Transitional Justice in The Case Law of The European Court of Human Rights

The International Journal of Transitional Justice, Vol.
5, 2011, 282–303,
doi:10.1093/ijtj/ijr010
Transitional Justice in the Case
Downloaded from https://academic.oup.com/ijtj/article-abstract/5/2/282/2357036 by UNIVERSITAT POMPEU FABRA user on 23 May 2019

Law of the European Court
of Human Rights
Eva Brems*
Abstract
International human rights law provides minimum requirements for government behav-
ior in all spheres of policy, including a government’s efforts to deal with the legacy of a
previous regime and/or a violent conflict. To some extent, the creation of supranational
human rights protection mechanisms after World War II in itself can be considered a
transitional justice effort. This is particularly the case in Europe, where the European
Convention on Human Rights (ECHR) was adopted in 1951, only a few years after
the end of the war. Since its adoption, ECHR case law related to transitional justice
has included hundreds of judgments and decisions dealing with a wide range of issues,
mainly compensation and restitution, but also prosecution, lustration, memory and
truth. Situations that have been addressed include the legacy of the World War II, the
legacy of Communist regimes in Central and Eastern Europe and the aftermath of
the war in the former Yugoslavia. This case law sets out a number of standards and
criteria that warrant more attention than they have received in the field of transitional
justice.
Introduction
International human rights law sets out minimum requirements for government
behavior in all spheres of policy, including governments’ efforts to deal with the
legacy of a previous regime and/or a violent conflict. As human rights are in-
tended to guarantee the basic conditions of human dignity, this seems entirely
appropriate. Human rights violations of the past have to be addressed within
a framework that is itself in full compliance with human rights values and stand-
ards. Yet, this is not self-evident in practice. For those who design peace agree-
ments and transitional justice mechanisms, human rights norms are not
necessarily a priority, particularly when set against the pressing concerns of
peace, security, stability and social cohesion.
When a Grand Chamber of the European Court of Human Rights (ECtHR)
recently held that a constitutional arrangement excluding Roma and Jewish in-
dividuals from standing for election to parliament or the presidency in Bosnia and
* Human Rights Centre, Ghent University, Belgium. Email: eva.brems@ugent.be
! The Author (2011). Published by Oxford University Press. All rights reserved.
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Transitional Justice in ECtHR Case Law 283
Herzegovina was discriminatory,1 the finding was self-evident in light of the

Court’s case law. Yet, the decision invalidated a crucial part of the 1995 Dayton
Peace Agreement, which led to a power-sharing agreement among Bosniaks,

Croats and Serbs in Bosnia. One dissenter within the Court was so enraged by
this result that he condemned the judgment as ‘an exercise in star-struck
mirage-building which neglects to factor in the rivers of blood that fertilized
the Dayton Constitution.’2
As is the case in other complex fields of policy that require an interdisciplinary
approach, there may be some justification for resistance to giving the final word
to judges, who rule by definition from a narrow legal viewpoint. In the emerging
international normative framework of transitional justice, however, human
rights norms and mechanisms have an important role to play. To a certain
extent, the creation of supranational human rights protection mechanisms after
World War II can itself be considered a transitional justice effort, as they were
intended to prevent repetition. This is particularly true in Europe, where the
European Convention on Human Rights (ECHR), formally the Convention for
the Protection of Human Rights and Fundamental Freedoms, was adopted in
1951, only a few years after the end of the war.
The ECHR case law relating to transitional justice includes hundreds of judg-
ments and decisions dealing with a wide range of issues, chiefly compensation
and restitution, but also prosecution, lustration, memory and truth. The most
important situations the system has addressed are the legacy of World War II; the
legacy of Communist regimes in Central and Eastern Europe; and the aftermath
of the war in the former Yugoslavia. In all these cases, the relevant states joined the
ECHR system only after a period of political transition. As the temporal jurisdic-
tion of the ECtHR does not extend to events predating the entry into force of the
ECHR for the country concerned, the transitional justice-related case law is
limited in its impact on positive normativity. As a whole, however, it sets out a
number of standards and criteria that cannot be ignored by any of the actors
involved. Before analyzing this case law, the article will briefly examine the ap-
propriate role of an international human rights court such as the ECtHR in
reviewing domestic transitional justice mechanisms.
The Role of the ECtHR in Domestic Transitional Justice

The ECtHR’s work on transitional justice can be situated in a number of fields of
tension that are not specific to transitional justice case law but rather constitute
permanent challenges for the Court.
1
Sejdić and Finci v. Bosnia and Herzegovina, App. Nos. 27996/06 and 34836/06, ECtHR (Grand
Chamber) (22 December 2009). All case law of the ECtHR can be found in the HUDOC database
on the Court’s website, http://www.echr.coe.int/ECHR/EN/Header/Case-Law/Decisions+and+
judgments/HUDOC+database/ (accessed 6 April 2011).
2
See the dissenting opinion of Judge Giovanni Bonello in Sejdić and Finci v. Bosnia and Herzegovina,
App. Nos. 27996/06 and 34836/06, ECtHR (Grand Chamber) (22 December 2009), 54.
International Journal of Transitional Justice, Vol. 5, 2011, 282–303

284 E. Brems
The Judicial versus the Political

All courts, in particular those adjudicating on fundamental rights, have to find
the appropriate balance between judicial restraint and judicial activism.3 In con-

tinental Europe, dominant interpretations of the separation of powers doctrine
resist the idea of judges having the final say in highly political matters, which are
considered the exclusive realm of elected officials. It might be argued that tran-
sitional justice arrangements are the result of high-level political negotiations
among political parties or even among international delegations, and that for
this reason a judicial body should show the utmost restraint in dealing with
such arrangements. In this line of reasoning, the political bodies of the Council
of Europe (the Committee of Ministers and the Parliamentary Assembly) as well
as its technical programs have more legitimacy in dealing with transitional justice
issues.4
The ECtHR’s practice in ‘politically sensitive’ cases has been mixed.5 For in-
stance, while it has repeatedly avoided having to rule on abortion, the Court has
issued strong rulings on other politically delicate matters, such as the Kurdish
conflict,6 the Chechen conflict7 and same-sex adoption.8 As a result, it follows
that the Court will not hesitate to submit transitional justice measures to
European human rights scrutiny. Yet, the role of the Council of Europe’s political
bodies can be seen as more important in this area, as they do not depend on
applications to address a matter and are not hampered by technical obstacles,
such as the issue of jurisdiction.9 For example, Serbia’s postaccession cooperation
program, supervised by the Committee of Ministers, obliges the state to prosecute
war crimes and crimes against humanity, as well as to cooperate fully with the
International Criminal Tribunal for the former Yugoslavia (ICTY).10
3
Dragoljub Popovic, ‘Prevailing of Judicial Activism over Self-Restraint in the Jurisprudence of the
European Court of Human Rights,’ Creighton Law Review 42 (2009): 361–396.
4
See, for example, the post conflict program of the Council of Europe’s Directorate of Democracy
and Political Affairs, http://www.coe.int/t/dgap/progCoop_en.asp (accessed 6 April 2011).
5
See, for example, Marie-Bénédicte Dembour, ‘The Convention in a Realist Light,’ in Who Believes
in Human Rights? Reflections on the European Convention, ed. Marie-Bénédicte Dembour
(Cambridge: Cambridge University Press, 2006).
6
Among others, Menteş and Others v. Turkey, Rep. 1997-VIII, Fasc. 59, ECtHR (Grand Chamber)
(28 November 1997); Tanrikulu v. Turkey, App. No. 23763/94, ECtHR (Grand Chamber) (8 July
1999); Öcalan v. Turkey, App. No. 46221/99, ECtHR (Grand Chamber) (12 May 2005).
7
Among others, Isayeva and Others v. Russia, App. Nos. 57947/00, 57948/00 and 57949/00, ECtHR
(24 February 2005); Chitayev v. Russia, App. No. 59334/00, ECtHR (18 January 2007); Ibragimov
and Others v. Russia, App. No. 34561/03, ECtHR (29 May 2008).
8
EB v. France, App. No. 43546/02, ECtHR (Grand Chamber) (22 January 2008).
9
For a brief overview of the role of the Council of Europe in post-communist transitions, see, Steven
Greer, The European Convention on Human Rights. Achievements, Problems and Prospects
(Cambridge: Cambridge University Press, 2006).
10
Council of Europe Office in Belgrade, ‘Serbia: Compliance with Obligations and Commitments
and Implementation of the Post-Accession Co-operation Programme: CoE Committee of
Ministers’ 4th Report,’ http://www.coe.org.rs/eng/news_sr_eng/?conid=1176 (accessed 6 April
2011). Also see, Victor Peskin and Mieczysław P. Boduszyński, ‘Balancing International Justice
in the Balkans: Surrogate Enforcers, Uncertain Transitions and the Road to Europe,’ International
Journal of Transitional Justice 5(1) (2011): 52–74.

