Handhaving van EVRM-rechten via het aansprakelijkheidsrecht. Over de inpassing van de fundamentele rechtsschending in het Nederlandse burgerlijk recht

Abstract

This PhD thesis focuses on how Dutch liability and damages law can contribute to the enforcement of ECHR rights, assuming as a starting point that liability and damages law should be constitutionalised. In other words, the question is how ECHR rights should be enforced through liability and damages law. The answer to this central research question needs reference to the nature of liability and damages law and the nature of ECHR law. There are five key themes that support the description of the nature of both sets of regulations. These themes are the basic principles, the basis, the legal rule, the criteria, and enforcement. The comparison between ECHR law and liability and damages law as it currently stands has resulted in the first part of the conclusion, which is that we should not look for the solution regarding the enforcement of fundamental rights in the liability for unlawful acts law only. An important point in the comparison is the observation that the bases in the two sets of regulations are essentially different. Liability and damages law, on the one hand, is based on the basic principles of to live honestly, not to injure another, to give to each one that which belongs to him and each shall bear his own damage. The basic principles reveal that harm is a core element in liability and damages law as it is currently structured. ECHR law, on the other hand, is based on the basic principles of human dignity and fundamental freedom. These basic principles have made ECHR law a system that aims to prevent rights violations and, where no longer possible, to sanction violations. Protection of fundamental interests is therefore the core element. Current liability and damages law, as opposed to ECHR law, more specifically aims to remedy an unfair situation which consists of harm caused by the disadvantaging party on the disadvantaged party, through the property of the disadvantaged party and the disadvantaging party. Harm and the correlative relationship between disadvantaged and disadvantaging party are therefore the core elements. The comparison of the nature of liability and damages law and the nature of ECHR law, and also the approaches - found in the foreign legal systems as studied – that serve to interconnect the ECHR and liability and damages law, have resulted in a conclusion in two parts. The first part of this conclusion states that we should not look for the solution regarding the enforcement of fundamental rights in the liability for unlawful acts law only, a conclusion that cannot be read without the second part of the two-part answer, which is that a new basis in liability law - in addition to the unlawful act - can be used more directly and more specifically geared towards ECHR rights in order to enforce ECHR rights. The author believes that the nature of fundamental rights justifies a new basis in liability law in addition to the unlawful act, creating a specific approach to enforce fundamental rights: the breach of a fundamental right.