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You are here: BAILII >> Databases >> European Court of Human Rights >> BARBERÀ, MESSEGUÉ AND JABARDO v. SPAIN (ARTICLE 50) - 10588/83;10589/83;10590/83 [1994] ECHR 19 (13 June 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/19.html
Cite as: [1994] ECHR 19
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In the case of Barberà, Messegué and Jabardo v. Spain*,
The European Court of Human Rights, sitting in plenary session
pursuant to Rule 50 of the Rules of Court** and composed of the
following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr J. Pinheiro Farinha,
Mr L.-E. Pettiti,
Mr B. Walsh,
Sir Vincent Evans,
Mr R. Macdonald,
Mr C. Russo,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr J. De Meyer,
Mr L. Torres Boursault, ad hoc judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 March and 26 May 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar:
* The case is numbered 24/1986/122/171-173. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The third number indicates the case's
position on the list of cases referred to the Court since its creation
and the last two numbers refer to the list of the corresponding
originating applications to the Commission.
** Former Rule 50 of the Rules of Court; the competent Chamber had
decided to relinquish jurisdiction in favour of the plenary Court on
23 September 1987.
_______________
PROCEDURE AND FACTS
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") and by the Spanish Government ("the
Government") on 12 December 1986 and 29 January 1987, respectively,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ("the Convention"). It
originated in three applications (nos. 10588/83-10590/83) against the
Kingdom of Spain lodged with the Commission under Article 25 (art. 25)
by three Spanish nationals, Mr Francesc-Xavier Barberà,
Mr Antonino Messegué and Mr Ferrán Jabardo, on 22 July 1983.
2. In a judgment of 6 December 1988 ("the principal judgment"),
the Court found a violation of Article 6 para. 1 (art. 6-1) of the
Convention. In view of the belated transfer of the applicants from
Barcelona to Madrid to face trial, the unexpected change in the court's
membership immediately before the beginning of the trial, the brevity
of the trial and, above all, the fact that very important pieces of
evidence were not adequately adduced and discussed at the trial in the
applicants' presence and in public, the proceedings in question, taken
as a whole, did not satisfy the requirements of a fair and public
hearing (Series A no. 146, pp. 26-39, paras. 51-91, and point 5 of the
operative provisions).
3. As the issue of the award of just satisfaction was not yet
ready for decision, the Court, in the principal judgment, reserved the
whole of this question. It invited the Government and the applicants
to submit to it in writing, within three months of the delivery of the
judgment, their observations on the matter and in particular to inform
it of any agreement reached between them (ibid., pp. 38-39,
paras. 92-93 and point 7 of the operative provisions).
4. On 2 March 1989, the Government filed a memorial in which they
replied to the claims that the applicants had lodged in 1987 (ibid.,
p. 38, para. 92) and drew attention, inter alia, to the fact that under
Spanish law, as it then stood, the proceedings could not be reopened
and restitutio in integrum was impossible.
In a letter of 4 April 1989 the applicants informed the
Registrar that, on 30 March 1989, they had lodged an application with
the Audiencia Nacional to have the judgment of that court of
15 January 1982 set aside. They accordingly requested the Court to
stay the proceedings concerning the application of Article 50 (art. 50)
until the national court had given judgment. On 2 May they submitted
observations in reply to the Government's memorial.
On 20 September 1989, after consulting the Agent of the
Government and the Delegate of the Commission, the President agreed to
stay the proceedings. On several occasions he renewed this decision
pending the outcome of the various proceedings brought in Spain with
a view to having the judgment of 15 January 1982 set aside. On
3 January 1992 the applicants requested that the Strasbourg proceedings
be resumed as the Constitutional Court had quashed their convictions.
On 25 June the President requested the Agent of the Government for
information on the progress of the domestic proceedings. In the light
of that information, on 26 November the Court decided to resume its
examination of the question within six months.