The Supranational versus the National

As a supranational body, the ECtHR’s role in human rights monitoring is sub-
sidiary to that of the domestic courts in the states parties to the ECHR.11 In the

Court’s case law, the principle of subsidiarity has been expressed in the doctrine of
a ‘margin of appreciation’ of national authorities. The Court consistently recog-
nizes the existence of this margin of discretion, the width of which can vary. When
the margin is broad, practice within Europe can vary widely, as each state strikes
its own balance between the right at stake and other interests that may restrict that
right.12 When the Court rules on transitional justice, arguments for both a narrow
and a wide margin may be found. On the one hand, there may be a need to restrict
the margin of appreciation to the extent that the case concerns remedies for
serious human rights violations. Indeed, in the ECtHR’s case law, no room is
made for a margin of appreciation in the context of the prohibition of torture13 or
the right to life. On the other hand, a clear trend has emerged against a ‘one size
fits all’ approach in transitional justice, emphasizing the importance of national
and local contexts in shaping adequate transitional justice initiatives.14 Arguably,
contextualized transitional justice requires a broad domestic margin of appreci-
ation. Whether the Court follows this line of reasoning is one focus of the case law
analysis that follows.
Positive Normativity: What a State Must Do after

Transition
Faced with state inaction or perceived inadequate responses by new regimes to
past suffering, survivors of serious violations committed during World War II or
under Communist regimes have petitioned the ECtHR. Many of their claims have
been found inadmissible on account of the limits of the Court’s jurisdiction
ratione temporis. The Court can only deal with events that occurred after the
entry into force of the ECHR for the state concerned.15 For example, a case
11
On this topic, see, Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in
the European Convention on Human Rights (The Hague: Martinus Nijhoff, 2009).
12
On the margin of appreciation (see ibid.) with numerous references, particularly, Eva Brems, ‘The
Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights,’
Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 56 (1996): 240–314; Eva Brems,
‘The Margin of Appreciation Doctrine of the European Court of Human Rights: Accommodating
Diversity within Europe,’ in Human Rights and Diversity: Area Studies Revisited, ed. David P.
Forsythe and Patrice C. McMahon (Lincoln, NE: University of Nebraska Press, 2003).
13
David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, Harris, O’Boyle & Warbrick: Law of the
European Convention on Human Rights, 2nd ed. (New York: Oxford University Press, 2009).
14
David Bloomfield, Teresa Barnes and Luc Huyse, eds, Reconciliation after Violent Conflict: A
Handbook (Stockholm: International IDEA, 2003); ‘The Rule of Law and Transitional Justice in
Conflict and Post-Conflict Societies: Report of the Secretary-General,’ UN Doc. S/2004/616
(2004).
15
The ECHR entered into force on 3 September 1953 for Denmark, Germany, Iceland, Ireland,
Luxemburg, Norway, Sweden and the UK. According to Art. 59(2), the ECHR enters into force for
a ratifying state on the day of the submission of the instrument of ratification by the state
concerned.

286 E. Brems
concerning the Bulgarian Communist regime’s repression of the Turkish minor-

ity between 1984 and 1989, including killings, unlawful detention and forced
changes of name, was dismissed because Bulgaria only ratified the ECHR in

1992.16 Likewise, a woman who was arrested as a 12-year-old and subjected to
five months of forced labor in the aftermath of World War II because her mother
was of German descent was unable to claim compensation in Strasbourg because
complaints against Poland can only address events that occurred after 30 April
1993.17
An interpretation of the ECHR’s provisions that would overcome the obstacle
of temporal jurisdiction is not inconceivable, and applicants have advanced ar-
guments to this effect. For example, compensation for compulsory labor during
mandatory military service under Communist regimes by individuals considered
potential enemies of communism was claimed not under the prohibition of
forced labor (Article 4) but under the right to a fair trial (Article 6) and property
rights (Article 1 of Protocol No. 1). The ECtHR has not wished, however, to
engage in such innovative interpretations, which would either entail the creation
of substantive rights under a procedural provision or the protection of the right to
acquire possessions under a provision intended to protect existing possessions.18
The UN Human Rights Committee, using the nondiscrimination provision in
Article 26 of the International Covenant on Civil and Political Rights (ICCPR),
has adopted a different approach, based on the continuation of the violation
under the new regime.19 Hence, it may be argued that the ECtHR’s denial of
temporal jurisdiction is a choice for which an alternative is available.20
Prosecute Perpetrators of Terror and Violent Repression

When temporal restrictions do not apply, the first obligation under the ECHR in
dealing with the previous regime’s serious human rights violations concerns
criminal prosecution of perpetrators responsible for the killing of civilians, dis-
appearances, torture and similar offences. The right to life (Article 2) includes a
procedural obligation to investigate deaths and disappearances and to identify
and punish those responsible.21 A similar procedural obligation exists under the
prohibition of torture (Article 3).22 Even when the events in question occurred
before the ECHR entered into force for the state concerned, the Court may be able
to address the issue of procedural obligations to the extent that an important part
16
Harun Abiloglu and 96 Others v. Bulgaria, App. No. 39553/98, ECmHR (20 May 1998).
17
Siewert v. Poland, App. No. 44988/98, ECtHR (dec.) (21 November 2000).
18
JS and Others v. Poland, App. No. 33945/96, ECtHR (dec.) (23 March 2000).
19
Simunek et al. v. Czech Republic, Comm. No. 516/1992, HRC (31 July 1995). See also the consistent
case law since from a string of cases concerning the Czech Republic, including Adam (25 July
1996), Des Fours Walderode (30 October 2001), Kriz (1 November 2005), Ondracka (31 October
2007), Kohoutek (17 July 2008) and Slezak (20 July 2009).
20
Tom Allen, ‘Restitution and Transitional Justice in the European Court of Human Rights,’
Columbia Journal on European Law 13 (2006): 1–46.
21
Harris et al., supra n 13.
22
Art. 3 of the ECHR, sometimes used in combination with the right to a remedy as set out in Art. 13.

of procedural measures have been, or should have been, adopted after entry into
force. In this vein, the Court was able to find a violation of the right to life for the
violent repression of anti-communist manifestations in Timişoara in December

1989, even though the ECHR entered into force for Romania only in June 1994.23
The judges cited a lack of diligence on the part of Romanian authorities to pros-
ecute the authors of the violence.
Leave Room for Free Debate about the Past

