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Skadestånds- och konventionsrättslig konformitet: En analys av EKMR:s införlivande i svensk privaträttslig skadeståndsrätt utifrån ett systemteoretiskt perspektiv
Stockholm University, Faculty of Law, Department of Law.
2020 (Swedish)Independent thesis Advanced level (professional degree), 20 credits / 30 HE creditsStudent thesisAlternative title
Conformity in torts and rights (English)
Abstract [en]

The European Convention on Human Rights was ratified by Sweden in 1952. Since then it has been made clear that Sweden, as a contracting state, can be held accountable for infringements of its constituent’s human rights. Such a claim can be pursued using two different systems of torts. On the one hand, it is possible for an individual to lodge an application with the European Court of Human Rights. On the other hand, there is a liability rule in the Swedish Tort Liability Act enabling private parties to sue the state or a municipality when there has been a damage because of such a violation.

The purpose of the following paper is to see what impact the European Convention on Human Rights have on torts in private relations. Even if one private party could not violate another’s human rights, the system of dispute resolution – the Swedish courts – is bound by the convention. This indicates that the two systems of torts, the Swedish and that of the European Court of Human Rights, are intertwined. These two systems will be analysed and compared.

The paper will apply a methodological perspective in pursuit of finding similarities and differences in the two systems. By looking at different aspects and details, and from these form inductive generalizations, a theory of conformity will be presented. The result of this analysis will be that the European Convention of Human Rights is a fluid and amorphous instrument, and its content cannot be fixed. This means that a national system of sanctions for violations of these rights, must be equally amorphous. Having regard to the need of legal certainty, sanctions based solely on the convention are ill-fitted for private parties. However, the functions and purposes of the different systems of torts indicate that there are several ways in which the practice of the European Court of Human Rights may influence the native Swedish system of torts. These influences also affect the way in which private disputes can be resolved.

The paper is divided into three separate parts. In Part I, the Swedish system of tort liability is laid out. The presentation will be structured as an analysis of four basic elements of a Swedish tort assessment. Part II will focus on the European Convention on Human Rights. This part will be divided between a presentation of the jurisprudence of the European Court of Human Rights on the one hand and the application of the convention in Sweden on the other. Part III will offer a conclusion of the paper, where the structure will mimic that of Part I, offering suggestions on how the European Convention on Human Rights may influence a Swedish tort assessment in private relations.

Place, publisher, year, edition, pages
2020. , p. 91
National Category
Law (excluding Law and Society)
Identifiers
URN: urn:nbn:se:su:diva-178309OAI: oai:DiVA.org:su-178309DiVA, id: diva2:1388138
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Examiners
Available from: 2020-02-04 Created: 2020-01-23 Last updated: 2020-02-14Bibliographically approved

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