5. The domestic proceedings conducted subsequent to the principal
judgment included the following decisions:
(a) on 29 June 1989 the Audiencia Nacional decided to transmit
the file to the Criminal Division of the Supreme Court after having
found that it lacked jurisdiction. It ordered a stay of execution of
the sentences imposed on the applicants by the judgment of
15 January 1982 and their immediate release;
(b) on 14 July 1989 the Audiencia Nacional decided to attach
conditions to the applicants' release, namely an obligation to report
to a judge twice a month and a prohibition on leaving Spanish
territory;
(c) on 4 April 1990 the Supreme Court gave a judgment
dismissing the applicants' application to have the original judgment
set aside and revoking the stay of execution of their sentences;
(d) on 5 April 1990 the Audiencia Nacional ordered that they
be returned to prison;
(e) on 20 July 1990 the Constitutional Court gave a judgment
staying the execution of the Supreme Court's judgment of 4 April 1990.
It ordered that the applicants be released subject to the conditions
laid down in the Audiencia Nacional's decision;
(f) on 16 December 1991 the Constitutional Court set aside the
judgment of the Supreme Court and allowed the applicants' application
of 30 March 1989 (see paragraph 4 above). It ordered the reopening of
the trial in the Audiencia Nacional;
(g) on 30 October 1993, in a judgment which has become final,
the Audiencia Nacional acquitted the applicants, finding that there was
insufficient evidence.
6. On 25 June 1993 the President requested the applicants to
submit a memorial summarising and updating their claims for just
satisfaction. The Registrar received this memorial on 2 August and the
Government's observations in relation thereto on 14 December. On 3 and
4 February 1994 respectively the applicants filed additional
observations and the Delegate of the Commission lodged his comments.
7. On 24 March 1994 the Court decided that, in the circumstances
of the case, it was not necessary to hold a hearing.
AS TO THE LAW
8. According to Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
By virtue of this provision the applicants sought compensation
for damage and the reimbursement of costs and expenses.
I. DAMAGE
A. The arguments of the participants in the proceedings
1. The applicants
9. As regards pecuniary damage, the applicants sought compensation
for loss of earnings and of career prospects as a result of their
detention.
In their memorial of 6 May 1987, Mr Barberà and Mr Messegué
assessed their loss of earnings at 4,230,284 pesetas from
15 January 1982 to 20 February 1987, from which date they were able to
work outside prison under an "open-prison" system. Mr Jabardo claimed
2,272,491 pesetas. They calculated these amounts on the basis of the
minimum salary for their respective fields of employment. They each
sought 1,000,000 pesetas for loss of career prospects.
On 2 April 1993 they updated their claims and adopted a new
method of calculation, based on the daily allowance awarded by the
Spanish courts in cases of incapacity for work. They assessed this
amount at 7,000 pesetas for each day spent in prison and 5,000 pesetas
for each day spent by Mr Barberà and Mr Messegué under the
"open-prison" system. The total amounts claimed were as follows:
17,806,000 pesetas for Mr Barberà, 17,806,000 for Mr Messegué and
6,937,000 pesetas for Mr Jabardo.
10. In addition, in 1987, Mr Barberà and Mr Messegué had claimed
5,000,000 pesetas each and Mr Jabardo 2,000,000 pesetas in respect of
non-pecuniary damage sustained as a result of their detention following
their conviction by the Audiencia Nacional and on account of damage to
their reputation deriving from their conviction.
When they updated their claims on 2 April 1993, they argued
that, on the basis of the Spanish retail-price index, these amounts
should be increased by 40.6%, a calculation which gave the following
sums: 7,030,000 pesetas for both Mr Barberà and Mr Messegué and
2,812,000 for Mr Jabardo.
2. The Government
11. According to the Government, the Court's principal judgment has
been executed in Spain in the fullest possible manner. The
Constitutional Court's judgment quashing the convictions and ordering
that the proceedings in the Audiencia Nacional be reopened (see
paragraph 5 above) represented an innovation for the Spanish legal
system, under which previously the finding of a violation by the
European Court could not constitute grounds for reopening proceedings.
In the subsequent proceedings all the guarantees laid down in Article 6
(art. 6) had been scrupulously complied with and they therefore
afforded the most complete restitutio in integrum that could be
obtained from the point of view of Article 50 (art. 50). The acquittal
by the Audiencia Nacional (see paragraph 5 above) had taken full
account of the applicants' interests.