Truth seeking is an essential aspect of a society’s efforts to address a violent or
authoritarian past. While the ECHR does not oblige a state to set in motion an
official truth-seeking exercise, it does restrict states’ opportunities to contain or
control public debate about the past.
The ECtHR has long held that ‘political’ speech and expressions on issues of
public concern are due protection. As a result, it applies strict scrutiny to restric-
tions on such rights. This line of argument has been applied to cases in which
persons have been convicted for making allegations concerning the activities of
certain individuals under the previous regime, or for vehement disagreement with
interpretations of history.24 The Court has held that ‘it is an integral part of
freedom of expression to seek historical truth.’25 This type of expression is an
important public concern because it urges people ‘to come to terms with the
past’26 or because it ‘might have repercussions on [a country’s] future democratic
development.’27 Allegations must have a factual basis.28 Yet, the principle that
freedom of expression applies to ‘ideas that offend, shock or disturb’29 also
applies to historical debate, ‘in a sphere in which it is unlikely that any certainty
exists’ and ‘in which the dispute is still ongoing.’30 Moreover, when a significant
amount of time has passed, restrictions on free debate seem even less justified. On
an application concerning criticism of Switzerland’s role during World War II,
the Court held that
the lapse of time makes it inappropriate to deal with such remarks, fifty years on, with
the same severity as ten or twenty years before. That forms part of the efforts that every
country must make to debate its own history openly and dispassionately.31
23
Sandru and Others v. Romania, App. No. 22465/03, ECtHR (8 December 2009).
24
For example, Oberschlick (nr 2) v. Austria, Rep. 1997-IV, Fasc. 42, ECtHR (1 July 1992).
25
Monnat v. Switzerland, App. No. 73604/01, ECtHR (21 September 2006), sec. 57.
26
Karsai v. Hungary, App. No. 5380/07, ECtHR (1 December 2009), sec. 35.
27
Feldek v. Slovakia, App. No. 29032/95, ECtHR (12 July 2001), sec. 81. On the role of the context of
democratic transition in this case, see, James A. Sweeney, ‘Divergence and Diversity in
Post-Communist European Human Rights Cases,’ Connecticut Journal of International Law 21
(2005): 1–40.
28
Feldek v. Slovakia, App. No. 29032/95, ECtHR (12 July 2001), sec. 81. Allegations without a factual
basis can be restricted in the name of the protection of reputation: Radio France v. France, App. No.
53984/00, ECtHR (30 March 2004).
29
Handyside v. UK, App. No. 5493/72, ECtHR (7 December 1976), and consistent case law since.
30
Monnat v. Switzerland, App. No. 73604/01, ECtHR (21 September 2006), sec. 63.
31
Ibid., sec. 64.

288 E. Brems
Yet, when allegations concern the behavior of individuals who are not active as
politicians, national authorities are allowed to interpret the lapse of time in the
opposite sense, thus recognizing a right to be forgotten. The Court ruled along

these lines in a defamation case against a journalist who reopened discussion of
a murder committed during World War II by a well-known Dutch filmmaker.
The filmmaker had served part of his sentence and been granted pardon for the
remainder.32
As this shows, the need to allow room for free debate concerns the authoritarian
past itself, as well as the approach taken toward the legacy of that past – in other
words, the transitional justice process. In that respect, Czech authorities’ refusal
to register a political party because its members wished to end impunity for
Communist offences was found to violate the freedom of association.33
One important exception to the freedom to debate the past is the criminaliza-
tion of Holocaust denial or defense. Criminal offences of this type have been
introduced in several European jurisdictions and have been found to be justifiable
restrictions on free speech.34 In such a context, the Court has used the abuse
clause of Article 17, which states that ECHR rights are not to be used for the
destruction of the rights of others. In the eyes of the Court, holocaust denial
does not constitute historical research akin to a quest for the truth. The aim and the
result of that approach are completely different, the real purpose being to rehabilitate
the National-Socialist regime.35
When such incriminations are interpreted broadly, they may nevertheless be

found to violate free speech, as the Court emphasizes the importance of free
historical debate.36
Provide Access to Personal Files Kept by the Security Services of

the Former Regime
The ECtHR has obliged states to provide effective individual access to personal
files kept by public authorities37 that do not contain information that threatens
national security.38 Many files kept by the security services of the former regime
no longer need to be kept secret for reasons of national security, hence the obli-
gation to provide access to the information. The Court has not yet had to deal
with a case in which an individual has claimed access in the absence of any
arrangements to that effect under domestic law. Yet, it did find a violation on
32
Middelburg, Van Der Zee and Het Parool v. The Netherlands, ECtHR (dec.) (21 October 1998).
33
Linkov v. Czech Republic, App. No. 10504/03, ECtHR (17 December 2006).
34
Garaudy v. France, App. No. 65831/01, ECtHR (24 June 2003); Remer v. Germany, App. No.
25096/94, ECmHR (6 September 1995).
35
Garaudy v. France, App. No. 65831/01, ECtHR (24 June 2003).
36
Lehideux and Isorni v. France, Rep. 1998-VII, Fasc. 92, ECtHR (23 September 1998); Orban, De
Bartillat and Editions Plon v. France, App. No. 20985/05, ECtHR (15 January 2009), sec. 52.
37
Gaskin v. UK, App. No. 10454/83, ECtHR (7 July 1989), sec. 49; Odièvre v. France, App. No. 42326/
98, ECtHR (Grand Chamber) (13 February 2003), sec. 41–47.
38
Leander v. Sweden, App. No. 9248/81, ECtHR (26 March 1987), sec. 51.

account of lack of effectiveness of access arrangements in a case in which an

individual had to wait more than six years to get access to personal files kept
by the Romanian Securitate. The Court stated that the Romanian authorities had

failed to fulfill their positive obligation to offer the applicant an effective and
accessible procedure that would allow him to access his files within a reasonable
amount of time.39
Not Required: Compensation for Harm Caused by Another

Regime
After transition, individuals who suffered under the previous regime may try to
obtain compensation for deportation, forced labor, loss of property and other
such violations. As argued above, many of these claims are inadmissible ratione
temporis. Even without reference to temporal admissibility, the ECtHR has held
that the ECHR places states parties under no general obligation to compensate
victims for wrongs inflicted in the past under the general cover of state authority.
Consequently, substantive regulations that determine the eligibility criteria for
such compensation would, in principle, fall outside the Court’s jurisdiction,
unless the relevant criteria were established in a manner that was manifestly ar-
bitrary or blatantly inconsistent with the fundamental principles of the ECHR.40
A Belgian law reserving benefits for Jewish and Roma victims of World War II
who held Belgian nationality on 1 January 2003 and resided in Belgium during the
German occupation was not held discriminatory on account of the wide margin
of appreciation of the Belgian state awarding compensation for damage for which
it bore no responsibility.41 Likewise, Germany does not owe compensation for
the injustices committed by previous regimes, including the German Reich42 and
the East German government.43 Claims for compensation on the basis of Article 1
of Protocol No. 1 are held to be incompatible with the ECHR ratione materiae
to the extent that applicants cannot invoke a legitimate expectation of compen-
sation. This can arise only from domestic law.44 The hope of recognition of a
property right that has been impossible to exercise effectively or the hope that a
long-extinguished property right may be revived are not considered legitimate
expectations, and neither is the belief that the law then in force will be changed to
the applicants’ advantage.45 Moreover, when the compensation being pursued is
39
Haralambie v. Romania, App. No. 21737/03, ECtHR (27 October 2009).
40
Wos´ v. Poland, App. No. 22860/02, ECtHR (dec.) (1 March 2005), sec. 80.
41
Epstein and Others v. Belgium, App. No. 9717/05, ECtHR (dec.) (8 January 2008).
42
Associazione Nazionale Reduci dalla Prigionia dall’Internamento e dalla Guerra di Liberazione and
275 Others v. Germany, App. No. 45563/04, ECtHR (dec.) (4 September 2007).
43
Unilever v. Germany, App. No. 32901/04, ECtHR (dec.) (13 March 2007).
44
See, among others, Broniowski v. Poland, App. No. 31443/96, ECtHR (Grand Chamber) (22 June
2004), sec. 124–125; Pashkovskiy v. Ukraine and Poland, App. No. 4582/05, ECtHR (dec.) (17 June
2008); Ernewein and Others v. Germany, App. No. 14849/08, ECtHR (dec.) (12 September 2009).
45
Von Maltzan and Others v. Germany, App. Nos. 71916/01, 71917/01 and 10260/02, ECtHR (Grand
Chamber) (2 March 2005), sec. 74; Gratzinger and Gratzingerova v. Czech Republic, App. No.
39794/98, ECtHR (Grand Chamber) (10 July 2002), sec. 69 and 73.

