Tort as Remedial Action Against Breaches of the ECHR - A Study of Constitutional Rights Using the Impact of the ECHR in Swedish Constitutional and Tort Law

Abstract: The aim of this thesis is to investigate whether tort liability claims against public authorities for breaches of the ECHR can be defined as a constitutional right in Swedish law. The theoretical definition of what constitutes a constitutional right is constructed through elements of Robert Alexy’s A Theory of Constitutional Rights. The theory is applied on the current applicable law regarding the status of the ECHR in Swedish constitutional law and the impact of article 13 ECHR in Swedish tort law. The status of the ECHR in Swedish constitutional law and the impact of article 13 ECHR in Swedish tort law is determined through traditional legal dogmatic method and vertical comparative method. The character and historic aspects of Swedish constitutional law show that constitutional rights and rights in general have enjoyed scarce attention and significance. The preparatory works to the incorporation act of the ECHR (Lagen (1994:1219) om den europeiska konventionen angående skydd för de mänskliga rättigheterna och de grundläggande friheterna) furthermore explicitly stated that the ECHR was not intended to be incorporated as part of Swedish constitutional law. However, the author interprets current constitutional law as diverging from the previous legal conceptions regarding the status of the ECHR and rights in general. The guarantee stated in 2:19 § RF, the Swedish Supreme Court’s established case law and the doctrinal elements show that the ECHR currently holds a quasi-constitutional status in Swedish law. The right to an effective remedy according to article 13 of the ECHR currently states that a remedy shall be accessible, practically available to individuals, and offer a reasonable chance of success. Decisions or judgments of remedy must further be issued within a reasonable time and be possible to execute. There is however no further definition of what constitutes an effective remedy according to article 13 ECHR. Mechanisms investigating and enabling individuals to obtain tort liability and compensation for suffered non-pecuniary damages due to breaches of article 2 and 3 ECHR are however called for according to the ECtHR’s case law. The Swedish Supreme Court’s case law shows a greater influence of the ECHR and the precedence set by the ECtHR when assessing tort liability for public authorities because of breaches of the ECHR. Legislative amendments have been suggested in SOU 2010:87, but no changes are currently underway. The precedence of the Swedish Supreme Court regardless currently provides individuals the possibility of issuing tort liability claims against public authorities for breaches of the ECHR according to 3:2 § SkL. The author finds that article 13 ECHR is a constitutional right by applying Alexy’s theory of constitutional rights in relation to the status and impact of the ECHR and article 13 ECHR in Swedish law. Article 13 is approached and anlysed as a subjective and positive right stating entitlements for individuals. The author finds however that there is no constitutional right to launch tort liability against public authorities for breaches of the ECHR in Swedish law. Such mechanisms are depending on breaches of article 2 and 3 of the ECHR and not necessarily part of the scope of article 13 ECHR.