Punitive Damages in Strasbourg

Anne van Aaken/Iulia Motoc (eds), The ECHR and General International Law, Oxford University Press, Forthcoming

U. of St.Gallen Law & Economics Working Paper No. 2016-05

20 Pages Posted: 18 May 2016 Last revised: 23 May 2016

See all articles by Paulo Pinto de Albuquerque

Paulo Pinto de Albuquerque

European Court of Human Rights

Anne van Aaken

University of Hamburg, Law School; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods

Date Written: May 18, 2016

Abstract

"Punitive damages” have long been controversially discussed in national as well as in international law. This is not different for the European Court of Human Rights (the Court). Until now the Court has considered it inappropriate, in accordance with the Court’s Practice Directives of March 2007 and January 2016, to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”. One would thus expect that punitive damages are not used by the Court. But is this really the case? This article finds that the Court has been at the forefront of an international trend, using just satisfaction to prevent further violations of human rights and punish wrongdoing governments. The acknowledgment of punitive damages under the Convention is essential in at least three cases: (1) gross violations of human rights protected by the Convention or the additional Protocols, especially when there are multiple violations at the same time, repeated violations over a significant period of time or a single continuing violation over a significant period of time; (2) prolonged, deliberate non-compliance with a judgment of the Court delivered with regard to the recalcitrant Contracting Party; and (3) the severe curtailment, or threat thereof, of the applicant’s human rights with the purpose of avoiding, impairing or restricting his or her access to the Court as well as the Court’s access to the applicant.

The purpose of this article is first to argue that the aforementioned Practice Directive is no longer up to date in that the Court uses punitive damages implicitly and second that there are well established social science reasons why punitive damages should be used. The idea of “punitive damages” is strongly connected to the effectuation of law. Wherever the enforcement might be weak, “punitive damages” can set the correct incentives for following the law. Punitive damages may serve inter alia to effectuate the inter omnes obligations of states as well as the human rights of the people of the Council of Europe.

Keywords: punitive damages, european court of human rights, strasbourg

Suggested Citation

Pinto de Albuquerque, Paulo and van Aaken, Anne, Punitive Damages in Strasbourg (May 18, 2016). Anne van Aaken/Iulia Motoc (eds), The ECHR and General International Law, Oxford University Press, Forthcoming; U. of St.Gallen Law & Economics Working Paper No. 2016-05. Available at SSRN: https://ssrn.com/abstract=2781397

Paulo Pinto de Albuquerque (Contact Author)

European Court of Human Rights ( email )

Strasbourg, Alsace region
France

Anne Van Aaken

University of Hamburg, Law School ( email )

Johnsallee 35
Hamburg, 20148
Germany

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Research on Collective Goods ( email )

Kurt-Schumacher-Str. 10
D-53113 Bonn, 53113
Germany

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