Regardless of the efforts undertaken through the many reforms of the European Convention on Human Rights system, non-compliance with the judgments of the European Court of Human Rights (ECtHR) remains a major problem for the Council of Europe. This article asks how we can change state behaviour and what role, if any, could damages play in this context. First, the article focuses on how the choice of remedy affects compliance and why aggravated or punitive damages look like an ideal option to nudge states into compliance. I explore recent arguments by scholars and judges who argue that the ECtHR should actively shift its approach (or perhaps already has) to nudge state behaviour towards compliance and prevention of future violations. Based on my empirical research, I show that the current case law presents several obstacles to the introduction of such damages. Building on the economic analysis of the law and insights from behavioural sciences, I reveal how the Court's approach fails to comply with any of the elements needed to incentivize states to change their behaviour. I finally question to what extent aggravated or punitive damages can be efficient within a system that relies on voluntary compliance.

Although the concept of human dignity is absent from the text of the European Convention on Human Rights, it is mentioned in more than 2100 judgments of the European Court of Human Rights. The judges at the Court have used dignity to develop the scope of Convention rights, but also to signal to respondent states just how serious a violation is and to nudge them toward better compliance. However, these strategies reach dead ends when the Court is faced with government submissions that are based on a conception of dignity that is different from the notion of human dignity relied on by the Court. Through empirical analysis and by focusing on Russia, the country against which the term dignity is used most frequently, the paper maps out situations of conceptual contestation and overlap. We reveal how the Court strategically uses mirroring, substitutes dignity for other Convention values, or altogether avoids confrontation. In such situations, the Court’s use (and non-use) of dignity becomes less about persuading states to comply with the Convention and more about preserving its authority and managing its relationship with states.

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AFTER McCann and Others v the United Kingdom (Application no. 18984/91) (1995) ECHR 31, in which the European Court of Human Rights first read into Article 2 the procedural obligation of effective investigation, Mustafa Tunç and Fecire Tunç (Application no. 24014/05), 14 April 2015, is perhaps one the most interesting decisions on the nature of the obligation to conduct an effective investigation in the Court's recent history. The Court, through its case law, has clarified that, when individuals have been killed by the state or a private party, the Contracting Parties have to undertake an investigation under Article 2, which has to be independent, adequate, prompt, and publicly scrutinised. It has been unclear, however, whether the element of independence had to meet criteria similar to those under Article 6, which guarantees a fair trial, or whether a lower standard was sufficient for an investigation to be considered effective in the context of Article 2. The Strasbourg court went back and forth on the issue (even adopting an absolutist approach in Al-Skeini and Others v the United Kingdom (Application no. 55721/07) (2011) ECHR 1093) and it was not until Mustafa Tunç that the issue of independence under Article 2 was addressed head-on.