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Half measures

John Wadham explains how victims of human rights
violations can use declarations of incompatibility to claim
compensation

15 November 2002

If a court cannot interpret primary legislation in a manner compatible with the European Convention on Human Rights (ECHR), then, although it must give primacy to the statute, the higher courts have the option of making a ‘declaration of incompatibility’. This article considers such declarations from the point of view of the victim of the violation and examines the first declaration that has led to damages. Declarations of incompatability The power to make declarations of incompatibility is only available in the higher courts. If a lower court cannot interpret legislation in a way which conforms with the ECHR, it must follow the legislation and not the ECHR. However, in giving reasons for its decision it will nevertheless have to set out its view that the legislation is incompatible with the ECHR for the litigant to make sense of the decision. The lower court’s opinion that the provision does not comply with the ECHR will not trigger the ‘remedial order...

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