Volume 12 (2012): Symposium “After the Empire. International Law and the Post-Soviet Space” Transitional Criminal Justice at the ECtHR: Implications for the Universality of Human Rights

In: International Law from a Baltic Perspective
James A. Sweeney
Search for other papers by James A. Sweeney in
Current site
Google Scholar

  1. Contents

  2. 1 Introduction
  3. 2 Transitional Justice, International Human Rights Law and the Universality of Human Rights
  4. 3 “Successor Trials” and Retroactivity
    1. 3.1 The Berlin Wall Cases: Avoiding Retroactivity by Reference to Extant Law of the Predecessor Regime Itself
    2. 3.2 Continuing to Deal with the Communist Past
    3. 3.3 Dealing with the Pre-Communist Past: The Kononov Case and “Historical Truth”
  5. 4 The ECtHR, Historical Justice and Successor Trials
  6. 5 Conclusion: Tying the Threads and Divining the Implications for Universality

1 Introduction

The early 1990s saw a massive enlargement of the Council of Europe, the parent organisation of the European Convention system. This, in turn, brought a great many new Contracting Parties to the European Convention on Human Rights (echr). 1 The wisdom of the Council’s rapid enlargement and the consequent extension of the jurisdiction of the European Court of Human Rights is not universally accepted. There had been concerns for a long time about the European Court’s idiosyncratic use of the “margin of appreciation” doctrine and its potential to drive a culturally relativist wedge into the European Court’s otherwise strong commitment to the universality of human rights. 2 It was feared that the participation of the new contracting parties would lead to this wedge being driven even deeper into the Convention jurisprudence. 3

This author has argued previously that such fears were not necessary. 4 The Court’s use of the margin of appreciation doctrine in general, and in relation to the States from Central and Eastern Europe in particular, does not amount to a deviation from the universality of human rights. However there was another, less clearly foreseen, potential basis on which the European Court would be called upon to modulate the standards of justice it had hitherto applied. The basis was not cultural, but that the distinctively transitional experiences of the new contracting parties would require some strategic behaviour by the European Court in which it would recognise the need for a special form of justice: transitional justice. We shall return to this concept shortly.

The Parliamentary Assembly of the Council of Europe (pace) offered the new member States advice on the transitional process in the form of Resolution 1096, on “Measures to dismantle the heritage of former communist totalitarian systems”. 5 It identified four principles that should guide the transition process: demilitarisation, decentralisation, demonopolisation, and debureaucratisation. 6 These general principles were accompanied by some more specific recommendations relating to criminal responsibility for acts carried out under the previous regime; the rehabilitation of people convicted of political offences under the former regime; the opening of secret service files; the restitution of property expropriated under the former regime; and the treatment of people who, whilst not the perpetrators of crimes under the former regime, held high positions within the Communist apparatus and are singled out for special treatment in the new regime (such as restrictions on holding public office). 7 This paper focuses on the first of these recommendations, namely the pursuit of those who committed crimes during the previous regime.

The recommendations of Resolution 1096 can be viewed within the paradigm of “transitional justice”. The notion of transitional justice can be understood in two main ways: as an umbrella term for “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”; 8 or, more theoretically, as the modified notion of justice inherent in these policies. Under this second view, transitional justice is the “conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes”. 9

In Teitel’s influential analysis she identified five strands of transitional justice: criminal justice, historical justice, reparatory justice, administrative justice, and constitutional justice. 10 This paper will focus on transitional criminal justice and the search for the truth about contested events in order to secure historical justice. 11 The issues are presented in human rights cases emerging from so-called “successor trials”– trials initiated by the new regime in relation to crimes committed at the behest of the former regime. Although the term “successor trial” is often used in the literature, 12 its use does not imply that the new regime is necessarily a successor State.

2 Transitional Justice, International Human Rights Law and the Universality of Human Rights

Often when we think of the relationship between human rights and transitional justice we are concerned with looking at attempts to deal with the human rights violations of the previous regime. For example Teitel notes that “the most vigorous enforcement of human rights law occurs in transitional periods”, citing the creation of ad hoc tribunals to prosecute human rights abusers from the Rwandan and Bosnian conflicts. 13 Orentlicher’s classic work argues that there is an international legal duty to prosecute violations of the previous regime. 14 The UN’s “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious violations of International Humanitarian Law” recognise inter alia that States have a duty investigate and, where there is sufficient evidence, to prosecute people responsible for human rights abuses. 15

However in this paper we are looking not at the actions of the former regime, but of the current one. Transitional measures taken by the new contracting parties may themselves impact upon human rights: successor trials may come into conflict with principle of non-retroactivity; attempts at property restitution may interfere with the property rights of present occupiers; lustration measures may affect both the right to home, family and private life as well as fair trial rights; wider measures of de-communisation might interfere with political rights, and not only those of communist supporters.

