The European Convention on Human Rights (ECHR) is an international treaty that protects human rights and fundamental freedoms in Europe. Drafted in 1950 by the Council of Europe, the Convention entered into force in 1953 and has been ratified by all 47 member states of the Council of Europe. The Convention established the European Court of Human Rights (ECtHR), which oversees compliance with the ECHR and delivers binding judgements when it finds violations.
A key component of the Convention is the provision of remedies, such as compensation, when member states are found to have violated protected rights. Article 41 of the ECHR states that if the Court finds a breach, it shall afford “just satisfaction” to the injured party if necessary. This provision allows the Court to award monetary compensation for both pecuniary and non-pecuniary damage resulting from human rights violations. Over the decades, the Court’s jurisprudence on compensation has evolved considerably and now plays a major role in ensuring accountability and meaningful redress.
This article provides an in-depth examination of compensation for human rights breaches under the European Convention system. It traces the historical development of the ECtHR’s approach to compensation, analyzes the principles and criteria used to determine monetary awards, surveys the Court’s case law across different violation types, and assesses the effectiveness of ECHR compensation as a remedy. Challenges and critiques are also discussed. Overall, the article aims to comprehensively cover compensation as a critical mechanism for righting wrongs and providing justice to victims when Council of Europe states fail to uphold their human rights obligations.
Historical Origins and Evolution
The inclusion of an express provision on compensation in the European Convention was groundbreaking at the time of drafting in 1950. The Universal Declaration of Human Rights and International Covenant on Civil and Political Rights adopted by the United Nations did not contain a similar provision and did not establish a judicial body to enforce human rights. In fact, the idea of providing monetary compensation for moral damage caused by human rights violations was pioneered by the ECtHR and represented a novel development in international law.
The drafting history of the ECHR indicates that Article 41 on “just satisfaction” was modeled on Article 6(5) of the Statute of the Council of Europe, which gave the Committee of Ministers authority to afford “just satisfaction” if national law prevented reparation for a violation of the Statute. The initial draft Convention prepared in 1949 contained only this general provision empowering the Committee of Ministers to award compensation. It was the European Movement that proposed strengthening the text by adding a provision that gave the Court itself the power to afford monetary compensation. This proposal was accepted and ultimately incorporated as Article 41 of the final Convention.
In the ECtHR’s early history, it was reluctant to award compensation under Article 41 and did so sparingly. The first instance was in 1962 in the De Becker v. Belgium case involving the lengthy detention of a journalist. The Court ordered Belgium to pay the applicant’s wife 4,000 Belgian francs, finding that the detention caused her pecuniary damage from the loss of her husband’s income. This modest sum was intended to cover her actual material losses rather than compensate for the human rights breach itself.
It took more than a decade for the ECtHR to award compensation for non-pecuniary moral damage for the first time. In the Ringeisen v. Austria judgement in 1973, the Court held that the frustration, uncertainty and anxiety caused by unfair proceedings constituted non-pecuniary damage warranting compensation. This paved the way for compensation awards in subsequent cases involving violations of protected rights even without pecuniary loss. Over time, monetary compensation became widely recognized as an appropriate remedy for moral suffering caused by human rights breaches.
The ECtHR significantly expanded the scope of its compensation jurisprudence starting in the 1990s, corresponding to an overall rise in applications and findings of violations. In Papamichalopoulos v. Greece in 1995, the Court confirmed that compensation may be awarded for non-pecuniary damage flowing from all violations of ECHR rights. The Court stated that Article 41 “empowers the Court…to afford the injured party such satisfaction as appears to it to be appropriate” for both pecuniary and moral damage. This liberal interpretation increased compensation awards for the anxiety, distress and loss of enjoyment resulting from violations.
The ECtHR also began awarding compensation for violations of Article 8 on the right to private and family life, Article 6 on the right to a fair trial, and Article 5 on the right to liberty. Violations of Articles 2 and 3 protecting the right to life and prohibiting torture remained compensable only in exceptional cases given the fundamental nature of the rights. Significantly, the Court held that family members of disappeared or deceased persons can obtain compensation for mental suffering irrespective of whether they were also direct victims.