12. Secondly, and in the alternative, the Government contended that
the applicants' entitlement to compensation for their term of
imprisonment derived from a malfunctioning of the Spanish system of the
administration of justice, in respect of which a claim could be brought
through domestic channels in accordance with section 292 et seq. of the
Judicature Act of 1 July 1985. They added that, in its decisions of
6 July and 1 September 1993 (applications nos. 17553/90 and 17999/91,
respectively Prieto Rodríguez v. Spain and V. v. Spain) the Commission
had recognised that this remedy was an effective one.
13. Finally, and in the further alternative, the Government
maintained that there was no causal connection between the violation
found by the Court and the pecuniary and non-pecuniary damage which,
according to the applicants, flowed from their imprisonment. In their
1989 memorial, they argued that neither that detention nor the
applicants' conviction had been the result of that violation. At a
later stage in the proceedings, they observed that, during the second
trial, the majority of the witnesses who had given evidence at the
first trial had not been present, either because they had died in the
meantime - for instance Mr Martínez Vendrell - or because they had been
unable to attend.
3. The Delegate of the Commission
14. The Delegate of the Commission expressed the view that the
applicants were entitled to compensation for pecuniary and
non-pecuniary damage but that they should first have recourse to the
remedy available under the Judicature Act.
B. The Court's decision
15. The Court fully appreciates the importance of the
Constitutional Court's judgment of 16 December 1991 for the execution
of judgments delivered in Strasbourg; the Constitutional Court thereby
showed once again its commitment to the Convention and the Court's
case-law. Nor does the Court underestimate the efforts made by the
Spanish courts, especially the Audiencia Nacional, to ensure that, in
the second set of proceedings, the applicants were afforded the
necessary guarantees. It observes that the outcome of the domestic
proceedings conducted subsequent to the principal judgment, and in
particular the final acquittal, were favourable to the applicants,
notably as regards their reputation, and that they were released in
1990 (see paragraph 5 above), even before their acquittal, despite the
heavy prison sentences which they were still serving at the time.
16. The Court accepts that, as the Government pointed out, evidence
adduced at the first trial, in particular the testimony of witnesses,
was not available at the second trial. It notes however that in its
principal judgment the finding of a violation of Article 6 para. 1
(art. 6-1) was based above all on "the fact that very important pieces
of evidence were not adequately adduced and discussed at the trial in
the applicants' presence and under the watchful eye of the public"
(Series A no. 146, pp. 37-38, para. 89). Admittedly, the Court cannot
speculate as to what the outcome of the 1982 proceedings would have
been had the violation of the Convention not occurred.
Nevertheless, the applicants were kept in prison as a direct
consequence of the trial found by the Court to be in violation of the
Convention. Moreover, in the light of the final judgment of the
Audiencia Nacional of 30 October 1993 (see paragraph 5 above), it
cannot be assumed that even if the first trial had been conducted in
compliance with the Convention the outcome would not have been more
favourable to the applicants. In any event, they suffered a real loss
of opportunity to defend themselves in accordance with the requirements
of Article 6 (art. 6) and thereby to secure a more favourable outcome.
There was thus, in the opinion of the Court, a clear causal connection
between the damage claimed by the applicants and the violation of the
Convention. In the nature of things the subsequent release and
acquittal of the applicants could not in themselves afford restitutio
in integrum or complete reparation for damage derived from their
detention (see, mutatis mutandis, the Ringeisen v. Austria judgment of
22 June 1972, Series A no. 15, p. 8, para. 21).
17. The Court, like the Government and the Delegate of the
Commission, notes that there exists under Spanish law a remedy making
it possible to obtain compensation in the event of the malfunctioning
of the system of justice (see paragraphs 12 and 14 above).
