Moral damages in public law with particular reference to remedies arising from human rights action

Abstract

This study aims at giving a picture of the evolution of awards for non-pecuniary damages under the European Convention on Human Rights and on a domestic level under the Constitution of Malta. It briefly compares the judiciary’s understanding of moral damages in cases under the law of torts and differently in cases involving breaches of Fundamental Rights and Freedoms. It looks at how the Judges of the European Court of Human Rights interpreted the Convention and laid down the practice for non-pecuniary damages awards. The study also reviews the positive obligation of State parties to adopt measures that will ensure the protection of the Rights and Freedoms of individuals as protected by the Convention. The study investigates decisions of the ECHR in an attempt to establish the Court’s reading of what will constitute ‘Just Satisfaction’ as required under Article 41 of the Convention according to the severity of the consequences of the breach. It also discusses whether it is time now to depart from the Practice that in some cases a declaratory award by itself amounts to ‘just satisfaction’ and argues for an award for each time that a breach is found. The aim of reparation is driven by the principle of ‘restitutio in integrum’ however, can the finding of the breach ever put the individual back to the situation he was in before the breach occurred? Judgements of the ECHR also gave an interpretation to what should amount to ‘effective remedy’ under Article 13. The study then examines how the Maltese Courts adopted the interpretation of the Convention by the ECHR and applied it to domestic Cases with particular attention to the salient case of Brincat and Others vs Malta. The study follows with a brief comparative study of how some different European countries view non-pecuniary damages in their legal order. In conclusion the study proposes a change to the Maltese law on tort in a way to embrace the possibility of non-pecuniary awards. The Study also promulgates the idea that since the violation of a human right is regarded as being more severe and since the guiding principle is equity and the consideration of what is just, fair and reasonable then non-pecuniary damages should always be awarded whenever a breach is found.