Onder 6.17 Parket bij de Hoge Raad 22 december 2023

“Article 41 ECHR stipulates that the ECtHR can only grant a just satisfaction ‘if the internal law of the High Contracting Party concerned allows only partial reparation to be made.’ These words refer to the principle of subsidiarity. This principle is a general principle in the Convention according to which the Convention is only a subsidiary protection-mechanism. The first and most important mechanism to protect human rights must be found in national law. This has two consequences: one substantial and one procedural. From a substantial point of view, the principle of subsidiarity requires the Court to take into account a margin of appreciation for the member states as they are, in principle, in a better position than the Court itself to protect human rights. From a procedural point of view, the principle of subsidiarity (as enshrined in Art. 35, §1) requires applicants to exhaust the national remedies and has as a result that the Court will not question the facts that were already subject of a national procedure. By enshrining this principle in Art. 41, it seems that the ECtHR must take into account the remedies that are offered by national law when it grants damages. Indeed, one cannot imagine that the Court would not take into account the remedies provided by national law if it may only grant an award in cases where the national legal system of the applicant allows only partial reparation to be made.”

$ curl -s https://bron.page/api/v1/blobs/d365cf27cde1a8bb62c36140eccc6df6382a75df8781a4a49f2af17f0fc31c4f | shasum -a 256