Ius Comparatum - Global Studies in Comparative Law

Transcription

1 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

2 More information about this series at Académie Internationale de Droit Comparé International Academy of Comparative Law

3 Ewa Bagińska Editor Damages for Violations of Human Rights A Comparative Study of Domestic Legal Systems

4 Editor Ewa Bagińska Department of Civil Law Gdańsk University Gdańsk, Poland This book was supported by a grant awarded to the Editor and financed by the Polish National Science Centre - the decision no DEC-2013/9/B/HS5/ ISSN ISSN X (electronic) Ius Comparatum - Global Studies in Comparative Law ISBN ISBN (ebook) DOI / Library of Congress Control Number: Springer Cham Heidelberg New York Dordrecht London Springer International Publishing Switzerland 2016 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms 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. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The 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)

5 Preface This 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 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 questionnaire (attached in the Appendix ), prepared by the editor. The topic relates to the legal grounds, premises and extent of pecuniary compensation (damages, réparation ) for the violations of human rights in domestic legal systems; hence, it transcends 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 fields: public international law, human rights law, constitutional law and in private law. This book concludes with a comparative report which is based on the findings contained in all the reports prepared for the Congress and the two additional reports solicited by the editor. The 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

6 vi Preface The making of this volume would not have been possible without the help of Paulina Ślufińska, 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

7 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 Pavel Šturma and Veronika Bílková 4 Compensation for Human Rights Violations in Estonia Ene Andresen 5 Les dommages-intérêts pour violation des droits de l homme en France Xavier Philippe 6 Damages for the Infringement of Human Rights in Germany Andreas von Arnauld 7 Damages for the Infringement of Human Rights by the Public Authority in Greece Ioannis Stribis 8 Damages as Compensation for Human Rights Violations in Ireland Noelle Higgins 9 Litigating Human Rights Violations Through Tort Law: Israeli Law Perspective Iris Canor, Tamar Gidron, and Haya Zandberg vii

8 viii Contents 10 Looking Back in Anger and Forward in Trust: The Complicate Patchwork of the Damages Regime for Infringements of Rights in Italy Graziella Romeo 11 Damages for Fundamental Rights Violations, Dutch Perspectives Jessy M. Emaus 12 Damages for the Infringements of Human Rights Under Norwegian Law Bjarte Thorson 13 Polish Domestic Remedies Against Human Rights Violations and Their Interaction with Just Satisfaction Awarded by the European Court of Human Rights Michał Balcerzak 14 Damages for Violations of Human Rights: The Portuguese Legal System Maria José Reis Rangel de Mesquita 15 Monetary Compensation for Violations of Human Rights and Fundamental Freedoms in Slovenia Samo Bardutzky 16 Special Compensation Regimes for Violations of Human Rights in Turkish Law: A Fast Track Remedy or No Remedy at All? Zeynep Oya Usal Kanzler 17 Damages for Violations of Human Rights Law in the United Kingdom Merris Amos 18 Damages Remedies for Infringements of Human Rights Under U.S. Law Jacques delisle 19 Action for Damages in the Case of Infringement of Fundamental Rights by the European Union Nina Półtorak 20 Damages for Violations of Human Rights: A Comparative Analysis Ewa Bagińska Appendix: Questionnaire for National Reports Index

9 Contributors Merris Amos is 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 Human 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, International and Comparative Law Quarterly (2012), , and The principle of comity and the relationship between British courts and the European Court of Human Rights in Yearbook of European Law (Oxford: Clarendon, 2009 P. Eeckhout and T. Tridimas (Eds.)). Her research has been cited and influential in a variety of reports, most recently The 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 she was the general editor of the Human 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 is 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 contributions in the field 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

