Onder 6.19 Parket bij de Hoge Raad 22 december 2023

“In more recent cases the court has judged, with reference to De Wilde, Ooms and Versyp , that if an applicant had exhausted national remedies before he went to the ECtHR, one cannot expect this applicant to file a new claim under national law to receive compensation and exhaust all national remedies again before he can sue the government under Art. 41. The Court, in other words, judged that the requirement to exhaust all national remedies does not apply to Art. 41 as such. It is important to note that these criteria are very similar to the one that the Court uses in the context of the admissibility test. Indeed, for a case to be admissible with the ECtHR, the Court requires that applicants not exhaust all remedies just all effective remedies. The applicants thus do not have to exhaust all remedies but only those remedies that might offer a chance of success within a reasonable time and before an independent judge. The only difference between the general admissibility criteria and the subsidiarity requirements under Art. 41 is the fact that the Court does not want the applicants to exhaust the national remedies for a second time in order to receive compensation. In one exceptional case, the Court argued that it is suitable for the compensation of a human rights violation to be awarded by a tribunal that has also judged on the merits of the case.”

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