The European Convention on Human Rights as an instrument of tort law / Stefan Somers.

Format:

Book

Author/Creator:

Somers, Stefan, author.

Language:

English

Subjects (All):

Torts--Europe.

Torts.

Europe.

Liability (Law)--Europe.

Liability (Law).

Physical Description:

1 online resource (xlvi, 325 pages) : digital, PDF file(s)

Place of Publication:

Cambridge : Intersentia, 2018.

System Details:

text file

PDF

Summary:

Tort law and human rights belong to different areas of law, namely private and public law. Nevertheless, the European Convention on Human Rights increasingly influences national tort law of signatory states, both on the vertical level of state liability and on the horizontal level between private persons. An individual can appeal to the European Convention on Human Rights in order to challenge national tort law in two situations: where he is held accountable under national tort law for exercising his Conventions rights, and where national law does not provide effective compensation in accordance with Article 13. The second method is strongly connected with the practice of the European Court of Human Rights to award compensations itself on the basis of Article 41. A compensation in national tort law is considered to be effective according to Article 13 when it is comparatively in line with the compensations of the European Court of Human Rights granted on the basis of Article 41. This raises the important question as to how compensations under Article 41 are made by the European Court of Human Rights. The European Convention on Human Rights as an Instrument of Tort Law examines the entanglement of public and private and national and transnational law in detail and argues that while the Court uses a different terminology, it applies principles that are very similar to those of national tort law and that the Court has developed a compensatory practice that can be described as a tort law system. Stefan Somers is a professor at the Free University of Brussels (VUB) where he lectures on the law of obligations. He is also a trainee judge and prosecutor at the Court of First Instance and the Commercial Court, Antwerp.

Contents:

Chapter 1 Human Rights in Horizontal Relations p. 7

1 The Horizontal Dimension of Human Rights in the Convention Text p. 7

2 The Horizontal Dimension of Human Rights in the Jurisprudence of the Court p. 11

2.1 The Theory of Positive Obligations in General p. 11

2.1.2 Specific Criteria in the Application of Positive Obligations p. 12

2.2 The Theory of Positive Obligations to Protect Human Rights in Horizontal Relations p. 17

2.2.1 Legal Basis p. 17

2.2.2 Specific Criteria of Positive Obligations to Interfere in Horizontal Relations p. 21

2.2.2.1 General Outline p. 21

2.2.2.2 A Wider Scope of Application When Human Rights Conflict? p. 23

2.2.2.3 Uniqueness of Positive Obligations to Protect Human Rights in Horizontal Relations p. 27

Chapter 2 Articles 13 and 41 ECHR and State Liability p. 33

1 Article 13 and the Reasonable Time Requirement p. 33

2 Article 13 Read in Conjunction with Other Treaty Provisions p. 38

2.1 Articles 2 and 3 of the Convention p. 38

2.2 Article 8 of the Convention p. 40

Chapter 3 The Interaction between Articles 13 and 41 ECHR and Liability in Horizontal Relations p. 45

