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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.