Nevertheless the Court does not consider itself bound to stay
the proceedings relating to the applicants' claims. Under Article 50
(art. 50) it may proceed to apply that Article (art. 50) if the
internal law of the respondent State "allows only partial reparation
to be made" for the consequences of the violation found, as seems to
be the case in this instance (see paragraph 16 above). If, after
having exhausted domestic remedies without success before complaining
in Strasbourg of a violation of their rights, then doing so a second
time, successfully, to secure the setting aside of the convictions, and
finally going through a new trial, the applicants were required to
exhaust domestic remedies a third time in order to be able to obtain
just satisfaction from the Court, the total duration of the proceedings
would be hardly consistent with the effective protection of human
rights and would lead to a situation incompatible with the aim and
object of the Convention (see, mutatis mutandis, the De Wilde, Ooms and
Versyp v. Belgium judgment of 10 March 1972, Series A no. 14, pp. 8-9,
para. 16).
18. As regards the amounts claimed in respect of loss of earnings
and of career prospects, the Court cannot accept the method of
calculation put forward by the applicants in 1993 based on allowances
claimed in Spain in cases of incapacity for work (see paragraph 9
above), because such a method has no connection with the circumstances
of the case. Despite the lack of supporting documents and the
contradictions in the statements made by the applicants regarding their
alleged occupations prior to their imprisonment - the Government
correctly drew attention to this in their 1989 memorial - the Court
considers that it should award them compensation under this head on the
basis of the figures submitted by them in 1987.
19. Like the finding of a violation of the Convention by the
European Court, the decisions of the Spanish courts subsequent to the
principal judgment afforded the applicants a measure of reparation for
non-pecuniary damage. They cannot, however, fully redress the damage
sustained in this respect.
20. Making an assessment on an equitable basis in accordance with
Article 50 (art. 50) and having regard to the circumstances referred
to above, the Court awards Mr Barberà 8,000,000 pesetas, Mr Messegué
8,000,000 pesetas and Mr Jabardo 4,000,000 pesetas, to cover all the
heads of damage claimed.
II. COSTS AND EXPENSES
A. The arguments of the participants in the proceedings
1. The applicants
21. In their 1987 memorial, each of the applicants sought the
reimbursement of 225,000 pesetas in respect of the fees of their
lawyers in the appeal proceedings in the Supreme Court and the
Constitutional Court. They also claimed the following sums:
1,265,000 pesetas for Mr Barberà, 1,265,000 pesetas for Mr Messegué and
830,000 pesetas for Mr Jabardo, in respect of their lawyers' travel and
subsistence expenses for the hearings in Madrid and for the monthly
visits to the applicants in Madrid and Lérida prisons.
As regards the proceedings before the Convention institutions,
the applicants claimed jointly 1,000,000 pesetas for lawyers' fees,
310,000 pesetas for the travel and subsistence expenses in Strasbourg
of Mr Etelin and Mr Gil Matamala, and 20,000 pesetas for photocopying,
postal and telephone expenses, less the 5,876 French francs received
from the Council of Europe as legal aid.
In 1993 they updated these figures to take account of the
retail-price index for the relevant period (an increase of 40.6%).
22. In their observations in reply submitted in 1989, they added
to these sums 270,000 pesetas for lawyers' fees, 120,000 pesetas for
travel and subsistence expenses and 64,032 pesetas for the cost of
translating into Spanish the principal judgment in connection with
their application to have their convictions set aside (see paragraph 4
above), a total of 454,032 pesetas.
In 1993 they increased these amounts by 26.7%.
23. Finally, in their 1993 update (see paragraph 6 above) the
applicants claimed the following lawyers' fees for the period
1989-1993:
(a) 250,000 pesetas for each of the three lawyers in the
proceedings to have their conviction set aside in the Audiencia
Nacional and the Supreme Court;
(b) 500,000 pesetas for the three applicants jointly in respect
of the amparo appeal to the Constitutional Court;
(c) 150,000 pesetas for the proceedings relating to Article 50
(art. 50).
The sum claimed for this period is therefore 1,400,000 pesetas.
24. The amounts claimed in respect of costs and expenses, taking
into account the increases sought in 1993, are as follows:
7,265,476 pesetas (up to 1987), 575,258 pesetas (for the
period 1987-1989) and 1,400,000 pesetas (for the period after 1989),
a total of 9,240,734 pesetas.