In its early jurisprudence on the Southern European transitions, the Court appeared to rule-out the possibility of a transitional jurisprudence by stressing the importance of Article 1 echr. In Guincho v. Portugal 16 the European Court declined to take the transitional context into account when assessing the reasonableness of the length of proceedings in a civil action for damages sought in relation to a road traffic accident. The Court had stated that it could not,

overlook that the restoration of democracy as from April 1974 led Portugal to carry out an overhaul of its judicial system in troubled circumstances which were without equivalent in most of the other European countries…. 17

However the European Court went on to stress that in Article 1 echr Portugal had guaranteed to secure to everyone the rights in the Convention, including Article 6, and that there was an unavoidable obligation to organise its legal system in compliance with Convention. 18 The European Court’s duty to police the overarching obligation from Article 1 echr precluded it from allowing the transitional context to affect its assessment of Convention compliance.

It has subsequently been suggested that, since the European Court has already recognised that the Convention is a “living instrument”, it has a “mandate” to reorient European human rights law to reflect the idea of transition. 19 However evolutive interpretation of the Convention has tended in the past to result in standards being raised, rather than in the approval of context-specific rights limitations. A clear example would be the evolving standards in relation to Article 3 echr, where in Selmouni v. France the Court explained that,

having regard to the fact that the Convention is a “living instrument which must be interpreted in the light of present-day conditions” … the Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies. 20

Thus there is no clear basis within the Court’s existing jurisprudence on the Convention as a living instrument to introduce a different, lower standard of review for States emerging from periods of democratic transition. Likewise the margin of appreciation doctrine allows for European States to comply with the Convention in a variety of ways but it has always gone “hand in hand” with a European supervision and, in any event, interferences with qualified Convention rights must always be necessary in a democratic, not a transitional, society. 21 This creates problems for international human rights supervisory mechanisms, like the European Court of Human Rights, since by upholding human rights law they might impede transitional policies.

This observation leads us to a series of questions that will be asked when examining the European Court’s jurisprudence on so-called “successor trials”. Firstly, has human rights law been a barrier to the pursuit of transitional criminal justice by contracting parties? We shall investigate the potential conflict between the desire to punish members of the previous regime and the general prohibition on retroactive criminal prosecutions. Secondly, how and in what ways has the advice of the European Court assisted in the formulation, implementation or improvement of transitional policies? Even where the transitional policy is not in direct conflict with the general thrust of European human rights law, there may well be procedural or other defects within the policy that can form the basis for a human rights complaint. However if the European Court were to push for a uniform approach to transitional policies, it would conflict with the general Convention principle of subsidiarity and run counter to the accepted wisdom that locally constructed transitional policies posses greater legitimacy. 22 Thirdly, finally and most importantly, has the European Court of Human Rights altered its standards in respect of the transitional States and thus held itself out as dispensing transitional justice?

The final question is the most significant because if the European Court were to alter its own conception of justice in order to accommodate transitional policies, then it would risk undermining its commitment to the universality of human rights. Transitional criminal justice embodied by the trials of people who served the previous regime present a particularly interesting set of issues, since the European Court generally does not recognise a margin of appreciation in relation to Article 7 echr.

We shall also see that there are more subtle engagements between human rights and transitional justice arising from the cases on these types of trial. Trials in general, Teitel has argued, “are traditional ceremonies affording a ritual to publicly contextualize and share past experience of wrongdoing”. 23 Thus the significance of trials in a transitional context goes beyond determining individual responsibility and beyond the findings of fact in particular cases: they contribute to the establishment of a collective memory. The European Court’s findings of fact may amplify or contradict domestically constructed historical narratives, with a consequent impact on the transition itself. Indeed the judgments of the European Court necessarily become part of the process of historical accounting, whether in cases relating to successor trials or other transitional issues, and by not only their legal findings but also by the presentation of historical matter as background material.

The next part of this paper examines successor trials and retroactivity, whilst the final part returns to the question of historical justice.

3 “Successor Trials” and Retroactivity

Choices about criminal justice in transitional periods have the potential both to affect the construction of the new democratic society and to address past wrongs. 24 Such choices have complex interactions with international human rights law. For example in successor trials the conduct of the individual on trial is subjected to a set of standards that is applied with some degree of hindsight and is, therefore, potentially tainted with retroactivity – which runs counter to intuitions founded on the rule of law. Human rights law, including Article 7 echr, also generally prohibits retroactive criminal prosecutions and could therefore inhibit the implementation of this transitional policy. The new democratic regime must attempt to sidestep or eliminate the rule of law dilemma that retroactivity presents through the deployment of legal techniques of varying degrees of ingenuity. 25

The Council of Europe is certainly conscious of the potential for retroactivity. In pace Resolution 1096, the Parliamentary Assembly gave the following advice:

The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence according to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt.

It can be noted here that the guidance from the Council of Europe is far less detailed than the advice on prosecution initiatives provided in 2006 by the Office of the UN High Commissioner for Human Rights as part of its series of “Rule-of-Law Tools for Post-Conflict States”. 26

Article 7(1) echr itself contains two main principles: firstly that “no one should 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”; and secondly that no heavier penalty shall be imposed than the one that was applicable at the time a criminal offence was committed. The omission of the second element of Article 7 from Resolution 1096 is regrettable. Further, Article 7(2) states that the two core principles “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”.