290 E. Brems
for lost property, in addition to the eligibility criteria, the scope and conditions of
property restitution remain outside the Court’s scrutiny.46
The Court also refuses to entertain discrimination claims in the field of com-

pensation for past wrongs under Article 14, the nondiscrimination provision of
the ECHR. Article 14 needs to be invoked jointly with a substantive article within
the ambit of which the case falls. As a rule, the ‘ambit’ of an ECHR provision for
the purpose of a discrimination analysis is broader than the scope of the same
provision when it is considered alone.47 Yet, the Court states that a claim for
compensation that cannot rely on a legitimate expectation under domestic law
also falls outside the ambit of Article 1 of Protocol No. 1 for the purpose of its
combination with Article 14.48 In contrast, the UN Human Rights Committee, in
applying the autonomous prohibition of discrimination in Article 26 of the
ICCPR, has found the Czech restitution regime discriminatory in a number of
cases, including one that had earlier been declared inadmissible by a Grand
Chamber of the ECtHR.49 Protocol No. 12 to the ECHR introduces a similar
autonomous prohibition of discrimination. As it enters into force for an increas-
ing number of states, the Court will be obliged to examine allegations of discrim-
ination with respect to eligibility criteria for compensation on their merits.
The fact that such applications may no longer be declared inadmissible ratione
materiae does not, however, preclude them from being held manifestly
ill-founded or simply unjustified on account of a wide margin of appreciation
of national authorities.50
When a compensation scheme is set up at the domestic level, challenges can
arise under Article 6 or Article 13 of the ECHR and under Article 1 of Protocol
No. 1.51 This implies that decisions on compensation have to be supervised by a
46
Jantner v. Slovakia, App. No. 39050/97, ECtHR (4 March 2003), sec. 34; Von Maltzan and Others v.
Germany, App. Nos. 71916/01, 71917/01 and 10260/02, ECtHR (Grand Chamber) (2 March 2005),
sec. 74.
47
Harris et al., supra n 13.
48
For example, Gratzinger and Gratzingerova v. Czech Republic, App. No. 39794/98, ECtHR
(Grand Chamber) (10 July 2002); Associazione Nazionale Reduci dalla Prigionia
dall’Internamento e dalla Guerra di Liberazione and 275 Others v. Germany, App. No. 45563/04,
ECtHR (dec.) (4 September 2007); Ernewein and Others v. Germany, App. No. 14849/08, ECtHR
(dec.) (12 September 2009).
49
Gratzinger v. Czech Republic, Comm. No. 1463/2006, HRC (25 February 2007). See also, Patrick
Macklem, ‘Rybná 9, Praha 1: Restitution and Memory in International Human Rights Law,’
European Journal of International Law 16 (2005): 1–23.
50
See, Epstein and Others v. Belgium, App. No. 9717/05, ECtHR (dec.) (8 January 2008). See also,
Jakowicz v. Poland, App. No. 16778/02, ECtHR (13 October 2009), sec. 78; Zgola v. Poland and
Paciej v. Poland, App. No. 41367/02, ECtHR (dec.) (24 November 2009).
51
For example, JS and Others v. Poland, App. No. 33945/96, ECtHR (dec.) (23 March 2000);
Urbárska Obec Trenčianske Biskupice v. Slovakia, App. No. 74258/01, ECtHR (27 November
2007); Driza v. Albania, App. No. 33771/02, ECtHR (13 November 2007); Ramadhi and Five
Others v. Albania, App. No. 38222/02, ECtHR (13 November 2007); Katz v. Romania, App. No.
29739/03, ECtHR (20 January 2009); JH and 23 Others v. France, App. Nos. 49637/09, 49644/09,
49654/09, 49666/09, 49674/09, 49683/09, 49688/09, 49694/09, 49698/09, 49700/09, 49703/09,
49720/09, 49725/09, 49731/09, 49741/09, 49749/09, 49788/09, 49796/09, 49800/09, 49806/09
and 49992/09, ECtHR (dec.) (24 November 2009).

judicial body with full jurisdiction,52 and that arrangements for compensation
must strike a fair balance between individual interests and the general interests of
the community, which implies that a state should not unduly postpone the adop-

tion of rules that would determine the amount of compensation.53 Where no
domestic compensation scheme exists, the ECtHR has not shown a willingness
to eliminate legal obstacles standing in the way of compensation. In particular,
the Court held that the rule of state immunity invoked by Germany in a procedure
before a French employment tribunal ruling on compensation for forced
labor during World War II did not impose a disproportionate restriction on
the right of access to a court as embodied in Article 6(1) of the ECHR.54 When
relatives of the victims of a massacre by the Nazi occupation forces in Greece
obtained compensation from a Greek court but were unable to execute the judg-
ment because the Greek government supported German immunity from execu-
tion, the ECtHR held that this violated neither Article 6(1) nor Article 1 of
Protocol No. 1.55
Negative Normativity: What a State Is Not Allowed

to Do after Transition
Human rights standards not only impose a number of positive obligations on
states but also, first and foremost, establish a framework that restricts states’
policy choices by establishing lines that cannot be crossed. As transitional justice
measures have generally continued to be adopted or to produce their effects after
the entry into force of the ECHR for the member states concerned, there has been
more opportunity for the ECtHR to establish a number of negative obligations in
the field of transitional justice.
No Amnesty
The corollary of the obligation to prosecute perpetrators of human rights viola-
tions is the unacceptability of amnesty for those individuals. The ECtHR has not
received any applications concerning amnesty granted by states parties. Yet, it did
pronounce on amnesty laws in general in a case in which a Mauritanian former
intelligence officer was convicted in France under the application of universal
jurisdiction, despite a Mauritanian amnesty law. The Court held that ‘amnesty is
generally incompatible with the states’ duty to investigate acts of torture or
52
Wos´ v. Poland, App. No. 22860/02, ECtHR (dec.) (1 March 2005), sec. 95; Kostka v. Poland, App.
No. 29334/06, ECtHR (16 February 2010), sec. 63–64.
53
Kiladzé v. Georgia, App. No. 7975/06, ECtHR (2 February 2010), sec. 71ss.
54
Grosz v. France, App. No. 14717/06, ECtHR (dec.) (16 June 2009).
55
Kalogeropoulou and Others v. Greece and Germany, App. No. 59021/00, ECtHR (dec.)
(12 December 2002).

292 E. Brems
barbarity.’56 It noted that this view is not uncontested within transitional justice:
Certainly, in general the possibility of a conflict between on the one hand the necessity

to prosecute crimes committed and on the other, the wish to reconcile the social body
of a country, cannot be excluded. In any case, no reconciliation procedure of this
type has been initiated in Mauritania. However, in view of the prominent place the
prohibition of torture occupies in all international human rights protection instru-
ments, the obligation to prosecute the perpetrators of such acts should not be under-
mined by granting impunity by the adoption of an amnesty law that may be
considered contrary to international law.57
While following the international consensus on the unacceptability of amnesty
for serious human rights violations, the Court appears to leave some room for
a more nuanced judgment on amnesties that are embedded in a broader recon-
ciliation process.
Property Restitution or Compensation Regimes: Not Any Which

Way
The bulk of ECtHR cases dealing with transitions from communism relate to the
restitution of property that was nationalized under Communist regimes. Article 1
of Protocol No. 1 to the ECHR protects individual property rights as human
rights. In restitution cases, a violation of this right may be claimed both by those
denied restitution and by those obliged to restitute property that may have been
in their hands for a long time. Restitution laws usually affect only those individ-
uals whose property titles are tainted by abuse of power or breaches of the law.
The Court has upheld the legitimacy of such laws, stating:
Persons who have taken advantage of their privileged position or have otherwise acted
unlawfully to acquire property in a totalitarian regime, as well as their heirs, cannot
expect to keep their gain in a society governed democratically through the rule of law.
The underlying public interest in such cases is to restore justice and respect for the rule
of law.58
Moreover, while the Court generally grants a wide margin of appreciation to

national authorities in the area of economic policy, it has broadened this
margin in the context of a change in the economic and political regime.59
This does not mean that the Court’s concrete legal criteria, let alone their ap-
plication, are necessarily always in conformity with the ECHR. The Court accepts
that the general objective of restitution laws, namely to attenuate the conse-
quences of certain infringements on property rights by Communist regimes, is
56
Ould Dah v. France, App. No. 13113/03, ECtHR (dec.) (17 March 2009) (author’s translation).
57
Ibid.
58
Velikovi and Others v. Bulgaria, App. Nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99,
53367/99, 60036/00, 73465/01 and 194/02, ECtHR (15 March 2007).
59
Jahn and Others v. Germany, App. Nos. 46720/99, 72203/01 and 72552/01, ECtHR (Grand
Chamber) (30 June 2005). See, Carl Lebeck, ‘Rights in Transitions: The European Court of
Human Rights’ Judgment in Jahn and Others v. Germany,’ King’s College Law Journal 17
(2006): 359–365.

