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Damages in Wrongful Death Cases in the Light of European Human Rights Law: Towards a Rights-Based Approach to the Law of Damages

Authors:

Rianka Rijnhout ,

Utrecht University School of Law
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Jessy M. Emaus

Utrecht University School of Law
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Abstract

European human rights law is superior to the national laws of damages. The case law of the European Court of Human Rights now provides a sufficient reason for national lawmakers to rethink their concept of non-pecuniary damage. The fact remains that the ECtHR in its case law finds a breach of a fundamental right and remedies that breach, whereas the national law of damages affords the possibility of awarding compensation for non-pecuniary loss if the aggrieved party is injured. A conflict results: on the European level a rights-based approach is applied, and on the national level a damage/injury-based approach prevails. In this article we advocate a change in the national law of damages in order to ensure that the law of damages remains durable and consistent when confronted with judgments of the ECtHR: we advocate accepting and incorporating a rights-based approach.
The clash between European human rights law and the national law of damages is clearly expressed in the different approaches regarding bereavement damage. Under Dutch law a proposal aimed at introducing a legal basis for compensation for this type of loss was rejected a few years ago, whereas the ECtHR, starting from its rights-based approach, has found that compensation for non-pecuniary loss should be available as part of the range of redress mechanisms when a government body has infringed a family member’s right to life. An specific argument in the Dutch discussion, i.e. the moral aversion towards compensating and determining grief and suffering, can be overcome by not making a link with grief and suffering but instead taking one’s legal position as a starting point, e.g. the breach of the right to life. A rights-based approach not only supports the idea that any rights infringed should be remedied, but also implies a moral dismissal.

DOI: http://doi.org/10.18352/ulr.286
How to Cite: Rijnhout, R. & Emaus, J.M., (2014). Damages in Wrongful Death Cases in the Light of European Human Rights Law: Towards a Rights-Based Approach to the Law of Damages. Utrecht Law Review. 10(3), pp.91–106. DOI: http://doi.org/10.18352/ulr.286
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Published on 03 Jul 2014.
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