Both Resolution 1096 and Article 7 echr explicitly deny that prosecutions rooted in an appeal to international standards extant at the material time would constitute retroactivity. We shall see that in its transitional jurisprudence on Article 7 the European Court has thus been called on to pronounce upon the content and historical development of international law, international humanitarian law and international criminal law. 27

3.1 The Berlin Wall Cases: Avoiding Retroactivity by Reference to Extant Law of the Predecessor Regime Itself

The prosecution of East German border guards and their superiors after German reunification has presented some novel and difficult issues. This section focuses on two cases brought before the European Court of Human Rights that concerned such prosecutions.

The two cases are introduced together since they were decided by an identically constituted Grand Chamber of the European Court of Human Rights; the judgments were issued on the same day (22 March 2001); and large portions of the judgments are verbatim reproductions of each other. It is in the contrast between certain elements of them that the fault lines on the application of transitional justice in the reasoning of different judges become clearer.

The applicants in Streletz, Kessler and Krenz v. Germany 28 had all occupied senior positions in the government of the German Democratic Republic (the gdr, or East Germany) and Socialist Unity Party. 29 Krenz had briefly served as the leader of East Germany in 1989, but the prosecution against the gdr’s leader from 1971 until 1989, Erich Honecker, was discontinued on health grounds and he was permitted to leave the country for Chile. 30

The regime had attempted to stop the flow of refugees to the Federal Republic of Germany (West Germany) by building the infamous Berlin Wall in 1961. The integrity of the border was supported by anti-personnel mines, automatic-fire systems and armed border guards. 31 The European Court observed that official figures show that at least 264 people were killed, although there were reports that it could in reality be up to around 1,000 or more. 32 Border guards were told that “border violators” should in all cases be arrested as adversaries or, if necessary, “annihilated”. 33 They were instructed to lay land mines “with a view to halting the movements of ‘border violators’ and … bringing about their arrest or annihilation”. 34

As a result of their actions during time spent as members of the gdr’s National Defence Council, Streletz and Kessler were convicted in 1993 of incitement to commit intentional homicide in relation to victims who died after triggering anti-personal mines or being shot by East German border guards as they attempted to cross to West Germany. In 1997 Krenz was convicted of intentional homicide as an indirect principal for his role in relation to two particular decisions of the Political Bureau and two of the National Defence Council, all of which concerned border policing, and which caused the death of four people who were shot to death by East German border guards. Each applicant had attempted several forms of domestic appeal against their sentence. The applicants had been sentenced to between five and a half and seven and a half years imprisonment.

The case of K.-H. W. v. Germany 35 was brought not by a senior official, but by a former border guard. The President of the European Court agreed to the applicant’s request that his identity not be disclosed. 36 In 1993 K.-H. W was convicted of intentional homicide in relation to the death of a 29 year old man who was shot dead whilst trying to swim away from East Berlin on the night of the 14 to 15 February 1972. At the time of the events, K.-H. W. was aged 20. He was given a suspended sentence of one year and ten months juvenile detention. This approach to sentencing was quite common and indeed only two German border guards ever actually served time for their actions. 37 Teitel has identified the combination of prosecution with minimal punishment as a frequent occurrence within transitional criminal justice, and categorised it as a form of transitional justice that can be labelled the “limited criminal sanction”. 38

All of the applicants in these cases subsequently argued before the European Court of Human Rights that their rights under Article 7 echr had been violated. They all argued that the acts on account of which they had been prosecuted did not constitute offences at the time when they were committed. None were successful. However there was a difference of approach in the two cases, and whilst Streletz, Kessler and Krenz was decided unanimously, there was some dissent in relation to K.-H. W.

The approach to transitional criminal justice taken by the newly reunified Germany was to seek prosecution of crimes perpetrated by the previous regime through a strict application of the criminal law of the gdr that was in existence at the time. 39 Posner and Vermeule would characterise the German courts’ technique for addressing the potential retroactivity of successor trials as “taking nominal law seriously”. 40 Taking nominal, but formally applicable, domestic law seriously may help to resist the accusation that victors’ justice is being imposed. 41 However, critics would argue that in employing this technique successor regimes are merely using subterfuge to disguise the retroactivity of the punitive legislation. 42 In response Posner and Vermeule have argued that similar techniques for balancing retroactivity and justice exist in many legal systems, and that consequently the accusation of subterfuge mistakenly holds transitional States up to standards that would be unrealistic in well-established democracies. 43

The applicants in both of the Berlin Wall cases argued that in the light of State practice at the time, the acts for which they were convicted did not constitute offences. 44 The ex post facto interpretation of the gdr’s criminal law that was necessitated for their conviction to go ahead had been impossible for them to foresee at the time the material events took place. 45 They also alleged that the acts for which they were prosecuted did not constitute offences under international law. 46 In both cases the government argued that the domestic courts’ interpretation of the gdr law was legitimate, and that although contrary practice was established at the time it was foreseeable that the killing of unarmed fugitives might give rise to prosecution at some point, particularly after a change of regime. 47 Indeed if the gdr authorities had applied their own law correctly they would have arrived at the same conclusion. 48