10 x Contributors Tort Law, the International Academy of Comparative Law and the European Law Institute. She is also a member of the advisory board of the European Review of Private Law. Michał Balcerzak, Ph.D., Dr. habil. is associate professor at Human Rights Department, Faculty of Law and Administration, Nicolaus Copernicus University in Toruń, Poland. He teaches in the areas of international human rights law, protection of national minorities, international judiciary and litigation. His research interests include law of state responsibility and international disaster response law. He serves as deputy member of the Management Board of the EU Agency for Fundamental Rights as well as member of the UN Working Group of experts on people of African descent. Samo Bardutzky is currently postdoctoral research associate ( The Role and Future of National Constitutions in European and Global Governance ) at the University of Kent in Canterbury. He studied law in Ljubljana and Greifswald and obtained his doctorate from the University of Ljubljana in After passing his state examination, he served as legal adviser to the Slovenian Ministry of Justice. In 2012/2013, he was Fulbright Research Scholar at the University of Michigan Law School. Veronika Bílková, Doc. JUDr. Ph.Dr. Ph.D., E.M.A. is associate professor in international law at the Faculty of Law of the Charles University in Prague and a researcher at the Institute of International Relations in Prague. She is the holder of the Diploma in International Law from the University of Cambridge. Since 2010, she has been a member of the Venice Commission of the Council of Europe on behalf of the Czech Republic. She has authored three books and more than 50 articles in Czech, English and French on international law and international relations. Iris Canor is professor of European law, public international law and private international law at the Haim Striks School of Law, Colman, Israel, and an adjunct professor at Europa-Institut, Saarbruecken, Germany. She is a visiting researcher at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, and currently is a Fernand Braudel Senior Fellow, at the European University Institute, Florence, Italy. Maria José Reis Rangel de Mesquita is associate professor of the Faculty of Law of the University of Lisbon (EU law, international law and public law); coordinator of the Jean Monnet Teaching Module European Union s External Action Role in a Global World ( ); judge at the Constitutional Court (since 2012); participating member of the Jean Monnet Centre of Excellence of the University of Lisbon, Faculty of Law ( ); and member of Project on Principles of European Tort Law Public Liability (Institute for European Tort Law, ) and the Direction Board of the AIDA-Portugal. Jacques delisle is the Stephen A. Cozen Professor of Law, professor of political science, deputy director of the Center for the Study of Contemporary China, and codirector of the Center for Asian Law at the University of Pennsylvania. He is the coeditor of The Internet, Social Media and a Changing China (forthcoming 2015),

11 Contributors xi China s Challenges (2014) and Political Changes in Taiwan under Ma Ying-jeou (2014). He also has written on comparative tort law, the use of US legal mechanisms to address human rights abuses abroad and China s engagement with human rights and other international legal norms. Jessy M. Emaus (1985) is assistant professor in private law at Utrecht University, the Utrecht Centre for Accountability and Liability Law (Ucall) and the Utrecht Centre for Regulation and Enforcement in Europe (Renforce), with a special interest in the interaction between noncontractual liability law and European fundamental rights law. She has recently obtained her doctorate with a dissertation on the enforcement of ECHR by means of liability law and introduced in academic literature a new legal basis to enforce fundamental rights more directly and more specifically geared towards ECHR: the concept of the breach of a fundamental right. At this moment she studies and publishes on the responsibility of powerful non-state actors. Emaus is curious to know why and how these actors are made more responsible in law than others. Tamar Gidron is professor of tort law, human rights and comparative law. She was the dean of the Haim Striks Law School, College of Management, for 8 years and is now the head of the Zefat Academic College, Law School, Israel. Noelle Higgins, Dr. is a senior lecturer in law at Maynooth University in Ireland. She undertook her Ph.D. studies at the Irish Centre for Human Rights in Galway, Ireland. She specialises in international law, particularly international human rights law, international humanitarian law and international criminal law. In addition her research also focuses on Irish domestic human rights. Zeynep Oya Usal Kanzler is an assistant professor in human rights law at Koç University Law School in Istanbul, Turkey. Before joining Koç University in 2011, Dr. Usal Kanzler worked as a lawyer at the European Court of Human Rights (ECHR) in Strasbourg. Besides her work at Koç, she works in expert capacity for a variety of intergovernmental and non-governmental organisations, including the United Nations (UN) Women and the Council of Europe. Saša Nikšić He graduated law at the Faculty of Law, University of Zagreb, Croatia (1998), and studied at the T.M.C. Asser Institute in The Hague, the Netherlands, and finished his postgraduate study at the Faculty of Law, University of Zagreb, Croatia. He earned his Ph.D. degree at the Faculty of Law, University of Zagreb, Croatia (2007), and is currently employed as associate professor at the Civil Law Department at the Faculty of Law, University of Zagreb, Croatia. Xavier Philippe Professeur de droit public à la faculté de droit et de science politique de l Université d Aix-Marseille, est aujourd hui directeur de l Institut Louis Favoreu GERJC ( Groupe d études et de recherches sur la justice constitutionnelles comparée ) (Unité Mixte de Recherche du CNRS 7318 ). Il est également Professeur extraordinaire auprès de l Université de Western Cape en Afrique du sud. Il est également expert international dans les processus constituants.

