Skadestånd från stat och kommun – Från en inskränkt möjlighet till ersättning till ett rättsmedel för överträdelser av mänskliga rättigheter

Sammanfattning: The purpose of this thesis is to investigate how the liability of public bodies have developed since the introduction of the Tort Liability Act. The investigation is mostly built upon current and previous legislation, legislative history, court practice and legal literature. The thesis is divided into three parts. The first part discusses the development of the Tort Liability Act, the second part investigates the influence of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) on the indemnity liability of public bodies and the third part describes a bill that proposes the increased liability for public bodies. Initially, the liability of the public bodies was highly restricted since it was regarded as a threat to the public sovereignty if the state would be liable to pay damages caused by the negligent exercise of public authority. The main regulation established that damages caused by public bodies within the negligent exercise of authority will be compensated. However, there were exceptions to limit the liability. Some exceptions were removed over time from the law and a new legislation about incorrect authority information passed. The expansion of the liability was dependent on technical, social and economic development that caused the public bodies to interfere more often with the living condition of the individual. Faulty interventions by public bodies was expecting to increase the risk of economic losses for the individual. Therefore, it was necessary to increase the responsibility of the public bodies. In correlation with the Swedish entrance into the European Union, the ECHR was incorporated into national law. Since the 1980’s, the ECHR was already taken into consideration by the Supreme Court and the Supreme Administrative Court. It was seen as a necessity to incorporate the ECHR so that it could be directly applicable by authorities and courts but also to increase the protection of human rights and fundamental freedoms. It was already observed by the government committee that the Swedish law of tort may not fulfill the qualifications of the effective remedies in the ECHR. However, it was not investigated further. The questions concerning the possibilities of receiving compensation for non-financial damages due to breaches of the ECHR became heavily debated after the turn of the millennium. In 2005, the Supreme Court approved the first claim for non-financial damages with support from the ECHR. Thereafter, the Supreme Court also approved compensation for a claim founded on the Instrument of Government. The bill that was announced by the government the fall of the 2017 partially implicates a codification to the court practice towards breaches if the ECHR established by the supreme court. From this, one can conclude that the possibility to receive compensation from the public bodies has gone through major changes since the Tort Liability Act was passed. The liability of public bodies increased over time, which resulted in a greater interference with the individuals living condition. Since the ECHR became a part of Swedish law, compensation for non-financial damages have been put into the foreground. The government have put forward a new legislative bill on amendment to the Tort Liability Act that will strengthen the legal protection for the individual.