The consideration of foreseeability raised different issues in the two cases. In Streletz, Kessler and Krenz the European Court observed that the gulf between the written law and the actual practice was “to a great extent the work of the applicants themselves”. 49 This was obviously not the case for K.-H. W., who claimed that he was the last link in the chain of command and had always followed the orders he was given. 50 In dealing with this argument, the majority coupled the application of nominal law with an appeal to international principles. The majority identified that the gdr criminal code explicitly stated that both civilians and members of the armed forces were prohibited from citing orders they had received as justification for violating human rights, public international law or the written criminal law. 51 The Court also drew attention to the fact that the applicant had voluntarily enlisted in the army, which amounted to his giving allegiance to the regime. 52 Moreover, unlike the applicants in Streletz, Kessler and Krenz, K.-H. W. was given a suspended sentence precisely because of his having merely followed orders.

The approach of the majority in K.-H. W was not without its critics. Indeed both Judges Baretto and Pellonpää in their partly dissenting opinions described the applicant as a victim of the regime. 53 Even in their concurring opinion Judges Bratza and Vajić conceded that soldiers in the applicant’s position had been “indoctrinated”. 54

In its conclusions on foreseeability, the European Court made the same point of principle in both cases. The European Court acknowledged that the more general problem of how to approach the prosecution of members of the former regime had arisen in a number of other States that had gone through a process of democratic transition. 55 It went on to explain that,

it is legitimate for a State governed by the rule of law to bring criminal proceedings against persons who have committed crimes under a former regime; similarly, the courts of such a State, having taken the place of those which existed previously, cannot be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law. 56

In this passage the European Court recognised that there is something distinctive in transitional cases where crimes committed by and under the previous regime are being considered. This is even clearer in the concurring opinion of Judge Levits in Streletz, Kessler and Krenz, which demonstrates that the Court was fully aware that the courts of the gdr and the German courts after reunification were completely different in their approach to the interpretation and application of the law. 57 Judge Levits conceded that the interpretation of the same legal texts by them would lead to different results. 58 In his view, however, there was “no room” for any solution other than to apply the “old” law according to the approach to interpretation and application of the law which is inherent in the new democratic political order. 59

Does this mean that the European Court held itself out as dispensing transitional justice in these cases? Probably not, since the Court also stressed parallels with its non-transitional jurisprudence. In the past the Court has generally recognised that there is inevitable judicial interpretation in the criminal law, allowing for the explanation of doubtful points and adaptation of the law to changing circumstances. 60 In Streletz, Kessler and Krenz and K.-H. W. the Court found that the same concept “remains wholly valid” even in cases like these, where one State had succeeded the other. 61 Taking this into account, the Court found that the acts committed by the applicants were defined with sufficient accessibility and foreseeability in the gdr at the material time and, therefore, that their prosecution was compatible with Article 7(1) echr. 62

By fitting the “taking nominal law seriously” approach within the general human rights jurisprudence on the gradual evolution of criminal law, the European Court allowed Germany to downplay the rule of law dilemma presented by the disjuncture between the totalitarian and democratic eras. It found legal continuity between the eras in the text of the positive law. Indeed in his concurring opinion in Streletz, Kessler and Krenz Judge Zupančič expressly stated that the approach of the frg courts to the application of gdr criminal law had been “legally consistent”. 63

In a much briefer element of its judgments in Streletz, Kessler and Krenz and K.-H. W. the European Court also found that the acts constituted offences that were defined with sufficient accessibility and foreseeability in international law at the material time. 64 This contributed to the prosecutions’ compliance with Article 7 echr. This particular appeal to international law as a mediating factor was relatively weak, but the European Court certainly validated it as a potentially Convention-compliant approach to successor trials and, in doing so, set the tone for the majority of cases that will be discussed below.

Brems has argued that these cases fall into a category of transitional responses that the European Court has found that States “can do” (i.e. as opposed to those responses that it has prohibited, or those to which it has given only conditional approval). 65 It is arguable that the Court has done a little more than this: by validating both approaches the European Court suggested to other States that they would have some flexibility in choosing transitional criminal justice approaches that aligned with the legal and historical circumstances of their transition.

In summary, in these two cases the European Court confirmed that States facing the rule of law dilemma presented by successor trials could resort both to taking nominal law seriously and to an appeal to international norms, without violating the European Convention on Human Rights. Thus human rights law did not necessarily constitute a barrier to achieving the transitional aim at stake. Although the Court clearly recognised that the backdrop to these cases was important and distinctive, the judgments were presented as a logical extension of existing echr principles rather than an exception to them. It did not therefore appear to modify its own conception of justice to reach this outcome.

3.2 Continuing to Deal with the Communist Past

Following the Berlin Wall cases a series of judgments followed the trend of validating domestic prosecutions via the mediating tool of both extant domestic 66 and international 67 standards. In Korbely v. Hungary, 68 however, a Grand Chamber of the Court 69 found a violation of Article 7 in circumstances that merit some detailed discussion because of its unorthodox approach to the relationship between war crimes and crimes against humanity.

