision to expropriate it was rendered. The said decision was upheld by the Supreme Court in November 2015, which considered that the expropriation had been in the public interest, namely with a view to the construction of objects for research into and the exploitation of natural resources and that compensation had been determined in non-contentious proceedings. The amount of compensation was determined with a decision (upheld in September 2005) and set in amount of 880 EUR, while the applicants were ordered to pay 475 EUR for the costs incurred by the company. The applicants lodged an application before the Strasbourg Court in 2006, while the principal judgment in the case was delivered in 2013[8], when the Court found a violation of Article 1 of Protocol no.1 because expropriation of the applicants’ land made them bear a burden which was excessive and disproportionate. In its reasoning ECHR noted the successive failings of the domestic organs, one of them being the fact that they did not take into consideration the specifics of the property, namely, the existence of mineral water, when calculating the amount of compensation
The Court awarded the applicants non-pecuniary damages, while it considered that the application of Article 41 of the Convention was not ready for decision with regard to pecuniary damage, and invited the Government and the applicants to submit, within three months written observations to notify the Court of any agreement they might reach. Given that the parties failed to reach an agreement ECHR rendered a judgment concerning just satisfaction in 2019.[9]As regards the possibility of restitutio in integrum, the parties presented contradictory arguments as to whether the land could be restored into the applicants’ possession. The Court considered that in the given case it could not proceed on the basis of the principle of restitutio in integrum and rejected the applicants’ claim for restoration of the land into their possession. Consequently, according to ECHR, there was no basis on which the applicants could claim any compensation for loss of enjoyment of the land since the expropriation.
As concerns lost income the applicants claimed 14% of the profits the concessionaire had earned from the sale of the mineral water extracted from the land, and the lost rent which they would have obtained if they had leased the land. Concerning the first head, the Court noted that that it was not presented with any examples of domestic law and practice, or any other relevant material, to demonstrate that private landlords enjoyed such an entitlement with regard to the exploitation of mineral water or any other mineral resources and that similarly such evidence was not presented as concerns the particular share of the profits. As concerns the lost rent, the applicants referred to a public announcement for the lease of a buffet bar in a court building in Skopje, the Court held that the two properties were different in nature and that rental agreements could not be compared.
Hence, the Court considered that “the closest possible situation to that which would have existed if the breach in question had not occurred” was only the payment of appropriate compensation which should have been awarded at the time of the expropriation”. ECHR reiterated that the domestic authorities failed to consider that there is mineral water on the plot when determining the amount of compensation. 
The Court further observed that the applicants did not submit their own expert valuation of the land that would take the existence of the mineral water into account for the calculation of its value. They referred to an online auction on eBay of seemingly similar land in Serbia and ECHR concluded that that it concerned land in a different State and the absence of any information about the size and nature of the land, as well as the outcome of the alleged sale, it found any reference to it to be inappropriate.
The documents submitted by the Government were also not sufficient for ECHR to rely on them, as they concerned only one example of domestic practice, even though they referred to a case similar to the applicants’ case. Therefore, ECHR ruled on the basis of equitable considerations and awarded the applicants jointly a lump sum of 15,000 EUR.
Stojanovski and others
The case Stojanovski and others[10]concerns restitution proceedings in which the applicants’ restitution claim was dismissed. The application to the Strasbourg Court was lodged in 2009, while the principal judgment was delivered in 2014 in which ECHR found a breach of Article 1 of Protocol No. 1. The breach was established because the applicants’ restitution claim was dismissed with summary reasons, without any specific reference to their complaints, the relevant domestic courts’ case-law, or any domestic authorities’ practice. ECHR observed that such decision-making was in breach of the principle of lawfulness. As concerns Article 41, just as in Arsovski, it awarded the applicants non-pecuniary damages, while it considered that the application of Article 41 of the Convention was not ready for decision with regard to pecuniary damage, and invited the Government and the applicants to submit, within three months written observations to notify the Court of any agreement they might reach, which was not the case.
In the judgment concerning just satisfaction[11], ECHR invoked the principal judgment in which a breach of the principle of lawfulness was established. Consequently, in accordance with the case-law concerning Article 41 restitutio in integrum would be justified. Nonetheless, the applicants did not did not request restitution of the plot and such restitution was impossible and therefore in the case in question, reparation for pecuniary damage must result in the closest possible situation to that which would have existed if the was no breach. ECHR considered that in the circumstance there were two ways to achieve that, namely, transferring another similar land in the applicants’ possession or the payment of monetary compensation, which should correspond to the current market value of the property.
As concerns awarding ownership of another property, the Court did not accept the Government’s argument that the applicants should request reopening of the restitution proceedings because it was not clear whether that remedy was available given the time which elapsed since the date when the judgment became final and was served on the applicants (in 2008) and the time-limits and provisions governing reopening of proceedings.  ECHR therefore decided that the State was to transfer into the applicants’ possession another land in the same area which has characteristics and a value that are as close as possible to the property concerned and the value of the State bonds (724,500 denars) to be deducted from the value. If the State was not able to do that, ECHR ruled that it should to pay the applicants the market value of plot. None of the parties submitted expert reports on the basis of which the market value could be established and the other evidence they submitted was not sufficient and appropriate. Following its well-established case-law ECHR rules on equitable basis and awarded the applicants jointly 190,000 EUR.
Conclusions
Given the workload of ECHR and depending on the type of the case the proceedings before it can be lengthy. In most the cases, ECHR decides in the same time whether there is a violation of the Convention and on just satisfaction. In some cases it decides on just satisfaction in separate judgment which further affects the length of the proceedings. In the cases analysed here, from the moment of submitting an application to the delivery of the principle judgments seven (Arsovski) and five years (Stojanovski and others) have passed, while until the delivery of the judgment on just satisfaction thirteen (Arsovski) and ten years (Stojanovski and others) have passed. The relevant ECHR case-law, rule 60 of the Rules of Court and ECHR’s Practice Directions on just satisfaction should be studied when submitting just satisfaction claims. Every claim must be reasoned and appropriate and concrete evidence related to the violation found and the basis for compensation should be submitted. The way in which the Court proceeds when ruling on equitable considerations is a question that can be studied through a more thorough research and analysis.


[1] Rules of Court, https://echr.coe.int/Documents/Rules_Court_ENG.pdf
[2] Practice Directions for Just Satisfaction claims, https://www.echr.coe.int/documents/pd_satisfaction_claims_eng.pdf
[3] Idem
[4]Idem
[5]Brumărescu v. Romania (justs atisfaction) [GC], no. 28342/95, ECHR 2001-I
[6]Former King of Greece and Others v. Greece[GC] (just satisfaction), no. 25701/94, 28 November 2002
[7]Andonoski v. the former Yugoslav Republic of Macedonia, no. 16225/08, 17 September 2015
[8]Arsovski v. the former Yugoslav Republic of Macedonia, no. 30206/06, 15 January 2013
[9]Arsovski v. the former Yugoslav Republic of Macedonia(just satisfaction), no. 30206/06, 7 February 2019.
[10]Stojanovski and others v. the former Yugoslav Republic of Macedonia, no. 14174/09, 23 October 2014
[11]Stojanovski and others v. the former Yugoslav Republic of Macedonia (just satisfaction),  no. 14174/09, 7 February 2019