Restorative justice and transitional justice at the ECHR.

Source: (2012) International Criminal Law Review. 12(3):313-338.

The entire jurisprudence of the European Court of Human Rights contains just one reference to ‘restorative justice’, in the 2010 case of Đokić v. Bosnia and Herzegovina. The case concerned housing restitution after the conflict in former Yugoslavia and the reference to restorative justice was a quotation from the UN’s ‘Pinheiro Principles’. In its admissibility decision on 31 May 2011 in the case of Sfountouris and Others v. Germany, the European Court of Human Rights confirmed that the Convention imposes upon Contracting States no specific obligation to redress injustice or damage caused by their predecessor. Likewise, the Convention imposes no duty upon states to restore property which was transferred to them before they ratified the Convention (Kopecky v. Slovakia), or even to establish legal procedures in which restitution of property may be sought (Beshiri v. Albania). Yet restorative justice has real potential in transitional contexts, and means far more than property restitution. This article seeks definitional clarity and tracks the relationship between restorative justice and transitional justice in the jurisprudence of the European Court of Human Rights, encompassing not only property restitution cases but also cases on successor trials, amnesties, truth and memorialisation, and lustration. The analysis draws upon recent scholarship on the sometimes antagonistic relationship between successor regimes’ transitional justice policies and their human rights obligations. (author’s abstract_