The Korbely case was decided in 2008 and concerned the prosecution of a retired military officer for his part in quelling the 1956 Hungarian uprising against Soviet influence. In the formulation of her proposition that international law is a useful mediating concept in periods of political flux, Ruti Teitel used the Hungarian prosecutions for events in 1956 as an example. 70 She noted that the Hungarian Constitutional Court had declared unconstitutional an explicitly retroactive statute that revived certain political offences. The impugned law was discontinuous with the rule of law. However, Teitel stressed that the same court upheld a new statute that authorised prosecutions relating to the 1956 events, and which was based on war crimes and crimes against humanity (in fact it was these cases that formed the background to Korbely v. Hungary, and as such they were duly summarised in the European Court’s judgment). 71 The rule of law required continuity, Teitel argued, and this was precisely what international law provided. 72 Taking this into account, it is all the more striking that the Grand Chamber found a violation of Article 7 in Korbely’s case.

The prosecution of Korbely related specifically to an event on 26 October 1956, when the applicant led a group of officers in a mission to regain control over the Police Department building in the town of Tata, which revolutionaries had occupied. During the course of the mission, three people were killed – one of whom was shot and killed by the applicant himself. After a series of domestic cases and appeals the applicant was convicted of multiple homicides, which according to the Hungarian courts constituted a crime against humanity punishable under Article 3(1) of the Geneva Convention. 73 As such, the prosecution was not subject to statutory limitation.

The European Court observed that the prosecution was based wholly on international law, and since the prosecution cited the Geneva Conventions the European Court had to check their accessibility to Korbely and the foreseeability of the interpretation given to them. 74 However, if the decisive question was whether it was foreseeable that Korbely’s actions would lead to a prosecution for crimes against humanity, then the classification of the victim under the Geneva Conventions was superfluous. The applicability or otherwise of common Article 3 of the Geneva Conventions would only have been relevant if Korbely was being prosecuted for war crimes, which he was not.

The essential questions should have been whether the actions for which the applicant was prosecuted constituted murder; committed against a civilian population; in a systematic or organised manner in the furtherance of a particular policy. This was explained cogently in the dissenting opinion of Judge Loucaides. The majority did observe that in the materials presented by the Hungarian government there was nothing cited that demonstrated how actions contrary to common Article 3 of the Geneva Conventions could in fact be crimes against humanity. 75 According to the law as it stood in 1956 there would have to be additional elements along with the act constituting murder, in particular that the crime in question should not be an “isolated or sporadic incident”. 76 The European Court found that the Hungarian Supreme Court had not addressed this issue and that, therefore, it was “open to question” whether the constituent elements of a crime against humanity were made out in Korbely’s case. 77 In the light of this, it is slightly odd that the Court then went on to examine whether Korbely’s victim was a “non-combatant” for the purposes of Article 3 of the Geneva Conventions. The real question was whether the victim was part of the civilian population as it is understood in relation to crimes against humanity, which is a similar but distinct question.

Regardless of the above, the Court’s approach to the disputed events was problematic for another reason. It hinged on the interpretation of the actions of both Korbely and his victim on the afternoon of 26 October 1956. Indeed, it was so finely balanced that the essential question was whether when the victim reached into his coat and brought out a handgun he was in the process of surrendering it or attempting to fire upon the applicant and his men. The Hungarian Supreme Court had found that Korbely knew the victim intended to hand over the gun. 78 These are precisely the sort of highly specific and hotly contested events about which domestic successor trials may contribute to the formation of a collective memory and the achievement of historical justice.

The European Court reviewed the findings of fact made by the domestic courts and found that within them there was nothing that could lead to the conclusion that the victim intended to surrender. The victim had “embarked on an animated quarrel with the applicant, at the end of which he drew his gun with unknown intentions”. 79 In the view of the European Court it was not clear enough that the victim was taking no active part in the hostilities, and so it could not be said that he gained protection under the Geneva Conventions. In response to this the joint dissent by Judges Lorenzen, Tulkens, Zagrebelsky, Fura-Sandström and Popović stated that the majority had “on a flimsy, uncertain basis, quite simply substitute[d] their own findings of fact for those of the Hungarian judicial authorities”. 80 Instead, the dissent argued that,

[i]n view of the complexity of the task of reconstructing the facts of the case more than fifty years after they occurred, we see no reason to place more reliance on the conclusions reached by the Court than on those of the domestic courts. On the contrary, we consider that the national courts were in a better position to assess all the available facts and evidence.

The dissenters’ reference to the national courts being in a “better position” is identical to one of the justifications for recognising a margin of appreciation in relation to other articles of the European Convention, and implicitly invokes the notion of subsidiarity. 81

The significance of this is that if the European Court of Human Rights seeks to validate reliance on international norms as one means of securing the legal consistency required to avoid the rule of law dilemma presented by successor trials, then its guidance on the content of those international norms is crucial. With both its approach to the applicable international law, and its approach to the domestic findings of fact, the European Court missed the opportunity to “improve” the transitional policy.

