Barnets rätt till effektiva rättsmedel i det svenska rättssystemet : Om ideellt skadestånd och fastställelsedom som möjliga rättsmedel vid överträdelser av barnkonventionen

Sammanfattning

This thesis aims to examine the child's right to effective remedies for violations of the UN Convention on the Rights of the Child (CRC), with a particular focus on two potential remedies under Swedish law: non-pecuniary damages awarded by the State and declaratory judgments. Unlike, for example, the European Convention on Human Rights, the CRC does not contain an explicit provision guaranteeing the right to an effective remedy. However, the UN Committee on the Rights of the Child has consistently emphasized that States Parties are obliged to provide accessible and effective mechanisms for children whose rights have been violated. Firstly, the thesis explores whether the CRC can, in light of the interpretive rules of international law under the Vienna Convention on the Law of Treaties, be understood as encompassing such a right. Through a purposive interpretation of Article 4 CRC, the analysis concludes that the right to an effective remedy can be construed as an implicit obligation arising from the object and purpose of the Convention. Secondly, it is examined whether non-pecuniary damages from the State may constitute such a remedy. The analysis builds on case law from the Swedish Supreme Court recognizing State liability for non-pecuniary damage due to human rights violations in the absence of explicit statutory support. While no precedent exists concerning damages based specifically on the CRC, the study finds that Swedish law does not preclude this possibility. Thirdly, the thesis addresses declaratory judgments as an alternative remedy for children subjected to violations of their Convention rights. The conditions for admitting declaratory actions under Swedish procedural law are analyzed, including the requirements of legal relationship, uncertainty, detriment, and suitability. Recent developments, such as the “Regionens medgivande” and “Klimattalan” cases, are discussed as indicators of an evolving openness toward rights-based declaratory actions. In sum, the thesis shows that both non-pecuniary damages and declaratory judgments may, under current Swedish law, serve as remedies for violations of the CRC, and highlights how incorporation of the Convention reinforces the domestic applicability of international human rights norms and the judiciary’s growing role in safeguarding children’s rights.