Compensation and Human Rights (from a French perspective) (original) (raw)
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Réparation et droits de l'homme (point de vue français)
2011
International audienceIn French law, an award of damages is a means to enforce human rights, such that the breach of such a right urges the payment of compensation. This situation is reinforced by the fact that the European Court of Human Rights alone has the means to ensure the protection of the rights guaranteed by the European Convention. Moreover, a strong debate has occurred on whether to consider the right to obtain compensation in the form of damages as a fundamental right or a human right. This phenomenon, which may be called ‘ fundamentalisation’ (in French: ‘ fondamentalisation’) of compensation is the primary focus of this article
Utrecht Law Review, 2014
Damages in Wrongful Death Cases in the Light of European Human Rights Law: Towards a Rights-Based Approach to the Law of Damages 1.2. The key question and the aim of this contribution Considering the above, the interpretation of the European Convention on Human Rights by the European Court of Human Rights affects the (originally: private) law of damages. Additionally, the Court does not restrict itself to awarding damages for non-pecuniary loss in cases concerning bereavement damage. The Court awards damages for non-pecuniary loss in other cases as well, after having ruled that a Convention right has been infringed. It does not however affect the whole range of the law of damages, as the working sphere of the ECHR is restricted and only deals with the protection of the core values that are protected by the rights in the Convention. The Court is furthermore more reluctant to rule on the tenability of private law provisions than on the tenability of acts and regulations in the public law domain. 5 On a national level judges are thus confronted with the case law of the Court that concerns acts or omissions by public authorities. In other words, the judgements of the ECtHR are not rendered between private parties, and the national law of damages, as far as it is applied between private parties, is therefore not affected. National courts, as a consequence, are confronted with two different concepts of damage. An illustration of this difference is the position of next of kin in wrongful death cases. In light of this, the main question to be answered is how the national law of damages could and should be adjusted to remain durable and consistent when confronted with judgements of the ECtHR. We illustrate the need for adjustment by focussing on the next of kin's non-pecuniary loss under Dutch law, because this topic is, at least in Dutch literature, the most controversial and is still under discussion. A distinction will be made between the traditional discussion on awarding damages for bereavement damage in Dutch literature, on the one hand, and the Court's decisions on the enforcement of the next of kin's right to life under Article 2 ECHR, on the other, thereby explaining the different approaches of both sets of regulations, and additionally questioning the current reluctance to interweave both the law of damages and the idea of the enforcement of fundamental rights. We thereby also pay attention to German law to illustrate that the clash between the national law of damages and European human rights law is not solely a 'Dutch' problem, but that other Member States deal with the same issue as well. Additionally, German law in particular is interesting because it is also one of the few European systems in which bereavement damage is not a legally relevant damage. Furthermore, the idea of compensation for infringements of the general right of personality (allgemeine Persönlichkeitsrecht) in German law is a legal concept that seems interesting to analyse in the context of the idea of the vindication or enforcement of fundamental rights on the level of the ECHR.
France: French Tort Law in the Light of European Harmonization
Journal of Civil Law Studies, 2013
This inaugural chronicle of French law will focus on tort law or civil liability, to use civilian terminology. The first section presents forthcoming legislative evolution, commenting on two draft reforms that have not been debated in the National Assembly but are receiving much doctrinal attention inside and outside the country. The second section discusses a few recent cases. Both sections place French recent developments in the light of European Harmonization, particularly the Principles of European Tort Law, published in 2005 by the European group on Tort Law, 1 of which the author is a member, and the Draft Common Frame of Reference (DCFR), compiled under the supervision of the European Commission. 2 I. THE DRAFT REFORMS OF FRENCH TORT LAW A. The Draft Revision of the French Civil Code Tort Provisions 3 At the Napoleonic time, French tort law was codified in five Civil Code articles, articles 1382 to 1386 of a chapter entitled "Of Delicts and Quasi-Delicts." These articles contain general clauses that have served as the basis for the development of a formidable and abundant jurisprudence. Law teachers find in this short chapter of Book III their best examples when they want to illustrate the creativity of the courts and the interaction of law professors and judges in the creation of the law. Legislative work has been very limited in the 150 years that followed the enactment of the Code civil des Français. Four of the five Code articles remain totally
Compensation for Individual Prejudice in European Litigation of Human Rights
European Journal of Law and Public Administration
This paper aims at presenting some problems regarding individual prejudice, by invoking the European Convention on Human Rights. Starting from the fact that the Convention lies in the approach of positive law in the sense of creating a legal regime of rights and freedoms by establishing a system of protection through legal proceedings 2 , of the individual, acting as a guarantor, jurisprudence exercise transferred the interest for repairing damages caused by the violation of rights that require satisfaction of some compensation measures in the form of damages. So, repairing methods are achieved by equitable satisfaction.
in M. Sitek, L. Tafaro, M. Indellicato (a cura di), From human rights to essential rights, Józefów, 2018
One of the fundamental rights is the right to respect for private and family life. This right is connected, among other things, with the issue of the bonds of the people who are closest to us. Family ties are therefore a fundamental value. Protecting these ties can take different legal forms and tools. Satisfactory protection of these ties is an important challenge for contemporary legislators. This applies, inter alia, to civil law mechanisms, which should provide, among other things, for compensation for the infringement of family ties. Recently, however, more and more damage of this kind has been caused and more doubts have been raised. They concern, for example, whether, where, as a result of a tort or delict, a victim suffers serious damage to his health and the victim's vegetative condition results in such damage, provision should be made in the legal system for a mechanism of compensation for such damage to persons closest to the victim. The authors look at these issues from the perspective of two different legal systems, with different experiences in this area, discussing, among others, the latest achievements of national legislators and seeking answers to the question of the common future of law in Europe in this area.