a legitimate aim and a means of safeguarding the lawfulness of legal transactions

and protecting a country’s socioeconomic development. However, the Court
considers it necessary to ensure that the attenuation of those old injuries does

not create disproportionate new wrongs. To that end, it holds that legislation
should allow the particular circumstances of each case to be taken into account, so
that people who acquired their possessions in good faith are not made to bear a
burden of responsibility that is rightfully the burden of the state that once con-
fiscated those possessions.60
The ECtHR examines the facts and context of each individual case and, in
several cases, has found a violation of property rights using a proportionality
analysis based on three factors.61 The first is good faith, as people who acquired
property under communism did not always know that the property had been
confiscated, and even if they paid a low price they were unable to influence the
terms of the transaction. The second is the need for a reasonable relationship
between the amount of compensation paid and the value of the property.62
The Court does not require full compensation, specifying that it ‘is not prepared
to attach weight to the issue of compensation for improvements made by the
post-nationalization owners unless in exceptional circumstances.’ The third is
social variables, such as whether the property was the applicants’ only available
housing, as well as their chances of purchasing another house. In general, the
Court has noted that
in complex cases as [these], which involve difficult questions in the conditions of
transition from a totalitarian regime to democracy and rule of law, a certain ‘threshold
of hardship’ must have been crossed for the Court to find a breach of the applicants’
Article 1 Protocol No. 1 rights.63
This statement suggests a mitigation of state obligations on account of the tran-
sitional situation. The threshold for states has been lowered and the Court applies
a lighter degree of scrutiny than it would under ordinary circumstances. In add-
ition to post-communist restitution, the Court has granted a wide margin of
appreciation to states implementing a compensation regime. In particular, the
extinction of individual claims as a result of participation in a general compen-
sation scheme has been justified in the name of the public interest of legal
certainty.64
60
Pincová and Pinc v. Czech Republic, App. No. 36548/97, ECtHR (5 November 2002).
61
Velikovi and Others v. Bulgaria, App. Nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99,
53367/99, 60036/00, 73465/01 and 194/02, ECtHR (15 March 2007), sec. 181.
62
Yet, in Von Maltzan and Others v. Germany, App. Nos. 71916/01, 71917/01 and 10260/02, ECtHR
(Grand Chamber) (2 March 2005), the Court held that ‘in the unique context of German reuni-
fication, the lack of any compensation does not upset the “fair balance” that has to be struck
between the protection of property and the requirements of the general interest’ (sec. 117).
63
Von Maltzan and Others v. Germany, App. Nos. 71916/01, 71917/01 and 10260/02, ECtHR (Grand
Chamber) (2 March 2005), sec. 192.
64
Poznanski v. Germany, App. No. 25101/05, ECtHR (dec.) (3 July 2002). Extinction of individual
claims against IG Farbenindustrie concerning forced labor in the Auschwitz concentration camp

294 E. Brems
As mentioned above, those who are unable to obtain restitution or another

form of satisfactory compensation under domestic law will only have a legitimate
claim in Strasbourg if posttransition laws created a right or a legitimate expect-

ation of restitution or compensation that was somehow frustrated in violation of
Article 1 of Protocol No. 1, Article 6 or another ECHR right. Despite the strict
limitation of its jurisdiction, the Court has been overwhelmed with valid claims of
this type and, as a result, created case law with respect to remedies. Traditionally,
the ECtHR pronounced on the existence of a violation of an ECHR right without
indicating the remedy, apart from the possibility of awarding ‘just satisfaction,’
meaning limited financial compensation.
Confronted with a large number of cases suggesting structural problems,
the Court has created the so-called ‘pilot-judgment procedure.’65 This procedure
entails that in a select case or cases, the Court will identify the structural cause of
the violations at the domestic level and give clear indications to the government as
to how to eliminate it. In the meantime, the examination of other applications of
the same type can be frozen for a certain period of time. The first pilot-judgment
procedure was the so-called Bug River cases from Poland.66 This concerned the
failure of Polish authorities to implement a compensation scheme for relocated
individuals whose property had been expropriated as a result of alterations to
Poland’s borders at the end of World War II. After the procedure, new legislation
was introduced and pending cases were settled.67 The Court has since ruled about
the need for general measures in several other posttransition compensation cases,
among others about the lack of proper execution of domestic judgments on
restitution or compensation,68 failure to determine the amount and modalities
of compensation69 and other shortcomings in legislation governing restitution
and compensation, as well as in its application.70
as a result of compensation applicants in a national scheme (to which IG Farben did not
contribute).
65
European Court of Human Rights Registrar, ‘The Pilot-Judgment Procedure,’ http://www.echr.
coe.int/NR/rdonlyres/DF4E8456-77B3-4E67-8944-B908143A7E2C/0/Information_Note_on_
the_PJP_for_Website.pdf (accessed 6 April 2011). See, Antoine Buyse, ‘The Pilot Judgment
Procedure at the European Court of Human Rights: Possibilities and Challenges,’ Nomiko
Vima 57 (2009): 1890–1902; Philip Leach, Helen Hardman, Svetlana Stephenson and Brad K.
Blitz, Responding to Systemic Human Rights Violations: An Analysis of ‘Pilot Judgments’ of the
European Court of Human Rights and Their Impact at National Level (Antwerp: Intersentia,
2010); Wojciech Sadurski, ‘Partnering with Strasbourg: Constitutionalisation of the European
Court of Human Rights, the Accession of Central and East European States to the Council of
Europe, and the Idea of Pilot Judgments,’ Human Rights Law Review 9(3) (2009): 397–453.
66
Broniowski v. Poland, App. No. 31443/96, ECtHR (Grand Chamber) (22 June 2004).
67
Broniowski v. Poland, App. No. 31443/96, ECtHR (Grand Chamber) (28 September 2005).
68
Viaşu v. Romania, App. No. 75951/01, ECtHR (9 December 2008); Driza v. Albania, App. No.
33771/02, ECtHR (13 November 2007); Ramadhi and Five Others v. Albania, App. No. 38222/02,
ECtHR (13 November 2007).
69
Kiladzé v. Georgia, App. No. 7975/06, ECtHR (2 February 2010).
70
Urbárska Obec Trenčianske Biskupice v. Slovakia, App. No. 74258/01, ECtHR (27 November 2007);
Katz v. Romania, App. No. 29739/03, ECtHR (20 January 2009).

Conditional Approval: Lustration and Other Restrictions

on Political Freedoms

Lustration laws typically prevent individuals registered as collaborators in
the files of former state security agencies from occupying certain positions in
the post-communist government.
Lustration regimes vary in scope and impact. For example, the Czechoslovak
lustration law of 4 October 1991 applied not only to collaborators with the com-
munist security services but also to all those who held a position within the re-
gime.71 Even low-level former Communist Party functionaries were barred from
holding positions in state institutions, the judiciary, universities, the state-run
media and so forth. In order to qualify for such a position, one had to present a
certificate of ‘negative lustration.’ This law was indefinitely extended by the Czech
Republic.72 The Polish lustration law, in contrast, does not bar access to any
positions but obliges certain individuals to declare publicly their links with the
former state security agency. A special commissioner analyzes these declarations
and, if s/he suspects they are false, s/he may initiate lustration proceedings in
court, which can result in a decision barring the individual concerned from a
number of public positions for a period of 10 years.73
The ECtHR has upheld the legitimacy of lustration but in several cases found
violations of the right to privacy (Article 8 of the ECHR) and due process
rights (Article 6) of persons submitted to lustrations, because of restrictions
on their access to secret documents that constituted the main evidence in the
proceedings. The Court recognizes that at the end of the 1990s, Eastern European
states had an interest in carrying out lustration with regard to the most import-
ant public functions. However, it reiterates that if a state is to adopt lustration
measures, it must ensure that the people affected enjoy all procedural guaran-
tees under the ECHR in respect of any proceedings relating to the application
of such measures. The Court accepts that a situation may arise in which there
is a compelling state interest in maintaining the secrecy of some documents,
even those produced under the former regime. Nevertheless, such a situation
would have to be exceptional, given the considerable time that has elapsed
since the documents were created. It is for the government to prove the existence
71
For more on the use of lustration laws in Eastern and Central Europe, see, Monika Nalepa,
Skeletons in the Closet: Transitional Justice in Post-Communist Europe (New York: Cambridge
University Press, 2010); Lavinia Stan, Transitional Justice in Eastern Europe and the Former
Soviet Union: Reckoning with the Communist Past (London: Routledge, 2009). For a review of
both, see, Nanci Adler, review of Skeletons in the Closet: Transitional Justice in Post-Communist
Europe, by Monika Nalepa, and Transitional Justice in Eastern Europe and the Former Soviet Union:
Reckoning with the Communist Past, edited by Lavinia Stan, International Journal of Transitional
Justice 5(2) (2011): 313–318.
72
Jiřı́ Přibán and Wojciech Sadurski, ‘The Role of Political Rights in the Democratization of Central
and Eastern Europe,’ in Political Rights under Stress in 21st Century Europe, ed. Wojciech Sadurski
(Oxford: Oxford University Press, 2006).
73
See, Matyjek v. Poland, App. No. 38184/03, ECtHR (24 April 2007).

