Dr Veronica Fikfak on Damages in the ECtHR

We are happy to kick off a new semester! Our first seminar this semester will be on Tuesday 23 January, 3-5pm, at Room 11.01, David Hume Tower

Dr Veronica Fikfak (University of Cambridge) will speak on “Damages for human rights violations – A practice of commodifying rights?”

The abstract of her talk is as follows:

The proposed paper focuses on remedies for human rights violations, specifically non-pecuniary damages as a feature of the case law of the European Court of Human rights. In particular, I investigate whether the Court’s current approach to damages offers an effective and appropriate means of redressing human rights breaches and deters potential violators from infringing rights further. The paper builds on an empirical quantitative and qualitative analysis of the practice of the European Court of Human Rights, whose approach is often mirrored in domestic jurisdictions, including the UK (see the Ullah approach), France and Germany. The aim of the paper is to uncover how the Court’s approach to damages has influenced the approaches of the different jurisdictions and more specifically, how its approach has affected human rights compliance and deterrence in these countries.

Whilst domestic courts of the 47 Council of Europe Member States, over which the ECtHR has jurisdiction, usually award damages on the basis of scales that are public and mostly clear, this is not the case with the ECtHR. The Court sets out no rules or guidelines as to when individuals are likely to get compensation; it also does not explain which elements of their treatment applicants should emphasise nor how much they should ask for. The uncertain practice of the ECtHR has created a significant legal gap on the international level as well as in the domestic laws of the 47 countries of the Council of Europe. The paper, which I propose to present at the workshop, seeks to fill this gap. Through a statistical analysis of 5,000-7,000 cases of the ECtHR, the first part of the paper will explain when individuals are likely to be compensated for the breach of a human right and determine how much they are likely to receive in damages. More importantly, I intend to show what motivates the Court’s approach and how it perceives its function (ie whether it is seeking to punish states that are repeat violators, whether damages vary depending on the monetary situation of the respondent state, or characteristics associated with the victim, their religion, nationality etc.)

In the second part of the paper, I will show how the Court’s approach impacts states’ practice. Building on behavioural economics, the paper will reveal how the current approach of the ECtHR to damages may be encouraging repeat offenders to pay-off their violations rather than change their behaviour, thus leading to commodification of rights. By fixing a monetary tag on a specific right and thus setting out a potential ceiling to human rights protection, the Court could be preventing better protection of rights in jurisdictions around Europe. In this context, I look at a number of recent cases which suggest that the awards made by the European Court have significantly lowered damages that individuals would get if national courts were left to decide to fix awards on their own. Does the current approach of the Court therefore encourage a perpetuation of problematic state behaviour practice, whilst preventing victims from having their harm assessed properly at the domestic and international level? The conclusion of the paper will speculate how, in light of these findings, the approach to damages or remedies should be changed.