3.3 Dealing with the Pre-communist Past: the Kononov Case and “Historical Truth”

Finally in this part of the paper we turn to case a brought in the post-Communist era but which deals with events that took place before that era even began. The case of Kononov v. Latvia concerned the night-time killing of a number of villagers suspected of collaborating with the Nazis during World War ii. In this case a Chamber of the European Court, sitting prior to the judgment in Korbely, found a violation of the Convention 82 but a Grand Chamber, sitting afterwards, reversed the Chamber’s findings. 83

In a sense it could be argued that this case is not a transitional justice case at all or, if it were, that it concerned the transition between war and peace at the end of World War ii. To that extent the instant parallels might lay with cases concerning the prosecution of Nazi collaborators, which the European Court has consistently found do not violate Article 7 echr, rather than the cases discussed elsewhere in this paper. 84 However, in its submissions before the Chamber the Latvian government drew attention to the importance of trials such as this for the restoration of democracy in Latvia, for establishing “historical truth”, and guaranteeing justice for victims of war crimes and crimes against humanity. 85

The Latvian government’s argument engages the idea of a right to truth – although the case was not itself decided from that perspective. Teitel has argued that the establishment of the truth about repressive prior regimes is a form of transitional justice in its own right. 86 The UN Basic Principles and Guidelines recognise the importance of victims knowing the truth about the human rights abuses that they have suffered. 87 From an initially relatively narrow interpretation of the Article 10 echr right to receive information, 88 there are signs that the European Court has recognised the importance of the right to truth in transitional contexts via its development of positive obligations emanating from Article 2 echr. 89

Returning now to the Kononov case, it is notable that the Russian government intervened in the proceedings (we shall discuss the nature of the intervention in the next section). The involvement of Russia in this case adds an important dimension to the case since the applicant’s allegiances appear to have lain with the former Soviet Union. After the war the applicant was celebrated as a Soviet war hero 90 and received the Order of Lenin, the highest distinction awarded in the ussr, for his activities as a partisan. 91 Until his retirement in 1988, he worked as an officer in the Soviet police force. 92

Kononov was charged, prosecuted and found guilty of war crimes for his part in the killing of the villagers. The Latvian statute of limitations did not apply to such crimes. Note that this case, unlike Korbely, dealt explicitly with war crimes and not crimes against humanity and, therefore, the law of the Geneva Conventions was undoubtedly relevant. When Kononov alleged that his conviction violated Article 7 echr, it fell again to the European Court to determine whether the interpretation of the relevant international law that underpinned his prosecution was sufficiently accessible and foreseeable. If his actions were not war crimes, then the statute of limitations would protect him from prosecution.

The Chamber found no reason to contest the facts as they had been found by the Latvian courts. 93 The Chamber’s 4/3 majority finding that there was a violation of Article 7 echr was based on the conclusion that under the law applicable at the time the victims could not be regarded as civilians, and that therefore their summary execution was not a war crime. 94 This conclusion was supported by a strikingly personal concurring opinion by Judge Myjer, which drew on his upbringing in the Netherlands in the post-war era and went to on explain why he felt that there could be no forgiveness for collaboration with the Nazis. In legal terms, Judge Myjer also argued that it was only after the Nuremburg trials in 1945–1946 that it had become clear that anyone who committed similar crimes could be held personally responsible. Thus Kononov’s acts, committed in 1944, could not be classified as war crimes to which the statute of limitations did not apply.

In its submissions the Latvian government had identified that the Nuremburg trials only punished crimes perpetrated by the Nazis, whereas trials such as Kononov’s allowed some redress for war crimes and crimes against humanity that were perpetrated by the Allies. 95 It was the fact that this case concerned the trial of someone on the side of the Allies that made the case stand out – but perhaps misleadingly. This point was developed in the joint dissenting opinion of Judges Fura-Sandström, Davíd Thór Björgvinsson and Ziemele, in a passage which also drew attention to the enlargement of the Council of Europe and the issue of double standards. They pointed out that,

[t]his case is allegedly different since the applicant belonged to the Allied powers fighting against the Nazis. The legal basis for such an approach is unclear. Why should criminal responsibility depend on which side those guilty of war crimes were fighting on? There is certainly nothing in the Convention itself to limit the application of Article 7 to Nazi crimes alone. On the contrary the Article is drafted broadly and with a specific purpose as the travaux préparatoires amply show. True enough, today the Convention covers many more States then at the time of its drafting. However, now that this expansion has taken place, does that mean that more recent States Parties have different rights and obligations under Article 7? Or, in other words, that the Convention should operate with double standards? We do not think so.