2. The Government
25. The Government regarded a total sum of 4,357,663 pesetas as
reasonable; they contested the applicants' claims for reimbursement
only on two points.
In the Government's view, of the travel and subsistence
expenses incurred on the monthly visits by the lawyers to their clients
in prison only 300,000 pesetas, corresponding to the visit of the three
lawyers to Madrid for the hearing concerning the appeal on points of
law in the Supreme Court, could be taken into account (see paragraph 30
of the principal judgment, Series A no. 146, pp. 16-17).
The Government considered in addition that the increases of
40.6% and 26.7% concerning the sums claimed in 1987 and 1989
respectively were unacceptable because the applicants had themselves
requested the stay of the proceedings relating to the application of
Article 50 (art. 50). Only an increase of 10% for the period between
16 December 1991 and 30 October 1993 (see paragraphs 4-5 above) was
permissible, as the proceedings had remained stayed during that period
at the Government's request.
3. The Delegate of the Commission
26. The Delegate of the Commission expressed the view that the
expenses and fees claimed were from an overall point of view excessive,
but left the matter to the discretion of the Court.
B. The Court's decision
27. The Court notes that it is not disputed that the expenses
incurred by the applicants were genuinely so incurred. On the other
hand, it shares the Government's doubts as to the necessity of the
lawyers' monthly visits to their clients in prison, without however
ruling all of them out. Finally, it considers the increases applied
to the claims submitted at the various stages of the proceedings to be
excessive.
Making an assessment on an equitable basis, the Court awards
the applicants jointly 4,500,000 pesetas, less the 5,876 French francs
already paid by the Council of Europe as legal aid.
FOR THESE REASONS, THE COURT
1. Holds by thirteen votes to three that the respondent State is
to pay, within three months, for damage, 8,000,000 (eight
million) pesetas to Mr Barberà, 8,000,000 (eight million)
pesetas to Mr Messegué and 4,000,000 (four million) pesetas to
Mr Jabardo;
2. Holds unanimously that the respondent State is to pay, within
three months, for costs and expenses, 4,500,000 (four million
five hundred thousand) pesetas to the three applicants
jointly, less the 5,876 (five thousand eight hundred and
seventy-six) French francs already received from the Council
of Europe;
3. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and notified in writing on
13 June 1994 pursuant to Rule 54 para. 2, second sub-paragraph, of the
Rules of Court.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) joint partly dissenting opinion of Mr Matscher and
Mr Pettiti;
(b) partly dissenting opinion of Mr Torres Boursault.
Initialled: R.R.
Initialled: H.P.
JOINT PARTLY DISSENTING OPINION OF JUDGES MATSCHER AND PETTITI
(Translation)
By a judgment of the Audiencia Nacional of 15 January 1982 the
three applicants were found guilty of having committed, on 9 May 1977,
a murder in circumstances which made this crime particularly abhorrent.
They were sentenced to long terms of imprisonment. This judgment was
partly quashed and partly upheld by the Supreme Court. However, the
applicants served only part of their sentence. Indeed they had been
released before the retrial had taken place (from 29 June 1989
to 5 April 1990 and then from 20 July 1990).
Following a judgment of the European Court of 6 December 1988
(Series A no. 146), which found that the criminal proceedings had in
several respects infringed the rights guaranteed under Article 6
(art. 6) of the Convention, on 16 December 1991 the Constitutional
Court set aside the national decisions in question and remitted the
case to the Audiencia Nacional for retrial.
By a decision of 30 October 1993 the applicants were acquitted,
ultimately for lack of evidence, as can be seen clearly from the
relevant judgment. More than fifteen years after the events and in
view of the fact that in addition witnesses had either died in the
meantime or were prevented from testifying by their state of health,
their evidence was no longer available.
In our view, the loss of opportunity which the present judgment
found to be a ground for awarding compensation has to be assessed not
only with reference to the European Court's judgment on the merits and
the decision of the Constitutional Court, but also on the basis of the
effect of the applicants' conduct, because the circumstances of the
second trial were totally different. Moreover, the Court did not find
any breach of the principle of presumption of innocence.
