Damages for Violations of Human Rights: A Comparative Study of Domestic Legal Systems

488 Pages·2016·4.787 MB·English

by  Ewa Bagińska (eds.)

Ius Comparatum - Global Studies in Comparative Law
Ewa Bagińska Editor
Damages for
Violations of
Human Rights
A Comparative Study of Domestic Legal
Systems
Ius Comparatum - Global Studies
in Comparative Law
Volume 9
Series Editors
Katharina Boele-Woelki, University of Utrecht, The Netherlands
Diego P. Fernandez Arroyo, Institut d’Études Politiques de Paris, Sciences Po,
France
Founding Series Editors
Jürgen Basedow, Max Planck Institute for Comparative and International Private
Law, Germany
George Bermann, Columbia University School of Law, USA
Editorial Board
Bénédicte Fauvarque-Cosson, Université Panthéon-Assas, Paris 2, France
Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy
Toshiyuki Kono, Kyushu University, Fukuoka, Japan
Marek Safjan, Court of Justice of the European Union, Luxembourg
Jorge Sanchez Cordero, Mexican Center of Uniform Law, Mexico
Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law,
Germany
More information about this series at h ttp://www.springer.com/series/11943
Académie Internationale de Droit Comparé
International Academy of Comparative Law
ń
Ewa Bagi ska
Editor
Damages for Violations
of Human Rights
A Comparative Study of Domestic Legal
Systems
Editor
Ewa Bagińska
Department of Civil Law
Gdańsk University
Gdańsk , Poland
This book was supported by a grant awarded to the Editor and fi nanced by the Polish National
Science Centre - the decision no DEC-2013/9/B/HS5/01416.
ISSN 2214-6881 ISSN 2214-689X (electronic)
Ius Comparatum - Global Studies in Comparative Law
ISBN 978-3-319-18949-9 ISBN 978-3-319-18950-5 (eBook)
DOI 10.1007/978-3-319-18950-5
Library of Congress Control Number: 2015953214
Springer Cham Heidelberg New York Dordrecht London
© Springer International Publishing Switzerland 2016
T his work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of
the material is concerned, specifi cally the rights of translation, reprinting, reuse of illustrations, recitation,
broadcasting, reproduction on microfi lms or in any other physical way, and transmission or information
storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology
now known or hereafter developed.
T he use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specifi c statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
T he publisher, the authors and the editors are safe to assume that the advice and information in this book
are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the
editors give a warranty, express or implied, with respect to the material contained herein or for any errors
or omissions that may have been made.
Printed on acid-free paper
Springer International Publishing AG Switzerland is part of Springer Science+Business Media (www.
springer.com)
Pref ace
T his collection is composed of national reports and the general report presented to
the 19th International Congress of Comparative Law, organised by the International
Academy of Comparative Law in Vienna in 2014. The topic ‘damages for the
infringements of human rights’ was assigned to the section on public international
law. The list of all initial reports included twenty reports that came from thirteen
European civil law jurisdictions, including six from post-socialist countries, three
reports from common law countries (the UK, Ireland, the USA), two reports from
mixed jurisdictions (Canada and Israel) and two reports from South America
(Argentina, Brazil). A few of these reports were not revised for publication and
hence do not appear in this volume. Two additional contributions were solicited
solely for this volume: the Dutch law report (written by Jessy Emaus) and the
contribution on EU law (authored by Nina Półtorak). Since the study has been
inadvertently dominated by legal developments in Europe, the law of the EU could
not go unnoticed.
The national experts were requested to write their reports on the basis of a ques-
tionnaire (attached in the A ppendix ), prepared by the editor. The topic relates to the
legal grounds, premises and extent of pecuniary compensation (damages, répara-
tion ) for the violations of human rights in domestic legal systems; hence, it tran-
scends the divides, on the one hand, between private and public law and, on the
other hand, between national and international normative systems. The inherent
intricacy of the topic has made this comparative study an exceptionally challenging
task, even more so as the experts nominated by the respective national committees
are scholars who specialise in different fi elds: public international law, human rights
law, constitutional law and in private law. This book concludes with a comparative
report which is based on the fi ndings contained in all the reports prepared for the
Congress and the two additional reports solicited by the editor.
T he editor is immensely grateful to all the colleagues for their excellent work and
inspiring collaboration. Special thanks go to Jessy Emaus and Nina Półtorak for the
preparation of their illuminating chapters in a short period of time.
v
vi Preface
T he making of this volume would not have been possible without the help of
Paulina Ślufi ńska, assistant professor in the Department of Civil Law, Gdańsk
University. Her tireless work during the process of completing the book deserves
highest praise.
Gdańsk, Poland Ewa Bagińska
Contents
1 Introduction ............................................................................................. 1
