Barnkonventionen och ideellt skadestånd - Barnsligt viktigt?

Sammanfattning: Since the case of NJA 2005 s. 462 a liability to pay damages has developed in case law in case of violations of the European convention on human rights and fundamental freedoms (ECHR) by the Swedish State. This liability also includes violations of chapter 2 of the Instrument of Government, which was first established in the case of NJA 2014 s. 323. The liability both considering ECHR and the Instrument of Government includes non-pecuniary damage. The legislature has because of this case law decided to implement this liability in the Tort Liability Act. Just as the case law, the provision covers non-pecuniary damages. The provision does not include liability in cases of violations of the UN Convention on the Rights of the Child (UNCRC). Since 2020 this convention is part of Swedish law. It is unclear when UNCRC can be invoked by individuals in an action for damages. One problem is that UNCRC does not contain a provision like the one in article 13 in ECHR, which regulates effective remedies. The committee on the Rights of the Child is of the opinion that a requirement of effective remedies is implicit. In the case of NJA 2005 s. 462 article 13 in ECHR was important when the court decided that the State was liable to pay damages. To what extent the articles in UNCRC is self-executing is also an issue that causes problem since individuals cannot invoke the articles in an action for damages if the articles are not self-executing. According to the legislature this issue should be solved in the application of law. Because UNCRC now is part of Swedish law a possible consequence in my opinion is that the convention is considered to be of higher value and therefore can cause liability in case of violations. Also, the opposite effect is possible since the main principle in Swedish tort law considering non-pecuniary damages is that explicit legal support is needed for it to be admitted. From a critical point of view it can be seen as problematic that the legislature when implementing UNCRC in Swedish law did not consider the unclear legal position to be an obstacle for incorporation. These uncertain legal consequences have the effect that the purpose of implementing UNCRC risks not to be fulfilled and the convention to be seen as an empty document which cannot be invoked by individuals. Another issue which has led to this conclusion is that since the convention is not customized for a national legal system it will be hard to apply in practice.