Damages in Wrongful Death Cases in the Light of European Human Rights Law: Towards a Rights-Based Approach to the Law of Damages

To the great dissatisfaction of many personal injury lawyers, in 2010 the Dutch Upper Chamber (Eerste Kamer) rejected a legislative proposal on non-pecuniary loss caused by the death of a loved one, i.e. bereavement damage (so-called affectieschade or Angehörigenscherzensgeld).1 The proposal aimed to introduce a legal basis for compensating bereavement damage, i.e. damages for the next of kin’s non-pecuniary loss: (mere) grief. Until now, the close relatives of victims have no basis for claiming compensation for bereavement damage in the Dutch Civil Code (Burgerlijk Wetboek). A few months after the rejection of the proposal Wijnakker stated that a limited group of next of kin can already find a legal basis in the European Convention on Human Rights (hereinafter: ECHR). She thereby drew attention to judgements of the European Court of Human Rights (hereinafter: ECtHR or the Court) in Dutch private law literature.2 Close relatives, under certain circumstances, find protection in Article 2 in conjunction with Article 13 ECHR as the Court has decided that compensation for nonpecuniary damage should be available as part of the range of redress in the case of a breach of Article 2 ECHR.3 Under Dutch law, according to Article 94 of the Constitution of the Kingdom of the Netherlands (Grondwet), statutory provisions should not be applied if those provisions conflict with provisions of treaties by international institutions that are binding on all persons.4 When confronted with a claim for compensation for bereavement damage, and the defendant is a government body, a judge should not apply the law of damages as far as this law excludes the awarding of damages for mere grief. The judgements of the European Court of Human Rights thus shed new light on the discussion regarding bereavement damage in the Netherlands. Considering the above, the interpretation of the European Convention on Human Rights by the European Court of Human Rights affects the (originally: private) law of damages. Additionally, the Court does not restrict itself to awarding damages for non-pecuniary loss in cases concerning bereavement damage. The Court awards damages for non-pecuniary loss in other cases as well, after having ruled that a Convention right has been infringed. It does not however affect the whole range of the law of damages, as the working sphere of the ECHR is restricted and only deals with the protection of the core values that are protected by the rights in the Convention. The Court is furthermore more reluctant to rule on the tenability of private law provisions than on the tenability of acts and regulations in the public law domain.5 On a national level judges are thus confronted with the case law of the Court that concerns acts or omissions by public authorities. In other words, the judgements of the ECtHR are not rendered between private parties, and the national law of damages, as far as it is applied between private parties, is therefore not affected. National courts, as a consequence, are confronted with two different concepts of damage. An illustration of this difference is the position of next of kin in wrongful death cases. In light of this, the main question to be answered is how the national law of damages could and should be adjusted to remain durable and consistent when confronted with judgements of the ECtHR. We illustrate the need for adjustment by focussing on the next of kin’s non-pecuniary loss under Dutch law, because this topic is, at least in Dutch literature, the most controversial and is still under discussion. A distinction will be made between the traditional discussion on awarding damages for bereavement damage in Dutch literature, on the one hand, and the Court’s decisions on the enforcement of the next of kin’s right to life under Article 2 ECHR, on the other, thereby explaining the different approaches of both sets of regulations, and additionally questioning the current reluctance to interweave both the law of damages and the idea of the enforcement of fundamental rights. We thereby also pay attention to German law to illustrate that the clash between the national law of damages and European human rights law is not solely a ‘Dutch’ problem, but that other Member States deal with the same issue as well. Additionally, German law in particular is interesting because it is also one of the few European systems in which bereavement damage is not a legally relevant damage. Furthermore, the idea of compensation for infringements of the general right of personality (allgemeine Persönlichkeitsrecht) in German law is a legal concept that seems interesting to analyse in the context of the idea of the vindication or enforcement of fundamental rights on the level of the ECHR