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RESEARCH PRODUCT

Les mutations de la satisfaction équitable à l'aune de la jurisprudence de la Cour européenne des droits de l'Homme

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Equitable satisfaction was governed by Article 50 of the European Convention on Human Rights (ECHR) until the drafting of Protocol 11, which led to Article 41 governing the regime of fair compensation. Section 41 then reads: « 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 principle of indemnisation derives from international law cases which constraints the State failing to fulfil its international commitments to remove retroactively the consequences of the violation. In public international law, this principle normally applies to disputes between States. However, in a regional mechanism for the protection of human rights, between States and individuals, State responsibility will be adapted to the particularities of the European mechanism.In accordance with Article 41, the remedy must first be subsidiary in order to place the appellant in the situation he was in before the violation of his rights, deleting, as much as possible, or, at least, reducing, the consequences of the violation of his rights. Satisfaction will arise if the domestic law of the State concerned makes it possible to remove only imperfectly the consequences of the violation. However, the Court shall, on a discretionary basis, determine the appropriateness of recourse to an alternative remedy or to a pecuniary remedy.The European court will lay the foundations for a redress mechanism by identifying the conditions under which the claimant can be compensated. These are the three classic conditions of personal, direct and certain character of injury. In addition, the Court will identify the compensation posts which may be invoked by the applicant, through the material damage, the moral damage, the loss of chance and the costs and expenses incurred by the applicant. However, the criteria thus defined will be assessed on a discretionary basis by the Court, which will apply them purely casuistically. In doing so, the European Court will apply these conditions with some flexibility. At the same time, the Court will show a real inconsistency in the determination of amounts awarded in respect of monetary compensation. The flexibility of the criteria for compensation as well as the financial generosity of the Court will create an appeal for the applicants and their advice, which will be increasingly tempted by a purely indemnitic European remedy. It is a veritable phenomenon of mercantilization of remedies that will be triggered. The Court’s values and satisfaction mechanism will be reversed. Initially, following the finding of a violation, fair satisfaction allowed to erase the consequences and thus to complete the European mechanism for the protection of human rights. From now on, the violation is only a means to obtain a higher compensation than would have been granted at national level.To remedy this situation, the Court must act upon two levers. On a case law ,the Court must establish a consistent, transparent and consistent practice of redress, using its own judment . Clearly determining the conditions and the repairs granted will allow a containment of the influx of mercantile remedies. In terms of alternative remedies, the Court must adapt its procedures for handling cases and turn to the Committee of Ministers to promote alternatives to monetary remedies. However, in the context of the Court’s reforms, subsidiarity should not be a pretext for reducing the Court’s powers, since equitable satisfaction must retain its full protective dimension for the applicants.