296 E. Brems
of such an interest because what is accepted as an exception must not become a

norm.74
Provided that strong procedural guarantees are offered, lustration is thus

allowed in principle under the ECHR. The ECtHR has nonetheless set some
limits on the allowed scope of lustration measures. One restriction is that it
should not extend beyond public functions. Lithuania’s ban on former Soviet
intelligence (KGB) agents from a range of loosely defined jobs in the private
sphere (lawyers, notaries, banks, economic projects, teaching) was found to be
discriminatory.75 Another restriction is that, when they concern the right to be a
candidate in democratic elections, restrictions cannot apply to an entire category
of persons; there has to be a sufficient degree of individualization. For instance,
Latvia excluded certain categories of persons, including former KGB agents, from
standing for elections. The ECtHR held that the reference to ‘former KGB agents’
was too broad, as it does not distinguish according to the time of employment, the
specific tasks that were assigned to a person or the person’s individual behavior.76
One of the reasons behind these restrictions to the scope of lustration measures
is the issue of loyalty. While it is fair to require loyalty of public officials in high
positions, this is different for the private sector, as well as for members of par-
liament, who in a democracy have the right to defend the political ideology of the
previous regime. In the Latvian case, the ECtHR listed a number of general re-
quirements applying to lustration procedures.77 First, a lustration law has to be
accessible and foreseeable. This is inherent in the notion of legality throughout the
ECHR, which requires the terms of the law to be sufficiently specific. Second, a
lustration procedure should not exclusively serve the purposes of punishment or
vengeance, as punishment is in the first place a matter of criminal law. Third, a
lustration law has to allow for sufficient individualization of responsibilities.
Fourth, it has to include sufficient procedural guarantees. Finally, lustration
measures have to be temporary, as the objective need for such measures decreases
with time.
Most lustration measures occur only in the context of transitional justice, but some
may be applied in other situations. In a Grand Chamber judgment sanctioning
Latvia’s exclusion of active members of the former Communist Party, the Court
made clear that the transitional justice context acts as a strong mitigating factor:
While such a measure may scarcely be considered acceptable in the context of one
political system, for example in a country which has an established framework of
democratic institutions going back many decades or centuries, it may nonetheless
74
Ibid., sec. 62. See also, Bobek v. Poland, App. No. 68761/01, ECtHR (17 July 2007); Turek v.
Slovakia, App. No. 57986/00, ECtHR (14 February 2006), sec. 115.
75
Sidabras and Džiautas v. Lithuania, App. Nos. 55480/00 and 59330/00, ECtHR (27 July 2004), sec.
58. A similar case is Rainys and Gasparavičius v. Lithuania, App. Nos. 70665/01 and 74345/01,
ECtHR (7 April 2005).
76
Adamsons v. Latvia, App. No. 3669/03, ECtHR (24 June 2008), sec. 125.
77
Ibid., sec. 116 (author’s translation).

be considered acceptable in Latvia in view of the historico-political context which led

to its adoption and given the threat to the new democratic order posed by the resur-
gence of ideas which, if allowed to gain ground, might appear capable of restoring the

former regime.78
The Court applies the same reasoning to other measures restricting political
freedoms. For instance, in a 1999 case, it held that the Hungarian prohibition
on members of the police joining a political party or engaging in political activ-
ities does not violate their freedom of expression ‘in view of the particular
history.’79
The transition context does not, however, justify all restrictions on political
freedoms that a posttransition government may consider desirable. For example,
the ECtHR found unanimously that the Romanian government’s refusal to regis-
ter a political party because of its communist ideology violated Article 11 of the
ECHR (freedom of association). The Court stated that it was
prepared to take into account the historical background to cases before it, in this
instance Romania’s experience of totalitarian communism prior to 1989. However,
it observes that that context cannot by itself justify the need for the interference,
especially as communist parties adhering to Marxist ideology exist in a number of
countries that are signatories to the Convention.80
Similarly, the ECtHR unanimously found a violation of Article 10 (freedom of

expression) in the conviction of a left-wing Hungarian politician for wearing in
public a five-pointed red star, which was considered a ‘totalitarian symbol.’ The
Court held that this symbol did not necessarily express totalitarianism: ‘It is clear
that this star also still symbolises the international workers’ movement, struggling
for a fairer society, as well certain lawful political parties active in different
Member States.’81 Distinguishing this case from Rekvenyi v. Hungary, the Court
stated,
Almost two decades have elapsed from Hungary’s transition to pluralism and the
country has proved to be a stable democracy . . . It has become a Member State of
the European Union, after its full integration into the value system of the Council of
Europe and the Convention. Moreover, there is no evidence to suggest that there is a
real and present danger of any political movement or party restoring the Communist
dictatorship.82
It may thus be concluded that while the ECtHR does not a priori reject
far-reaching rights-restrictive measures such as lustration and restrictions on
freedom of expression, it does assess the proportionality of such measures. In
this assessment, the context of post-communist transition is recognized as
78
Ždanoka v. Latvia, App. No. 58278/00, ECtHR (Grand Chamber) (16 March 2006), sec. 133.
79
Rekvenyi v. Hungary, App. No. 25390/94, ECtHR (Grand Chamber) (20 May 1999), sec. 46–48.
80
Partidul Communistulor (Nepeceristi) and Ungureanu v. Romania, App. No. 46626/99, ECtHR
(3 February 2005).
81
Vajnai v. Hungary, App. No. 33629/06, ECtHR (8 July 2008), sec. 52.
82
Ibid., sec. 49.

298 E. Brems
justifying a broad margin of appreciation for national authorities and moderation

of the degree of scrutiny exercised by the ECtHR. As time passes and transitions to
democracy take root, however, this mitigating factor decreases and a ‘European’

assessment of the existence of a threat to democracy replaces the domestic risk as-
sessment. Time does not play a similar role when it comes to the ‘militant dem-
ocracy’ measures adopted in several European states (most notably Germany,
Austria and Italy) that restrict political freedoms in order to avoid their abuse
in the manner that led to the horrors of Nazism and fascism. Decades after World
War II, challenges to such measures – such as the prohibition of ‘national socialist
activities’ or of the ‘reorganization of the fascist party’ – have been consistently
held inadmissible by application of the abuse clause of Article 17 of the ECHR.83
Can Do: Overcoming Prima Facie Obstacles to

Prosecution
The actual prosecution and conviction of perpetrators after regime change and/or
the end of armed conflict is the most spectacular aspect of transitional justice. It is
also an area that is highly contested. The ECtHR, despite its limited involvement
with such cases, has in its case law made a number of relevant findings.
Prosecution for Acts Not Considered Criminal When Committed

