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V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

168. 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

169. The applicants Mr Janowiec and Mr Trybowski claimed 50,000 euros (EUR) each in respect of non-pecuniary damage for the loss of their father and grandfather, respectively.

170. The applicant Mr Jerzy Malewicz claimed EUR 1,048,800 in respect of pecuniary damage which represented a loss of income of his late father over a nineteen-year period and the interest on that amount. He further claimed double that amount in respect of non-pecuniary damage.

171. The other applicants left the determination of the amount of just satisfaction to the discretion of the Court.

172. The Government pointed out that the claims by Mr Janowiec, Mr Trybowski and Mr Jerzy Malewicz related to the death of their relatives. The complaint in this regard was declared inadmissible as falling outside the Court’s jurisdiction ratione temporis. As to the claims by the other applicants, the Government stressed that they had initially claimed a symbolic compensation of one euro each and that they had not given a convincing explanation for a subsequent change in their position. Furthermore, they had not been direct or indirect participants in, or witnesses to, the Katyn massacre and some of them were only born in 1940 or after the Second World War.

173. The Court reiterates that it has found a violation of Article 3 in respect of the applicants Mr Gustaw Erchard, MsIrena Erchard, Mr Janowiec, Mr Jerzy Karol Malewicz, the late Mr Krzysztof Jan Malewicz, Ms Mieszczankowska, MsMichalska, Mr Tomaszewski, Mr Wielebnowski, and Ms Wołk. It accepts that they must have suffered anxiety and frustration on account of the Russian authorities’ flagrant, continuous and callous disregard for their enquiries. However, in the exceptional circumstances of the present case, it considers that the finding of a violation would constitute sufficient just satisfaction.

174. In so far as some applicants claimed compensation in respect of pecuniary and non-pecuniary damage in connection with the death of their father or grandfather, the Court notes that the complaint about their killing in 1940 falls outside the scope of the instant case (see § 101 of the admissibility decision of 5 July 2011). Accordingly, it rejects this part of the claims.

B. Costs and expenses

175. The applicants claimed EUR 25,024.82 in legal fees of Mr Szewczyk (exclusive of legal aid received from the Court), EUR 7,000 in legal fees of Mr Karpinskiy and MsStavitskaya, and EUR 7,581 and 1,199.25 Polish złotys for transport and translation costs. In addition, the applicant Mr Jerzy Karol Malewicz claimed 2,219.36 US dollars for his daughter’s and his own travel and accommodation expenses incurred in connection with their presence at the hearing before the Court.



176. The Government commented that Mr Szewczyk’s fees appeared excessive, that the necessity of travel expenses had not been convincingly shown, and that two Russian counsel had only taken part in the domestic rehabilitation proceedings which fell outside the scope of the instant case. Moreover, the claim by Russian counsel was not based on any payment rate and was not linked to the amount of work actually performed. Finally, the Government pointed out that Mr Szewczyk and Mr Kamiński had been granted legal aid for their appearance before the Court.

177. Under the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. On the basis of the materials in the file, the Court is not satisfied that Mr Karpinskiy or MsStavitskaya carried out any substantive work on the case. The Court also finds the legal fees claimed by Mr Szewczyk excessive. Having regard to those elements and the above criteria, the Court considers it reasonable to awardthe applicants jointly EUR 5,000 in respect of MrSzewczyk’s fees, translation and travel expenses, plus any tax that may be chargeable to them, and EUR1,500 in respect of the applicant MrJerzy Malewicz’s travel and accommodation expenses, plus any tax that may be chargeable to him.

C. Default interest

178. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.


Date: 2015-01-11; view: 324


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