Compensation for violations of fundamental human rights
When, and to what extend does individuals have rights to claim compensation for violations of fundamential human rights in the eyes of the constitution, The European Convention on Human Rights and the International Covenant on Civil and Political Rights? This question is asked by Ole-Gunnar Nordhus in his doctoral project. Nordhus is a member of the research group for Tort, Insurance and Social Security Law.
Main content
Project background
The main research question that I will examine in my doctoral thesis, is when and to what extent individuals can claim compensation from the Norwegian authorities for their violations of human rights in the Norwegian Constitution (Grunnloven), the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).
Both the ECHR and ICCPR are incorporated into Norwegian law by the Human Rights Act (menneskerettsloven). If the Norwegian authorities violate the rights in these two conventions, ECHR article 13 and ICCPR article 2 nr. 3 respectively demand that the authorities compensate the damage caused to the affected individual (the right to an effective remedy). Monetary compensation could be one of several forms of compensation.
The European Court of Human Rights has stated that if a violation of ECHR cannot be compensated in an alternative way, ECHR article 13 requires that there must exist a rule in national law that gives individuals a reasonable possibility to claim compensation for non-pecuniary damage caused by the violation. The Human Rights Committee understands ICCPR article 2 nr. 3 in a similar way.
Thesis question
The first question I will focus on in my thesis, is when ECHR article 13 and ICCPR article 2 nr. 3 require the existence in Norwegian law of a rule that gives individuals a right to compensation for violations of ECHR and ICCPR, and how this rule needs to be formed and applied.
Although the Norwegian Constitution (Grunnloven) contains similar rights as in ECHR and ICCPR, there is no provision in the constitution that explicitly gives a right to an effective remedy as in ECHR article 13 and ICCPR article 2 nr. 3. However, the Norwegian Supreme Court has stated that article 92 in the constitution gives the individual a right to compensation for human rights violations. This indicates that article 92 implicitly gives a right to an effective remedy. Therefore I will also examine if and to what extent article 92 demands the existence of rules that give individuals a right to compensation for violations of the human rights in the Norwegian Constitution.
To the extent that ECHR article 13, ICCPR article 2 nr. 3 and article 92 in the Norwegian Constitution demand that individuals can claim compensation for human rights violations, the next question is to what extent these obligations can be fulfilled by the application of Norwegian tort law rules. In those situations where Norwegian tort law rules cannot fulfil the requirements from the constitution and the conventions, it has to be examined whether individuals can claim compensation directly based on ECHR article 13, ICCPR article 2 nr. 3 and article 92 in the Norwegian Constitution, or based on the human right that has been violated. Swedish law could be a basis for comparison in this regard. The Swedish Supreme Court (Högsta domstolen) has in several cases awarded compensation to individuals for non-pecuniary damage, based on ECHR article 13 and the human rights in the Swedish Constitution (Regeringsformen). The question is whether and perhaps to what extent the Swedish case law have transfer value to Norwegian law.
Why this research?
An analysis of the thesis questions mentioned above, will show if there in Norwegian law is a need for new legislation regulating the right for individuals to claim compensation for violations of the human rights in ECHR, ICCPR and the Norwegian Constitution. Therefore I will also discuss whether and perhaps in what way the Norwegian legislator (Stortinget) should enact such legislation. Swedish law could also in this regard be a basis for comparison. On the 1st of April 2018 several new tort law rules came into force in Sweden. These rules regulate the right to seek compensation for damage caused by violations of ECHR. In addition the Swedish government has appointed a committee to analyse the need for legislation regulating the right to claim compensation for violations of the human rights in the Swedish constitution (Regeringsformen). The committee will deliver their report by July 31st 2020.