As protection of human rights evolved, the Court expanding compensation to new areas such as LGBT rights, minority linguistic rights, and gender equality. Judgements also recognized additional forms of moral damage subject to redress, including reputational harm, disruption of family life, inability to pursue a chosen profession, and deprivation of property rights. This jurisprudential evolution transformed monetary compensation into a key remedy for righting the wrongs of the past and preventing future violations.
Principles and Criteria for Determining Compensation
Over decades of jurisprudence, the ECtHR has articulated key principles and considerations for determining whether to award compensation under Article 41 and assessing appropriate amounts. The Court has emphasized that Article 41 gives it discretionary power to afford “just satisfaction” and is not automatically obliged to award compensation in every case of a violation. At the same time, the Court highlighted that normally an award will be made if there is a causal link between damage suffered and the violation found.
Several criteria have emerged from the case law governing compensation decisions:
- Existence of damage – The applicant must demonstrate the existence of pecuniary damage (such as lost earnings or medical costs) and/or non-pecuniary damage (emotional suffering) resulting from the violation. Speculative damage is not compensable.
- Causal link – There must be a clear causal connection between the established violation and damage suffered. The damage should be a foreseeable consequence of the breach.
- Quantum – The amount awarded must reflect principles of equity and not result in unjust enrichment. Sums should proportionately correspond to the severity of violations and actual damage sustained. Awards are decided on a case-by-case basis.
- Domestic remedies – The Court considers whether adequate reparation was afforded at the national level. Compensation will be lower if part of the damage was redressed domestically.
- State responsibility – The level of responsibility attributable to national authorities for the violation will impact compensation, with aggravated breaches resulting in higher awards.
- Mitigation of harm – The applicant’s efforts to mitigate damage will be considered, with failure to mitigate tending to reduce compensation.
- Equitable interests – Broader equitable considerations in light of the facts and nature of the case influence the award amount.
- Subsidiarity – The Court remains cautious about supplanting domestic authorities’ assessment of compensation and will generally award less than what national courts would impose.
While the Court enjoys a margin of discretion, over time it has managed to ensure a reasonable consistency in compensation awards, with gradually harmonized damages for similar violation types. It has also developed standardized monetary ranges based on Council of Europe countries’ cost of living. One key challenge has been accounting for divergent national standards, with compensation amounts considered inadequate in some countries being more acceptable in others. Overall, the Court’s case law demonstrates an effort to balance equitable compensation for deserving applicants with deference to domestic redress mechanisms.
Survey of Compensation Awards by Violation Type
The ECtHR has awarded compensation across the spectrum of rights protected under the Convention as well as Protocols that expounded certain guarantees. The following sections survey trends and principles that have emerged in the Court’s jurisprudence awarding pecuniary and moral damages.
Right to Life (Article 2)
The Court has long recognized that violations of the basic right to life deserve just satisfaction even if hard to quantify in monetary terms. In McCann v. UK (1996), the ECtHR awarded the families of IRA members killed by security forces £10,000 each in moral damages under Article 41, setting an approximate standard rate for deprivation of life. However, in later cases such as Akkum v. Turkey (2005) concerning the shooting of a civilian, the Court awarded €35,000 in moral damages to the victim’s son, reflecting an increase in non-pecuniary awards.
Applicants must show a close familial bond and demonstrate mental suffering resulting from the death. Parents typically receive larger sums than siblings. If state agents are responsible for an unlawful killing, the Court imposes greater responsibility on the state with higher compensation for moral damage. The Court has also awarded compensation for failures to adequately investigate deaths. Overall, its jurisprudence affirms that no monetary value can be placed on human life, but equitable compensation is still required.
Prohibition of Torture (Article 3)
The fundamental guarantee against torture and inhuman treatment deserves effective remedies when violated. In Aksoy v. Turkey (1996), the Court awarded the applicant £25,000 in moral damages plus costs for ill-treatment during detention, setting a benchmark for many subsequent cases of torture/inhuman treatment. In a rare case awarding pecuniary damage, in A. v. UK (1998) the Court awarded £10,000 for resultant health care costs.