They argued that the majority’s interpretation of the international law at the time was faulty, and that the fact that the Court found the villagers to have held “pro-Nazi views” could not deprive them of the protection afforded to civilians in international humanitarian law. 96 They also drew attention to the historical context, 97 which might suggest that collaboration with Nazi Germany against the ussr was essentially a hard choice between totalitarian regimes. 98

In 2010 the Grand Chamber revisited the Kononov case and found by a majority of 14/3 that there was no violation of the Convention. Attempting to put the actions of the villagers in context, the Latvian government drew on the dissent in the Chamber and argued that the Soviet and Nazi occupations of Latvia were “equally unlawful”. 99 Likewise the government of Lithuania intervened before the Grand Chamber arguing that the Baltic States suffered aggression from both Nazi Germany and the ussr. 100 The significance of these arguments for the European Court’s involvement in the delivery of historical justice is developed in the next section.

The Grand Chamber did not rule on the question of whether the victims were “civilians who had participated in hostilities” or combatants: it simply found that even if they were, they were unarmed at the time and thus, applying the law as it was understood in 1944, were hors de combat. 101

The Grand Chamber considered the questions of accessibility and foreseeability together. It found that, given Kononov’s role as a commanding military officer, he could have foreseen in 1944 that his actions would constitute war crimes. 102 The applicant argued that his prosecution was “politically unforeseeable”, and was in a fact a political exercise. 103 In this regard the European Court went on to recall its earlier dicta on foreseeability in the context of changes of regime. The Grand Chamber again stated that the successor courts “cannot be criticised” for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law and with regard to the “core principles on which the Convention system is built”. 104

This actually extends the approach from Streletz and K.-H. W. in two ways. Firstly it grafts appreciation of the change of regime on to the foreseeability of prosecutions based on international law. Secondly it more explicitly addresses not only transition towards establishing the rule of law, but also transition towards compliance with the core principles of the echr.

4 The ECtHR, Historical Justice and Successor Trials

We noted above that domestic successor trials deal not only with individual criminality but also take on a ritual function, de-legitimating the previous regime and helping to establish the legitimacy of the successor regime. 105 The establishment of the truth about repressive prior regimes is a form of justice in its own right, and although truth and reconciliation processes may be the clearest embodiment of historical justice, successor trials can make a significant contribution. 106

If domestic successor trials play this ritual function in terms of the delivery of historical justice, then undoubtedly (and intentionally or otherwise) the judgments of the European Court of Human Rights in relation to them will take on the same ritual function. It was therefore argued above that the European Court’s approach to the human rights cases generated by such trials could amplify or impede the process of historical accounting that they represent. This was why the Court’s apparent rejection of the Hungarian Supreme Court’s findings on the facts leading up to the prosecution in Korbely was particularly awkward.

There is, therefore, a much broader sense in which the European Court’s judgments on transitional issues will be received as playing a role in historical accounting. Writing in relation to restitution policies, Patrick Macklem has observed that international human rights law has begun to find ways in which to give expression to collective memories. 107 Macklem argues that this does not come naturally to human rights lawyers because of “the field’s fearlessly modernist focus on the present and future at the expense of the past, and for its optimistic tendency to equate human rights with human progress”. 108 Nevertheless, he observes that law can and does play a role in the construction of collective memories. In the same way that statues or monuments may become “memorial sites” by which groups may seek to sustain their collective identity, “[l]aw’s memorial sites are comprised of principles, rules and procedures that invest moments in history with normative significance”. 109

Specifically on the issue of equality claims arising from post-communist property restitution policies, Macklem goes on to contrast the approach of the UN Human Rights Committee and the European Court of Human Rights and finds that the latter remains “thoroughly modernist in orientation in its steadfast resistance to engage the past”. 110

There is yet another important, arguably meta-juridical, sense in which the European Court “does” (or is asked to “do”) historical justice: the way that it presents not just the facts of the case but the broad historical context in which those facts can be placed. The parties themselves may attempt to enlist the European Court’s assistance to settle not only contested facts directly relevant to the case at hand, but also wider historical debates. For example, the circumstances surrounding the Baltic States’ incorporation into the ussr in 1940 have surfaced as background issues in several cases – including the Kononov case discussed in the previous section. It is clear from several cases brought before the European Court that the Baltic States seek recognition that their incorporation into the ussr was unlawful, whereas Russia maintains it was not.

The 2004 Chamber 111 and 2006 Grand Chamber 112 judgments in Ždanoka v. Latvia reached opposite conclusions on the alleged violation of the Convention, which concerned restrictions on the political rights of a communist politician. Of relevance to this paper is that both judgments stated that the European Court would not pronounce on matters of “purely historical fact”. 113 This chimes with Tom Allen’s observations about certain restitution cases which, he argues, show that “there is a reluctance to allow the Court to be used as a forum for hearing disputes that have their origin in the pre-transitional era”. 114 Indeed, Allen concluded that in transitional restitution cases generally “there is a strong (though not universal) belief [within the European Court] that there is little to be gained by investigating the stories of victims”. 115 It is Allen’s reference to “stories” that is relevant. It supports the idea that the European Court could play a role in the construction of historical narratives both within and outside its formal fact finding role, although it is clear that Allen does not think it is doing so at present. Nevertheless the Grand Chamber judgment in Ždanoka went on to observe that,

Latvia, along with the other Baltic States, lost its independence in 1940 in the aftermath of the partition of central and eastern Europe agreed by Hitler’s Germany and Stalin’s Soviet Union by way of the secret protocol to the Molotov-Ribbentrop Pact, an agreement contrary to the generally recognised principles of international law. 116

This observation formed the backdrop to legal discussion of the proportionality of a restriction placed upon the applicant’s rights under Article 3 Protocol 1 echr. By giving recognition to the proposition that the Molotov-Ribbentrop Pact was unlawful, the European Court may have helped the transitional Baltic States in the development of a historical narrative of their experiences under communism.