As described above, human rights norms require that a posttransition democratic
regime bring to justice the perpetrators of gross human rights violations under the
previous repressive regime. Perpetrators may argue that their acts were allowed,
or even mandatory, at the time and that, therefore, it would not be fair to punish
them for those acts after transition. In particular, they may invoke the principle of
the legality of offences and penalties, as protected by Article 7 of the ECHR.84
This issue was brought up by individuals who had been prosecuted in the
reunited Germany for killings committed in East Germany. The alleged crimes
were committed by soldiers stationed at the border against individuals attempting
to flee to the West. The ECtHR issued two judgments on this issue. One involved
three applicants who held senior positions in the state apparatus and in the
Socialist Unity Party leadership,85 and who had been given sentences of between
83
For example, X v. Italy, App. No. 6741/74, ECmHR (21 May 1976); Ochensberger v. Austria, App.
No. 21318/93, ECmHR (2 September 1994); Schimanek v. Austria, App. No. 32307/96, ECtHR
(dec.) (1 February 2000).
84
‘No one shall be held guilty of any criminal offence on account of any act or omission which did
not constitute a criminal offence under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the
criminal offence was committed . . . This article shall not prejudice the trial and punishment of any
person for any act or omission which, at the time when it was committed, was criminal according
to the general principles of law recognised by civilised nations.’
85
Streletz, Kessler and Krenz v. Germany, App. Nos. 34044/96, 35532/97 and 44801/98, ECtHR
(Grand Chamber) (22 March 2001). See, Brad R. Roth, ‘Retrospective Justice or Retroactive
Standards: Human Rights as a Sword in the East German Leaders Case,’ Wayne Law Review 50
(2004): 37–68.

five and a half and seven and a half years by German courts. The other involved a
soldier who was given a suspended prison sentence of 22 months for the killing of
one person in 1972, an act for which he had been decorated and awarded a bonus

by the East German regime. The ECtHR found no violation of Article 7 in either
case. Post-unification German courts had applied East German law, which
included constitutional protection of the right to life, as well as restrictions on
the use of fire arms by state agents, but they obviously interpreted it in a different
manner than an East German court would have. This was allowed in the eyes of
the ECtHR,86 which stated,
The applicant . . . knew or should have known that enlisting for a three-year period of
military service amounted to giving his allegiance to the regime in power and entailed
the possibility of being posted to the border, where he would run the risk of being
obliged to fire on unarmed fugitives.
Furthermore, the Court takes the view that even a private soldier could not show
total, blind obedience to orders that flagrantly infringed on not only East Germany’s
own legal principles but also internationally recognized human rights, in particu-
lar the right to life, which is the supreme value in the hierarchy of human rights.
Even though the applicant was in a particularly difficult situation on the spot, in
view of the political context in East Germany at the time, such orders could not
justify firing on unarmed persons who were merely trying to leave the country.87
The Court thus concluded that Article 7 had not been violated because, contrary
to the applicant’s claims, these border killings did constitute an offence at the time
they were committed, both under domestic law and under international law, even
though domestic law was interpreted and applied in a different manner.
Such a retroactive interpretation of criminal law may appear problematic. It can
be avoided by restricting the argument to international law. Article 7(1) considers
a basis in international law equivalent to a basis in domestic law. Moreover,
Article 7(2) specifically leaves open the possibility for prosecution on the basis
of customary international law. When posttransition prosecution is based on the
qualification of facts as crimes against humanity, no statutory limitations apply
and the accused will not be able to rely on Article 7. In such cases, applicants can
only attempt to contest the qualification of their acts as crimes against humanity.
This was the approach taken by two applicants who had been convicted for their
participation in the March 1949 deportation of civilians from occupied Estonia to
remote areas of the Soviet Union.88 They argued that deportation was not a crime
against humanity under international humanitarian law as it stood in 1949. In
another Estonian case, an official who had ordered the murder of three civilians in
1953 argued that crimes against humanity were not yet known in domestic law at
the time.89 This obliged the Court to pronounce on international humanitarian
86
K-H W v. Germany, App. No. 37201/97, ECtHR (Grand Chamber) (22 March 2001), sec. 81.
87
Ibid., sec. 74–76.
88
Kolk and Kislyiy v. Estonia, App. No. 24018/04, ECtHR (dec.) (17 January 2006).
89
Penart v. Estonia, App. No. 14685/04, ECtHR (dec.) (24 January 2006).

300 E. Brems
law as it stood in 1949 and 1953, respectively. It pointed out that the basis in
international law was there at the time, as both the deportation and the murder of
civilians were expressly recognized as crimes against humanity in the 1945 Charter

of the International Military Tribunal at Nuremberg, and that the universal val-
idity of the Nuremberg principles had been recognized shortly afterward in inter-
national law. These applicants saw their cases rejected in the admissibility stage for
being ‘manifestly ill-founded.’ In these cases, therefore, the Court was able to
conclude that Article 7 was not violated without pronouncing itself on domestic
(Soviet) law by stating that even if the acts were not criminal under domestic law,
they were criminal under international law at the time they were committed.
If direct application of international law to posttransition prosecutions of per-
petrators of international crimes is allowed, it is worth mentioning that the
European Commission on Human Rights has also accepted prosecution for inter-
national crimes on the basis of domestic provisions that were specifically adopted
after transition to deal with past violations:
It transpires from the preparatory work to the ECHR that the purpose of paragraph 2
of Article 7 is to specify that this Article does not affect laws which, in the wholly
exceptional circumstances at the end of the Second World War, were passed in order
to punish war crimes, treason and collaboration with the enemy and does not in any
way aim to pass legal or moral judgment on those laws.90
According to this interpretation, the second paragraph of Article 7 would specif-
ically be intended to legitimize post-World War II transitional justice measures.
Therefore, it was acceptable for the Belgian parliament to decide in 1948 that
individuals convicted for collaboration with the German enemy would lose their
pension rights,91 and for the French parliament to decide retroactively in 1964
that prosecution for crimes against humanity cannot be time-barred.92
Transitions to democracy can take time, and it may not always be clear whether
the new regime will be able to gain legitimacy and resist the vehement struggles of
the old regime. Rules issued by the new regime may be contested by supporters of
the old regime. In the case of prosecution under such new rules, individuals may
invoke Article 7. In a Lithuanian case concerning involvement in a pro-Soviet and
pro-communist coup, the Court had such a situation on its hands. It held that
the applicants’ convictions were ultimately based on Articles 68 and 70 of the Criminal
Code, as amended on 10 November 1990. By that time, in the Court’s view, the
political will of the new Lithuanian Government was clearly established and the ap-
plicants must have been aware, as leading professional politicians . . . of the great risks
they were running in maintaining their activities in the CPL/CPSU and its subsidiary
organisations with a view to overthrowing the Government.93
90
X v. Belgium, App. No. 268/57, ECmHR (20 July 1957); Touvier v. France, App. No. 29420/95,
ECmHR (13 January 1997).
91
X v. Belgium, App. No. 268/57, ECmHR (20 July 1957).
92
Touvier v. France, App. No. 29420/95, ECmHR (13 January 1997).
93
Kuolelis, Bartosˇevičius and Burokevičius v. Lithuania, App. Nos. 74357/01, 26764/02 and 27434/02,
ECtHR (19 February 2008), sec. 120.

The ECtHR held that a post-factum innovative and broad interpretation of the
scope of an international crime is compatible with Article 7 to the extent that it
already had some significant support at the time of the offence (in scholarly work

and in a resolution of the UN General Assembly) so that the acts could reasonably
be regarded as falling within the ambit of the offence.94 Thus, the offence of
genocide, applied to acts committed in 1992, could reasonably be defined so
that the ‘intent to destroy’ a group does not necessitate the intent to destroy it
in a physical or biological sense. It is sufficient that the perpetrator aimed to
destroy the group in question as a social unit.95
In some cases, the Court did find a violation of Article 7. One applicant, a
soldier, was sentenced under the post-communist regime to five years in prison
for killing the leader of an armed group of insurgents during the Hungarian
revolution of 1956, an offence considered by the Hungarian courts to constitute
a crime against humanity punishable under Article 3(1) of the Geneva
Conventions of 1949, proclaimed in Hungary in 1954. This provision protects
people not taking an active part in hostilities, including members of armed forces
who have laid down their arms. The ECtHR interpreted the facts in a different
manner than the Hungarian courts, concluding that the insurgent leader did not
fall into any of these categories. It argued that the applicant could not foresee that
his acts would be considered a crime against humanity, and thus that his convic-
tion violated Article 7.96 Another applicant was the leader of an armed unit of Red
Partisans who, in 1944, executed the heads of six households in a Latvian village
suspected of collaborating with the German army. In 2004, he was convicted of a
war crime under the Latvian criminal code, with the courts referring to interna-
tional law for definitions of the offences. The ECtHR agreed that the regulations
appended to the Hague Convention of 18 October 1907 concerning the laws and
customs of war on land – to which neither the Soviet Union nor Latvia had been a
signatory – applied as customary law, but found that the Latvian courts had
omitted to carry out a sufficiently thorough analysis of those regulations. A
chamber of the ECtHR found that the victims had been wrongly defined as civil-
ians, resulting in a violation of Article 7.97 A Grand Chamber overruled this find-
ing, stating that a sufficiently clear legal basis existed for the applicant’s conviction
and punishment for war crimes given the state of international law in 1944.98
Prosecution for Crimes in the Distant Past