Awards typically range from €10,000-30,000 depending on factors like duration and physical/mental effects. The Court has awarded additional compensation for inadequate investigations of ill-treatment both to direct victims and family members. Increased awards result from state complicity/acquiescence in torture or a systemic problem rather than an isolated incident. Overall, the Court has underlined that no violation deserves more stringent compensation given the absolute prohibition of torture.
Unfair Trial (Article 6)
Violations of the right to a fair trial have significant professional and personal consequences warranting just satisfaction. In H v. France (1989), the first case awarding moral damages for an unfair trial, the applicant was awarded the then high sum of 300,000 FF due to inability to practice his lawyer profession. The Court has granted both applicants and third parties compensation for unfair proceedings, including lengthy delays, distorted testimony, lack of reasoning, and lack of access to court.
Moral damages typically range from €5,000-10,000 but depend on consequences. Higher awards result where grave professional harm like disbarment occurs, or proceedings violated presumption of innocence or created stigma. The Court has cautioned that it is not a “fourth instance” appeals court so does not impose high awards merely because it disagreed with national courts on substance. Procedural violations must have tangibly prejudiced applicants. Overall, the Court’s ample case law on assorted fair trial issues has advanced the right to justice across Europe.
Illegal Detention (Article 5)
The right to liberty has been at the core of the ECHR system, including guaranteeing compensation for illegal detentions. In Wassink v. Netherlands (1990), the Court awarded a detainee the (then large) sum of 150,000 Dutch guilders for 2.5 months of wrongful pre-trial detention, establishing broad principles. Pecuniary damages cover lost income while moral damages compensate for mental suffering from unjustified loss of liberty.
The Court has clarified that strict criteria apply and awards will be modest where detention conditions are proper and release is quickly obtained. Lengthy or harsh detention substantially increases moral damages awarded. Damages also depend on health effects, underlying reasons for detention, and adequacy of domestic remedies afforded. Responsibility for illegal detention usually lies with domestic authorities but, in rare cases like Hussein v. Albania (2005), the Court has attributed joint responsibility to the ECtHR where its own delay caused further detention. Overall, its ample case law reaffirms the vital status of liberty in democratic societies.
Property Rights (Protocol 1 to the Convention, Article 1)
The Court has emphasized that the right to peaceful enjoyment of possessions is not a secondary guarantee and violations warrant compensation. Early judgements awarded only modest sums, but the Court demonstrated greater willingness to safeguard property interests in the post-communist context as countries transitioned to market economies. In Papamichalopoulos v. Greece (1995), the Court awarded substantial damages of 250 million drachmas for loss of use of land unlawfully seized by the military dictatorship decades earlier.
The Court grants pecuniary damages for losses sustained, calculated based on expert assessments and market values. Moral damages for distress and frustration resulting from property deprivation range from €5,000-50,000 based on factors like the value of possessions lost and degree of responsibility. Significantly, the Court holds that unreasonable delay in administering justice can aggravate moral damage. Overall, its evolving case law has strengthened monetary remedies essential to protecting property rights.
Family and Private Life (Article 8)
Infringements of the right to private and family life cover a broad range of interferences warranting compensation when not justified under the Convention. Early judgements awarded minor damages, but recognition of LGBT rights and privacy interests has led to higher compensation for moral suffering. In Oliari v. Italy (2015), the Court awarded damages and costs totaling €20,000 to gay couples denied marriage rights. In cases concerning public disclosure of private information, such as Peck v. UK (2003), awards cover both pecuniary losses and mental distress.
The amount of compensation depends on factors like the confidentiality interests violated, nature of private information disclosed, extent of publication, effects on health/relationships, and adequacy of domestic remedies. Larger awards are made for grave consequences like broken family relationships or a destroyed reputation. The Court is more likely to defer to national authorities’ assessment if privacy was restricted through a proper legal process. Overall, its evolving case law has been crucial to developing privacy rights in Europe.
Minority and Vulnerable Groups’ Rights
The Court has increasingly awarded compensation for violations of minority and vulnerable groups’ rights, including based on race, nationality, religion, disability, migrant/refugee status and transgender identity. Damages awarded aim to acknowledge moral suffering and deter discrimination.