1 Tort Law as an Effective Remedy for Unintentional Infringements of Human Rights by Private Persons p. 45

2 Tort Law as an Accessory Remedy for Intended Infringements of Human Rights p. 50

3 Limitations in Requiring Horizontal Tort Law p. 52

Chapter 4 Tort Liability as a Violation of Human Rights p. 59

Chapter 5 Article 41 as an Alternative Tort Law System p. 63

1 Requirements of Admissability p. 63

2 Additional Compensation under Article 41 p. 67

2.1 Additional Compensation in Cases Where Applicants Received Partial Redress via National Law p. 67

2.2 Additional Compensation in Cases Where States Provided Measures to Redress the Damages p. 71

Chapter 6 General Outline of Article 41 of the Convention p. 73

1 The Text of Article 41 of the Convention p. 73

2 The Violation of the Convention p. 75

3 The Principle of Subsidiarity p. 75

3.1 The Negligence of the Principle of Subsidiarity by the Court p. 76

3.2 The National State's Ability to Restore the Damages when the Court Cannot p. 79

3.3 The Effectiveness of the National Procedure p. 81

4 A. Discretionary Competence of the Court p. 85

5 The Meaning of Just Satisfaction p. 86

5.1 Can the Court Compensate Less than the Totality of the Caused Damages? p. 86

5.2 Has the Court Other Means to Grant Restitutio in Integrum? p. 89

Chapter 7 Damages p. 99

1 Definition and Finding of Damages p. 99

1.1 Definition of Damages p. 99

1.2 Finding of Damages p. 101

1.2.1 The Finding of a Violation of the Convention p. 101

1.2.2 The Finding of Damages p. 103

2 The Beneficiaries p. 107

2.1 The Injured Party p. 107

2.2 Juristic Persons p. 109

2.3 Young Children and Mentally Ill Persons p. 113

2.4 The Successors of the Directly Injured Party p. 117

2.4.1 The Damages are Caused by the Death of a Relative p. 118

2.4.2 The Damages are Not Caused by the Death of a Relative p. 120

3 The Actual Content of Damages p. 123

3.2 The Content of Immaterial Damages p. 126

3.3 Declaratory Judgments as Just Satisfaction p. 129

3.3.1 Situations Where the Court Never Makes Declaratory Judgments p. 132

3.3.2 Situations Where the Court Makes Declaratory Judgments p. 135

3.3.2.1 The Damages are Very Limited p. 137

3.3.2.2 The Damages are Already Repaired by Other Measures p. 143

3.3.2.3 There is Only a Potential Violation of the Convention p. 145

3.3.2.4 The Fault of the Applicant and the Principle of Fraus Omnia Corrumpit p. 146

3.3.2.5 Only a Part of the Alleged Violations is Accepted by the Court p. 148

3.3.3 Criticism on the Use of Declaratory Judgments p. 149

3.4 Defining Damages by Human Rights p. 155

3.4.1 Are Damages Necessary for Finding a Convention Violation? p. 157

3.4.2 Does an Interest Have to be Legitimate? p. 160

Chapter 8 Fault and Blameworthiness p. 163

1 Blameworthiness p. 163

1.1 The Requirement of Accountability p. 163

1.1.1 The Requirement of Accountability in General p. 164

1.1.2 Grounds for Justification p. 168

1.1.2.1 Force Majeure p. 168

1.1.2.2 Legitimate Self-Defense p. 172

1.1.2.3 Insuperable Error p. 174

1.2 Human Rights as Justification Grounds p. 174

2 Fault p. 177

2.1 The General Standard of Conduct and Human Rights p. 177

2.1.1 The General Standard of Conduct of the State in the Jurisprudence of the ECtHR p. 177

2.1.2 Do the Proportionality Test and the General Standard of Conduct Always Overlap? p. 182

2.1.3 The Concretization of the General Standard of Conduct p. 187

2.1.4 The General Standard of Conduct of Private Persons in the Jurisprudence of the ECtHR p. 189

2.2 The Violation of a Human Right as a Fault in Itself p. 196

2.2.1 .On Subjective Rights, 'Troubles dc Voisinage' and Human Rights p. 196

2.2.2 Colorizing the General Standard of Conduct with Human Rights p. 199

Chapter 9 Causality p. 205

1 Factual Causality: The But-For Test p. 206

2 Legal Causality p. 210

2.1 Theories on Causality p. 210

2.1.1 Equivalence p. 210

2.1.2 Adequacy p. 212

2.1.3 Protective Purpose of the Norm p. 213

2.2 Causality in the Jurisprudence of the ECtHR p. 214

2.2.1 Indeterminacy of the Direct Causal Connection p. 214

2.2.2 Protective Purpose of the Norm p. 219

3 Loss of an Opportunity p. 226

3.1 Violations of Material Aspects of Convention Rights p. 227

3.2 Violations of Procedural Aspects of Convention Rights p. 229

Chapter 10 Restitution p. 237

1 The Purpose of Restitution p. 237

2 The Choice between Restitution in Kind and Financial Compensation p. 240

3 The Estimation of Damages p. 244

3.1 A Concrete or an Abstract Estimation p. 244

3.2 Shared Responsibility of Tortfeasor and Victim p. 253

3.2.1 The Contributory Fault of the Victim Leads to Shared Liability p. 253

3.2.2 Predetermination of the Victim p. 257

3.3 The Victim's Duty to Mitigate Damages p. 258

3.4 The Acceptance of a Risk p. 264

4 Deterrence and the Size of Restitution p. 267

4.1 Punitive Damages p. 267

4.1.1 English Law p. 267

4.1.2 The European Convention on Human Rights p. 268

4.2 The Dissuasive Use of Non-Pecuniary Damages p. 271

4.2.1 Awarding Just Satisfaction under Article 41 of the Convention p. 274

4.2.1.1 The Character and the Seriousness of the Human Rights Violation p. 274

4.2.1.2 The Length and the Gravity of the Damages p. 278

4.2.1.3 The Number of Human Rights Victims p. 279

4.2.1.4 The Behavior of the Parties in the Procedure p. 281

4.2.1.5 Earlier Convictions of a Member State p. 282

4.2.1.6 The Standard of Living in the Country Where the Applicant Lives p. 283

4.2.2 Punitive Damages and the Right to an Effective Remedy p. 284

4.3 Limiting the Restitutio in Integrum by Appealing to Human Rights p. 286

4.3.1 A Tendency Towards Material Equality in Tort Law p. 286

4.3.2 A Minimal Protection of Substantial Equality between the Parties p. 289.

Notes:

Title from publisher's bibliographic system (viewed on 18 Feb 2019).

Other Format:

Print version:

ISBN:

9781780688046

Access Restriction:

Restricted for use by site license.