Ewa Bagińska
2 Damages for Violation of Human Rights in Croatia ............................ 9
Saša Nikšić
3 Damages for the Infringement of Human
Rights – The Czech Republic ................................................................. 2 5
Pavel Šturma and Veronika Bílková
4 Compensation for Human Rights Violations in Estonia ...................... 4 3
Ene Andresen
5 Les dommages-intérêts pour violation des droits
de l’homme en France ............................................................................ 6 9
Xavier Philippe
6 Damages for the Infringement of Human Rights in Germany ........... 1 01
Andreas von Arnauld
7 Damages for the Infringement of Human Rights
by the Public Authority in Greece ......................................................... 1 37
Ioannis Stribis
8 Damages as Compensation for Human Rights
Violations in Ireland ............................................................................... 1 69
Noelle Higgins
9 Litigating Human Rights Violations Through Tort Law:
Israeli Law Perspective ........................................................................... 1 93
Iris Canor , Tamar Gidron , and Haya Zandberg
vii
viii Contents
10 Looking Back in Anger and Forward in Trust:
The Complicate Patchwork of the Damages Regime
for Infringements of Rights in Italy....................................................... 2 17
Graziella Romeo
11 Damages for Fundamental Rights Violations,
Dutch Perspectives .................................................................................. 2 41
Jessy M. Emaus
12 Damages for the Infringements of Human Rights Under
Norwegian Law ....................................................................................... 2 59
Bjarte Thorson
13 Polish Domestic Remedies Against Human Rights
Violations and Their Interaction with ‘Just Satisfaction’
Awarded by the European Court of Human Rights ............................ 2 89
Michał Balcerzak
14 Damages for Violations of Human Rights:
The Portuguese Legal System ................................................................ 3 07
Maria José Reis Rangel de Mesquita
15 Monetary Compensation for Violations of Human Rights
and Fundamental Freedoms in Slovenia ............................................... 3 29
Samo Bardutzky
16 Special Compensation Regimes for Violations
of Human Rights in Turkish Law: A Fast Track Remedy
or No Remedy at All? .............................................................................. 3 55
Zeynep Oya Usal Kanzler
17 Damages for Violations of Human Rights Law
in the United Kingdom ........................................................................... 3 71
Merris Amos
18 Damages Remedies for Infringements
of Human Rights Under U.S. Law ......................................................... 3 95
Jacques deLisle
19 Action for Damages in the Case of Infringement
of Fundamental Rights by the European Union .................................. 4 27
Nina Półtorak
20 Damages for Violations of Human Rights:
A Comparative Analysis ......................................................................... 4 43
Ewa Bagińska
Appendix: Questionnaire for National Reports ........................................... 479
Index ................................................................................................................. 4 83
Contributors
Merris Amos i s a reader in human rights law in the Department of Law, Queen
Mary University of London, where she teaches UK human rights law and European
human rights law. She is the author of H uman Rights Law Second Edition (Hart:
Oxford, 2014) and of a number of books and articles concerning the Human Rights
Act 1998 and the relationship between national courts and the European Court of
Human Rights. Her recent articles include ‘The dialogue between United Kingdom
courts and the European Court of Human Rights’, I nternational and Comparative
Law Quarterly (2012), 557–584, and ‘The principle of comity and the relationship
between British courts and the European Court of Human Rights’ in Y earbook of
European Law (Oxford: Clarendon, 2009 P. Eeckhout and T. Tridimas (Eds.)). Her
research has been cited and infl uential in a variety of reports, most recently T he UK
and the European Court of Human Rights (London: EHRC, 2012) and A UK Bill of
Rights? The Choice Before Us in the Commission on a Bill of Rights (London:
Ministry of Justice, 2012). From 2006–2013 she was the general editor of the H uman
Rights Law Reports UK Cases.
Ene Andresen is a lecturer of administrative law at the Faculty of Law, University
of Tartu. Previously she worked as an assistant to the chief justice of the Estonian
Supreme Court and as consultant to the Administrative Law Chamber of the same
court. She was a member of the working group of the Estonian State Liability Act
and member of the expert group on corruption formed by the Government of the
Republic of Estonia.
Ewa Bagińska i s professor of civil law and chair of civil law at the School of Law
and Administration, University of Gdańsk, Poland. She was a Fulbright Visiting
Scholar (1998/1999) and NATO Science Fellowship grantee (2000/2001) at the
CUA Columbus School of Law, Washington, DC. She has authored a few books on
products liability, public liability and medical law, as well as over 140 other contri-
butions in the fi eld of civil law and comparative law. Her recent book is entitled
Tort Liability Under Uncertainty and Complexity of Causation. A Comparative
Law Study [in Polish] (Toruń 2013). She is a member of the European Group on
ix