In any case, the exemplary way in which the Spanish authorities
gave effect to the European Court's judgment should be particularly
stressed.
In these circumstances we consider that, inasmuch as they
benefited from a complete retrial, the applicants obtained what they
were entitled to under the Convention, so that the finding of the
violation, given the consequences which ensued therefrom, constitutes
just satisfaction within the meaning of Article 50 (art. 50). It was
not therefore necessary to award compensation for pecuniary and
non-pecuniary damage.
PARTLY DISSENTING OPINION OF MR TORRES BOURSAULT, AD HOC JUDGE
(Translation)
I cannot agree with the majority as regards point 1 of the
operative provisions of the judgment. It is not, in my view,
consistent with the terms of Article 50 (art. 50) of the Convention,
which provides for the award of "just satisfaction" to the party
injured by the violation "if the internal law ... allows only partial
reparation to be made for the consequences of this decision", a rule
which does not require interpretation (in claris non fit interpretatio)
and which, in any event, may under no circumstances be applied in a way
that conflicts with its literal meaning.
1. Following the Court's judgment of 6 December 1988, the Spanish
Constitutional Court adopted the first appropriate measure to afford
full reparation for the consequences of the judicial decision which was
at the origin of the violation of Article 6 para. 1 (art. 6-1) found
by the European Court in so far as it ordered a retrial. At that
retrial the Audiencia Nacional - this time without committing a breach
of the Convention - afforded full reparation in internal law by its
acquittal, which has become final. The Court declared that the trial
contravened the requirements of Article 6 para. 1 (art. 6-1) of the
Convention, but the consequences of the violation found were made good
under internal law in so far as a retrial was conducted in strict
compliance with the Convention. This was recognised by: the Delegate
of the Commission (see letter of 22 October 1993: "The Constitutional
Court's judgment of 16 December 1991 makes reparation as far as
possible for all the consequences of the violation of Article 6
para. 1 (art. 6-1) of the Convention found by the Court in its
judgment"); and the applicants' lawyer (see letter of 1 October 1992:
"by declaring void the proceedings which led to the conviction of
15 January 1982, the Spanish Constitutional Court's judgment ...
represented the most effective possible execution, by way of restitutio
in integrum of the European Court's judgment").
If the applicants consider at this stage, in contradiction with
their earlier arguments adduced before the Court, that the reparation
afforded them is still insufficient, then they should seek compensation
through the remedy available to them under Spanish law, namely under
sections 292 et seq. of the Judicature Act, deriving from Article 9
para. 3 of the Constitution. To date the applicants have not had
recourse to this procedure which would moreover be fully applicable to
them and which has already produced results in numerous other cases.
In any case, it is clear from Article 50 (art. 50) of the Convention
that so long as there exists an adequate means of redress in domestic
law, there is an obligation to seek the fullest possible restitutio in
integrum through that means. It is only in the alternative, where the
decision proves unsatisfactory for the claimants and, in any event, if
the domestic remedies do not exist or are insufficient or ineffective
("if the internal law ... allows only partial reparation" under the
terms of Article 50) (art. 50) to obtain the most complete reparation
possible that it will be for the Court ("if necessary") - and, I
repeat, in the alternative - to determine the matter as the final
instance, as indeed was maintained by the Delegate of the Commission.
2. As regards the sum awarded to the applicants for just
satisfaction and in compensation for having served part of the prison
sentence imposed on them by a judgment of the Audiencia Nacional which
was declared to be contrary to the Convention, I must again express my
disagreement with the majority. If it falls to the Court to award just
satisfaction under Article 50 (art. 50) in the form of compensation,
such an amount should be commensurate and proportional, regard being
had to all the circumstances of the case assessed on an equitable
basis. It should not represent an unjustifiable enrichment for the
applicants or be a sum that will be regarded as excessive by public
opinion, because of its size in absolute terms and the disproportion
between it and compensation awarded in cases of damage of the same
nature in other legal systems.