Special Liability Regimes and Human Rights under Belgian Law and the European Convention on Human Rights

This article deals with the question whether and to what extent the human rights principle of equality and the right to a fair trial permit limitations of liability in certain specific fields. Based on the jurisprudence of mainly the Belgian Constitutional Court and the European Court of Human Rights, this article argues that two principles should be taken into account if one creates special liability regimes. The first principle is that the human rights principle of equality and the right to a fair trial will probably be violated if every possibility to receive damages is excluded for specific fields of liability. The second principle is that liability regimes that only offer partial compensation or require a more stringent burden of proof might conflict with the principle of equality where there is no legitimate reason for treating similar situations differently or where the legitimate aim of differentiating is not proportionate to the impact of the differentiation. Concerning this last criterion the presence of a grave or intentional fault seems to legitimate stricter liability rules.

Jaar van publicatie:2014

Trefwoorden:tort law, human rights, right of acces to a court, principle of equality, non-discrimination