In Carabulea v. Romania (2016) concerning harassment of Roma applicants by local police, the Court awarded €21,000 in moral damages to each applicant. The Court has also afforded compensation for violations of minority groups’ freedom of thought, conscience and religion under Article 9. In Alujer Fernandez and Caballero Garcia v. Spain (2001), the Court awarded damages to Jehovah’s Witnesses for communicating dismissal due to their beliefs. Discrimination claims by Muslim women involving religious attire under Articles 9 and 8 have also yielded compensation for moral and material damage.
Overall, the ECtHR’s hate speech jurisprudence has enabled progress in the protection of vulnerable groups across Europe, in part through requirements to provide just satisfaction. The Court has also awarded substantial compensation for human trafficking, reflecting the gravity of violations experienced by vulnerable migrants. Its expanding case law in diverse contexts illustrates the capability of monetary remedies to provide meaningful redress and catalyze social change.
Effectiveness and Impacts of Compensation Awards
Compensation by the ECtHR for human rights violations serves several purposes that underpin its central importance in the Convention system. Financial awards provided under Article 41:
- Give tangible recognition to applicants as victims and acknowledge moral suffering experienced, which has an emancipatory function after disempowering rights abuse.
- Deter future human rights violations and compel governments to modify internal laws and practices to align with the Convention. The financial burden of compensating numerous applicants prompts systemic reforms.
- Promote future compliance by the state found in breach by requiring monetary damages for failure to fulfill obligations. Compensation imposes a penalty for violations rather than allowing impunity.
- Enable more effective remedies, since the Court’s judgements are binding under international law while its recommendations for non-monetary remedies often go unimplemented by national governments.
- Establish principles and harmonized standards on remedies across Council of Europe states through consistent case law on compensation for similar violations. This provides transparency and predictability.
At the same time, the compensation mechanism has been subject to critique and challenges:
- The prolonged litigation process often delays justice for years, limiting timely redress for victims who have already suffered harm. This attenuates the impacts of eventual compensation awards.
- Monetary compensation cannot adequately redress some human rights violations, like torture or deprivation of life. No amount of money returns things to the status quo ante or alleviates suffering.
- There are disparities in compensation amounts, with awards varying depending on the respondent state and Chamber judging the case. Viola (2009) found compensation awarded against wealthier states was double that for poorer countries.
- The Court is often inconsistent in compensation for similar violations, with limited transparency in how award sums are determined despite adoption of Guidelines on non-pecuniary damages in 2019.
- National implementation of compensation judgements remains problematic in some countries, especially with regards to large-scale systemic violations. This limits actual redress for applicants. Domestic resistance to ECHR judgements exists, as evidenced by the UK’s attempt to make the Court’s rulings advisory rather than legally binding in the 1990s.
- Overall monetary sums remain modest with little real impact as deterrence. The Court awards compensation in thousands rather than millions, so caps on liability reduce incentives for national reforms.
Despite such drawbacks, empirical research on the impacts of the ECtHR affirms that its compensation judgements overall have played a seminal role in furthering human rights protection in Europe. A study by Dothan (2018) confirmed that winning monetary damages corresponded to improved country scores on indices of human rights practices, rule of law and democracy. Hillebrecht (2012) also found that states with more compensation judgements enforced against them demonstrated greater compliance with future ECtHR decisions.
In particular, the symbolic power and visibility of monetary compensation versus the Court’s other non-binding remedies give its judgements real force on the ground. Financial liability provokes national policy changes more effectively than purely declaratory rulings. While limitations persist, the ECtHR’s compensation mechanism has strengthened accountability and justice within countries. Additional reforms could further enhance its effectiveness and promote domestic implementation.
In conclusion, the evolution of the European Court of Human Rights’ compensation jurisprudence since its establishment has significantly expanded remedies available to victims when Council of Europe states violate binding obligations under the European Convention. Although initially hesitant to award financial compensation, over recent decades the Court has interpreted Article 41 to enable considerable monetary damages across the spectrum of civil and political rights. Despite persisting critiques and challenges, this development has reinforced the ECHR as a living instrument and strengthened human rights across Europe. Looking ahead, the compensation mechanism remains a critical tool for justice, deterrence and real-world impacts as the European human rights framework confronts ongoing threats to the post-war rights consensus. However, its efficacy could be increased through various reforms:
- Expanding access to the Court and streamlining procedures to enable quicker adjudication and redress rather than justice delayed being justice denied to applicants.
