Paulo Pinto de Albuquerque, Anne van Aaken, Punitive Damages in Strasbourg (May 18, 2016). Anne van Aaken/Iulia Motoc (eds), The ECHR and General International Law, Oxford University Press, Forthcoming; U. of St.Gallen Law & Economics Working Paper No. 2016-05. Available at SSRN
„Punitive damages” have long been controversially discussed in national as well as in international law. This is not different for the European Court of Human Rights (the Court). Until now the Court has considered it inappropriate, in accordance with the Court’s Practice Directives of March 2007 and January 2016, to accept claims for damages with labels such as “punitive”, “aggravated” or “exemplary”. One would thus expect that punitive damages are not used by the Court. But is this really the case? This article finds that the Court has been at the forefront of an international trend, using just satisfaction to prevent further violations of human rights and punish wrongdoing governments. The acknowledgment of punitive damages under the Convention is essential in at least three cases: (1) gross violations of human rights protected by the Convention or the additional Protocols, especially when there are multiple violations at the same time, repeated violations over a significant period of time or a single continuing violation over a significant period of time; (2) prolonged, deliberate non-compliance with a judgment of the Court delivered with regard to the recalcitrant Contracting Party; and (3) the severe curtailment, or threat thereof, of the applicant’s human rights with the purpose of avoiding, impairing or restricting his or her access to the Court as well as the Court’s access to the applicant.
The purpose of this article is first to argue that the aforementioned Practice Directive is no longer up to date in that the Court uses punitive damages implicitly and second that there are well established social science reasons why punitive damages should be used. The idea of “punitive damages” is strongly connected to the effectuation of law. Wherever the enforcement might be weak, “punitive damages” can set the correct incentives for following the law. Punitive damages may serve inter alia to effectuate the inter omnes obligations of states as well as the human rights of the people of the Council of Europe.