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universul juridic magazin

New aspects of the application of articles 41 and 46 of the Convention in the case law of the European Court of Human Rights

Over a long period, more specifically until the period in the 2000s, the European Court of Human Rights had not set up a relation between the provisions of article 41 and those provided by article 46 of the Convention in its case law, for a clear reason: their matters are completely different. Indeed, article 41 of the Convention empowers the Court to grant “to the injured party”, as the case may be, a just satisfaction, when it finds that there is breach of the Convention and that the domestic law of the Contracting party in question barely imperfectly permit to erase the consequences of the respective breach”. As regards article 46, it sets forth the commitment of the Contracting parties to comply with the final decisions delivered by the Court in those disputes to which they are parties; these judgments are communicated to the Committee of Ministers of the Council of Europe watching over their enforcement. In the European mechanism of the protection of the human rights, the responsibility for watching over the enforcement of these judgments by the Contracting parties does not belong to the Court; this mission was granted to the executive and political body of the Council of Europe under the Convention, namely its Committee of Ministers.Starting from this “legal reality”, first of all, this study highlights the content of the obligation to enforce the judgments of the Court, this content being determined by the specificity of the European litigation of the human rights, which is a litigation for liability of the Contracting parties for a possible violation of a right guaranteed under the Convention and, at the same time, a dispute for damage for the prejudice thus suffered by the claimant. In any case, the Court shall not directly determine the termination of the effects of the State legal act inseminated under its judgment; it is the responsibility of the State found “guilty” to insure that the consequences of this act shall be prevented. In any case, besides the declaratory and relative nature of the judgments of the Court, the obligation of the States to enforce them has its origin in the commitment they made under article 1 of the Convention to secure everyone within their jurisdiction the rights and freedoms defined in that article. In concrete terms, as regards the application of the provisions of article 41 of the Convention, until the period between 1994 and 1995, the Court had not applied the principle restitutio in integrum in its case law, agreeing that the Contracting parties were free to choose the ways in which the consequences of the breach they had found in relation to claimants, had to be prevented. For the first time, this principle was outlined in the case Hentrich v. France (judgment of 22 September 1994), where the Court decided that, given the breach thus found of the claimant’s ownership right protected under article 1 of Protocol no. 1 to the Convention, “the most appropriate form of reparation generally consists in the retrocession of the land by the State”, otherwise, the calculation of the material injury shall start from the current market value of the land in dispute. Shortly thereafter, for the first time in its case law, in the case Papamichalopoulos and others v. Greece dated 31 October 1995, the former Court established a relationship between the obligation assumed by the States to enforce the judgments of the Court, the fact that the respective enforcement was watched over by the Committee of Ministers and the principle restitutio in integrum. Thus, it agreed that “a judgment under which a breach of the Convention is found, triggers the legal obligation for the defendant State to stop the respective breach and to wipe out all consequences in order to restore the previous position as much as possible”. Besides, the study reveals that on the application of article 41 of the Convention, in the case Scozzari and Giunta v. Italy dated 13 July 2000, the Court indicated that the content it intended to give to the obligation of the States to enforce its judgments, as reflected in the provisions of article 46 of the Convention, namely that the “guilty” State is called upon not only to pay to the claimants the sums awarded by way of just satisfaction, but also to choose, under the supervision of the Committee of Ministers, the general and/or specific measures, if appropriate, to adopt in its national legal system in order to stop the breach found by the Court and to wipe out its consequences as much as possible. Subsequently, in other cases, especially in the case of Brumărescu v. Romania (just satisfaction) dated 23 January 2001, the Court decided that the obligation imposed on the Contracting parties under article 46 of the Convention to enforce its judgments represents an obligation of result: to provide the claimants, as far as possible, the principle restitutio in integrum. Starting from these judgments,the study reveals that two directions related to the case-law of the Court may be distinguished in relation to the relationship which it establishes between articles 41 and 46 of the Convention: the first direction, which deals with the situation of the claimant as for the application of the principle restitutio in integrum when the violation of the provisions of the it found, has its origin in a “punctual dysfunction” of the laws or of the administrative practice of the State concerned; the second direction, which takes into account the fact that the breach found has its origin in a structural situation incompatible with the requirements of the Convention existing in the respective State. According to the judgments of the Court, the study carries out an adequate analysis of these directions of the case law. As regards the first direction of the case-law, the existence of a “punctual dysfunction” of the laws or of the national administrative practice being the “source” of finding the breach of the Convention, the obligation to enforce the judgments of the Court shall determine the States to make sure that there are adequate ways of performance at the national level, as much as possible, of the principle restitutio in integrum and that there are adequate legal possibilities to reexamine a case, including the reopening of legal proceedings. In relation to the second direction, the existence of a structural situation at the national level and incompatible with the requirements of the Convention which has always determined a breach, starting from the case Broniowski v. Poland dated 22 June 2004, the Court decided that beyond the obligation to indemnify the victims of such a breach, in the enforcement of the judgment the State concerned has to take all actions needed for the remedy of the structural failure of the laws or/and of the administrative practice found and which determined the finding of breach, particularly when such failures may decide in relation to different persons, possible claimants in front of the European jurisdiction.