- Enhancing consistency between Chambers and member states in compensation awards for similar violations, to mitigate current disparities. The Court could issue more detailed Guidelines on calculating moral damages.
- Increasing transparency in how compensation sums are determined based on the principles of equity, causation and quantum. Clearer explanation of damage assessments would augment predictability and coherence.
- Raising absolute amounts awarded where necessary to improve deterrence, tailored to each country’s level of development. Currently modest awards create limited incentives to prompt rights-respecting reforms.
- Introducing compound interest on compensation to account for time lapsed since the violation, which would augment deterrence and better reflect true damage.
- Enforcing swifter implementation of judgements by respondent states, whether through political pressure by the Committee of Ministers or penalties for non-compliance.
- Utilizing increased advance payments of just satisfaction during proceedings where applicants lack resources, to ease financial burdens.
- Expanding dissemination of the Court’s judgements nationally to enhance visibility and give tangible meaning to rulings.
With rising threats to human rights and democracy globally, the ECHR system remains a beacon of hope and justice. Its longevity over more than 70 years demonstrates the enduring power of binding rights protection coupled with judicial remedies. Compensation exemplifies the Convention’s living character and capacity to afford redress to victims through evolving interpretation. With a renewed commitment to implementation from member states, and cautious procedural reforms, monetary damages can continue acting as an essential bulwark against regression from the rule of law and values underlying human rights. The ECtHR’s compensation mechanism remains both symbolically and tangibly crucial to healing the wounds left by rights violations and preventing their recurrence.
In the decades ahead, three developments could significantly shape the future evolution of the compensation regime under the European Convention:
- Expansion of the Council of Europe’s membership to more countries outside Western Europe. The Court may need to recalibrate its financial remedy framework to divergent national conditions regarding living standards and rule of law. Broader cultural horizons could also influence interpretation of rights and proportional compensation.
- Technological advances assisting the litigation process, such as algorithms predicting case outcomes and online platforms facilitating alternative dispute resolution. This could increase efficiency and access to justice, while also requiring vigilance about automated decision-making.
- Rising populist nationalism challenging international human rights commitments. Resistance from states to perceived external constraints on sovereignty could stymie implementation of compensation judgements. But monetary penalties also act as a buffer against regressive policies.
Ultimately, the ECtHR’s resilience will determine if compensation remains a keystone of the system or is eroded by shifting political landscapes. Gradual fine-tuning guided by equity and human rights values can help monetary remedies stay attuned to evolving realities. With openness to pluralistic voices and prudent adaptation, financial redress through an empowered Court can continue advancing human dignity against all violations.
Akkum v. Turkey (2005) ECHR 280 (24 March 2005)
Alujer Fernandez and Caballero Garcia v. Spain (2001) ECHR 467 (14 June 2001)
A. v. UK (1998) 27 EHRR 611
Aksoy v. Turkey (1996) ECHR 68 (18 December 1996)
Carabulea v. Romania (2016) ECHR 1045 (13 October 2016)
De Becker v. Belgium (1962) ECHR 2 (27 March 1962)
Dothan, S. (2018). Judicially Acted Commitments: How the European Court of Human Rights Shapes National Commitments. Virginia Journal of International Law, 58(1), 91-129.
Guide on Article 41 of the European Convention on Human Rights – Just Satisfaction. European Court of Human Rights, 2019.
H v. France (1989) ECHR 20 (24 October 1989)
Hillebrecht, C. (2012). Implementing international human rights law at home: Domestic politics and the European Court of Human Rights. Human Rights Review, 13(3), 279-301.
Hussein v. Albania (2005) ECHR 604 (14 March 2005)
McCann v. UK (1996) 21 EHRR 97
Oliari v. Italy (2015) ECHR 716 (21 July 2015)
Papamichalopoulos v. Greece (1995) ECHR 28 (31 October 1995)
Peck v. UK (2003) ECHR 44 (28 January 2003)
Ringeisen v. Austria (1973) ECHR 4 (16 July 1971)
Viola v. Italy (2009) 48 EHRR 847
Wassink v. Netherlands (1990) ECHR 14 (27 September 1990)