Changing State Behaviour: Damages before the European Court of Human Rights

Abstract

Regardless of the efforts undertaken through the many reforms of the European Convention system, non-compliance with the judgments of the European Court of Human Rights remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the European Court of Human Rights should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court’s approach fails to comply with any(!) of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.