12 xii Contributors Nina Półtorak is professor of the Jagiellonian University in Krakow (Chair of European Law), judge and head of the European Law Department of the Supreme Administrative Court of Poland. Graziella Romeo is assistant professor of constitutional law at Bocconi University. She was visiting scholar and guest lecturer at Fordham Law School, NY. She has authored a monographic work ( La cittadinanza sociale nell era del cosmopolitismo: uno studio comparato, Padova, CEDAM, 2011) and a number of essays on constitutional law and human rights issues, including Measuring cosmopolitanism in Europe: standards of judicial review over non citizens rights, in 3(3) Cambridge J. Int l Comp. L., 2014; The recognition of same-sex couples rights in the US between counter- majoritarian principle and ideological approaches, in Gallo et al. (Eds.); and Same-Sex Couples before National, Supranational and International Jurisdictions, Berlin, Springer, Ioannis Stribis is an associate professor of the University of the Aegean, Faculty of Social Sciences. He holds a Ph.D. from the University of Paris 1 (Pantheon- Sorbonne) and has been a research fellow at the Academy of Athens. He has been the legal adviser of the organisation of the Black Sea Economic Cooperation (BSEC) and legal officer of the Organization for Security and Co-operation in Europe (OSCE). He is the author of several books and articles in the fields of international law, human rights law, European law and international organisations. Pavel Šturma is professor and head of the International Law Department, Charles University in Prague, Faculty of Law. He has been senior research fellow at the Institute of Law, Czech Academy of Sciences, Prague; editor in chief of the Czech Yearbook of Public & Private International Law; lecturer and visiting professor at various universities in Austria, France, Slovakia, etc; member of the UN International Law Commission; and author and/or co-author of 16 books and more than 140 articles and studies in international and European law. Bjarte Thorson is a postdoctoral fellow at the University of Oslo. Besides obtaining his doctorate, on the basis of a dissertation on pure economic loss and a trial lecture on the liability system suggested in the Draft Common Frame of Reference, he has had a diverse practise as a civil and criminal court deputy judge, private attorney specialised in tort and insurance law and senior adviser to the Parliamentary Ombudsman. As a university teacher and researcher, he has focused on constitutional European Union law alongside comparative and national patrimonial law. Andreas von Arnauld is professor of public law, public international and European law at the Faculty of Law, University of Kiel, and codirector of the Walther Schücking Institute for International Law. Previously he held professorships at the University of Münster (Westphalia) and at Helmut Schmidt University/University of the Federal Armed Forces in Hamburg. Haya Zandberg is head of the Civil Litigation Department at the Israel Attorney General Office and a lecturer of criminal procedure and evidence at the Faculty of Law, Hebrew University of Jerusalem