Some prosecutions for war crimes or crimes against humanity committed during
World War II have taken place several decades later. It may be argued that the
passage of time constitutes a threat to the fairness of the procedures. This was
94
Jorgic v. Germany, App. No. 74613/01, ECtHR (12 July 2007), sec. 108.
95
Ibid., sec. 104.
96
Korbely v. Hungary, App. No. 9174/02, ECtHR (Grand Chamber) (19 September 2008).
97
Kononov v. Latvia, App. No. 36376/04, ECtHR (24 July 2008).
98
Kononov v. Latvia, App. No. 36376/04, ECtHR (Grand Chamber) (17 May 2010).

302 E. Brems
argued by an individual tried in the UK in 1999 for his participation in the killing
of Jews in Poland in 1944 as a commander of a local police force cooperating with
the German occupation forces. The UK War Crimes Act (1991) provides that a

murder case may be brought against a person irrespective of nationality concern-
ing offences committed during World War II. The ECtHR did not find a violation
and granted that the lapse of some 50 years must have had an effect on the
availability of evidence and the memories of witnesses.
The ECHR does not, however, impose a time limit in respect of war crimes
prosecutions (see also the UN Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity (1968) and the
European Convention on the Non-Applicability of Statutory Limitations to
Crimes against Humanity and War Crimes (1974), both of which provide that
statutory limitation periods shall not apply to the prosecution of those offences).
The Court also is not persuaded that any general requirement of fairness neces-
sitates that such should be implied in Article 6. It is satisfied that, in this case, the
burden of proof lay on the prosecution to establish beyond a reasonable doubt
that the applicant had committed the offences charged, as well as that the appli-
cant, who was represented by senior and junior counsel and solicitors, was af-
forded a fair and effective opportunity to put forward those matters in his favor,
including arguments concerning the reliability of witnesses.
Extraterritorial Jurisdiction
When a state is unwilling or unable to prosecute perpetrators of violations under a
previous regime, prosecution may still take place in an international court or in a
foreign court that applies universal jurisdiction. Some applicants have argued
before the ECtHR that their conviction by the ICTY violated their right to a
fair trial under Article 6 of the ECHR. Yet, the Court lacks the jurisdiction ratione
personae to examine complaints against the UN or the ICTY. Moreover, it does
not wish to interpret the ECHR in a manner that would subject the acts and
omissions of contracting parties covered by UN Security Council resolutions under
Chapter VII of the UN Charter to the scrutiny of the Court, as to do so would
interfere with the fulfillment of the UN’s key mission to secure international peace
and security.99 Thus, in a case alleging that extradition to the ICTY would entail a
violation of Article 6, the Court held that no issue arose under Article 6, as the ICTY,
‘in view of the content of its Statute and Rules of Procedure, offers all the necessary
guarantees including those of impartiality and independence.’100
The exercise of universal jurisdiction by domestic courts was challenged by an
individual convicted in Germany for genocide committed in Bosnia in 1992. The
applicant alleged that Germany could not establish jurisdiction and that, there-
fore, the court that convicted him was not a ‘tribunal established by law’ in the
99
Galić v. The Netherlands, App. No. 22617/07, ECtHR (dec.) (9 June 2009), sec. 37. See also,
Blagojević v. The Netherlands, App. No. 49032/07, ECtHR (dec.) (9 June 2009).
100
Naletilić v. Croatia, App. No. 51891/99, ECtHR (dec.) (4 May 2000).

sense of Article 6(1). Dismissing this claim, the Court relied on an interpretation
of the Convention on the Prevention and Punishment of the Crime of Genocide
(1948) in light of the practice of other states and of the ICTY.101

Another challenge to universal jurisdiction was mounted on the basis of
Article 7. In this case, already mentioned above, a Mauritanian national was
convicted in France for acts of torture. The applicant did not object to the
jurisdiction of the French courts, but to their applying French law instead of
Mauritanian law, under which he benefited from amnesty. In the eyes of the
Court, the prosecution of torturers by way of universal jurisdiction as foreseen
in the UN Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1985) would be emptied of substance if only juris-
dictional competence were withheld without the applicability of the relevant
legislation of the state concerned. It held that setting aside this legislation in
favor of special decisions or laws passed in the state where the offence was com-
mitted to protect its own nationals or, where applicable, under the direct or
indirect influence of the perpetrators would effectively paralyze the whole
principle of universal jurisdiction. The complaint was considered ‘manifestly
ill-founded.’102
Conclusion
Human rights entail positive and negative obligations, dos and don’ts. The above
overview has shown that these affect most, if not all, aspects of transitional justice
policies. The underrepresentation of positive obligations in the current picture of
the Strasbourg transitional justice case law is misleading, as it is chiefly due to the
historical circumstance that states have joined the convention system after transition.
The ECtHR has addressed numerous cases where it has been alleged that the
ways in which European states have dealt with their authoritarian past has vio-
lated human rights. In many cases, it has found such complaints to be justified.
Where issues gave rise to repeated claims, the Court has developed criteria in-
tended to ensure that transitional justice measures conform to human rights
standards.
Yet, when human rights function as limits on state discretion in relation to
transitional justice policies, the transitional context sometimes justifies a wide
margin of appreciation for national authorities and hence minimal scrutiny by the
Court. This judicial restraint seems appropriate in light of the importance of local
contexts in shaping transitional justice policies and preferences. Yet, as the
Dayton Agreement case shows, restraint in human rights scrutiny will not go
so far as to contradict the human rights logic itself.
The overall picture, therefore, is one of an ECtHR that is carefully treading its
judicial path in this politically delicate field, respecting state preferences to a large
extent and yet correcting numerous injustices along the way.
101
Jorgic v. Germany, App. No. 74613/01, ECtHR (12 July 2007).
102
Ould Dah v. France, App. No. 13113/03, ECtHR (dec.) (17 March 2009).

Transitional Justice in The Case Law of The European Court of Human Rights

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Transitional Justice in The Case Law of The European Court of Human Rights

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The International Journal of Transitional Justice, Vol.

Transitional Justice in the Case

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* Human Rights Centre, Ghent University, Belgium. Email: eva.brems@ugent.be

Herzegovina was discriminatory,1 the finding was self-evident in light of the

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The Role of the ECtHR in Domestic Transitional Justice

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The Judicial versus the Political

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International Journal of Transitional Justice, Vol. 5, 2011, 282–303

The Supranational versus the National

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Positive Normativity: What a State Must Do after

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concerning the Bulgarian Communist regime’s repression of the Turkish minor-

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Prosecute Perpetrators of Terror and Violent Repression

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Leave Room for Free Debate about the Past

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When such incriminations are interpreted broadly, they may nevertheless be

Provide Access to Personal Files Kept by the Security Services of

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account of lack of effectiveness of access arrangements in a case in which an

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Not Required: Compensation for Harm Caused by Another

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Negative Normativity: What a State Is Not Allowed

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Property Restitution or Compensation Regimes: Not Any Which

Moreover, while the Court generally grants a wide margin of appreciation to

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a legitimate aim and a means of safeguarding the lawfulness of legal transactions

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As mentioned above, those who are unable to obtain restitution or another

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Conditional Approval: Lustration and Other Restrictions

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of such an interest because what is accepted as an exception must not become a

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be considered acceptable in Latvia in view of the historico-political context which led

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Similarly, the ECtHR unanimously found a violation of Article 10 (freedom of

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justifying a broad margin of appreciation for national authorities and moderation

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Can Do: Overcoming Prima Facie Obstacles to

Prosecution for Acts Not Considered Criminal When Committed

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International Journal of Transitional Justice, Vol. 5, 2011, 282–303

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