In the course of its submissions in Kuolelis v. Lithuania the respondent State explained that it had been the subject of “annexation”, and that the Lithuanian government had been “illegally ousted by Soviet occupying forces from 1940 to 1990”. The European Court, however, did not make a finding in this regard since the legally decisive question pertained to the crystallisation of Lithuanian independence from the ussr in the early 1990s, rather than the circumstances surrounding the prior loss of its independence. Nevertheless, in the introduction to the judgment the European Court had referred to the Soviet “invasion” of Lithuania in early 1940 and the completion of the “annexation” in August 1940. 117 These comments were made under the heading of “historical and political background”, and the European Court simply stated that the background “was set out” in the relevant domestic courts. 118 The background materials were not therefore presented as contested domestic findings of material fact, but rather as stable propositions that merely appear in the domestic findings. Thus the European Court seemed content to accept and to repeat the proposition that in 1940 there was an invasion and annexation of the Baltic States.

Although not as explicit as Ždanoka, the approach to the Molotov-Ribbentrop Pact in Kuolelis is consistent with it. Even referring to it as unlawful in the introduction, rather than in the legal findings, lends credence to the position of the Baltic States. Given this relative consistency of approach to the events of 1940, the approach of the European Court in both the 2008 Chamber judgment and 2010 Grand Chamber judgment in Kononov v. Latvia and by the Grand Chamber in Andrejeva v. Latvia 119 merit some discussion. In these judgments the Court seems to have retreated from its earlier observations about the Molotov-Ribbentrop Pact.

The Andrejeva case concerned the applicant’s exclusion from certain elements of a pension entitlement that she would have gained but for the fact that she did not have Latvian nationality. A 16/1 majority in the Grand Chamber found that it was a straight case of discrimination on the basis of nationality for which there was no objective justification: it was undisputed that a Latvian citizen in the same position as Andrejeva, and who had worked at the same “entity” for the same period of time, would gain the better pension. 120 A violation of Article 14 in conjunction with Article 1 Protocol 1 followed (as well as a violation of Article 6).

Judge Ziemele’s long and detailed partly dissenting opinion was predicated on the statement that Latvia had been unlawfully occupied for 50 years, and went on to provide considerable legal and academic support for that assertion. Judge Ziemele argued that there could be no human rights obligation upon an injured State to bear the responsibility for paying a pension earned in the service of the aggressor State to which Latvia was not the successor. 121

Judge Ziemele took particular issue with the majority’s findings and use of language when they discussed the Latvian government’s argument that from the perspective of public international law, Latvia had not inherited the rights and obligations of the former Soviet Union as regards welfare benefits. The majority described the argument as “misconceived”, and continued stating that “[e]ven assuming that the Government were correct on this point, the conclusion that has to be drawn in this case would be unaffected”. 122 The majority expanded on this latter point, but it is the formula “even assuming” that concerned Judge Ziemele:

[T]he phrase ‘even assuming that the Government were correct’ is incomprehensible. Are the majority suggesting that Latvia is a new successor State to the ex-USSR? The adoption of such a position by the Court would go against its own approach in several other cases (for example, Ždanoka v. Latvia [gc] …). 123

[S]aying or implying that Latvia has some automatic obligations stemming from the Soviet period would defy the fact that the occupation and annexation of Latvia were illegal in international law and it would raise a question as to the Court’s compliance with the general principle of ex injuria non jus oritur and the obligation of non-recognition in international law. 124

The real difference with Judge Ziemele’s opinion is the way that the dispute is framed. Indeed she concluded by expressing concern that the Court should not avoid complex matters by dealing with issues in a “narrow and isolated manner”. 125 Wider public international law, including the law of State succession and State continuity, was therefore central to Judge Ziemele’s analysis of the case. 126 Judge Ziemele also stressed that the applicant’s presence in Latvia was typical “of the many people who were encouraged to move to the Baltic republics as part of the policy of Sovietisation and Russification of the Baltic States by the Soviet Communist Party after their unlawful incorporation into the Soviet Union”. 127

The narrowing of the approach to “historical” issues continued in Kononov v. Latvia. In the Chamber’s hearings the parties and Russia as a third party intervener all made submissions on whether Latvia’s incorporation into the ussr in 1940 was lawful. We saw above that the Latvian government specifically drew attention to the importance of successor trials such as this for establishing “historical truth”. 128 As we saw above, the facts of the case related to alleged war crimes committed in 1944. The Chamber reiterated that it would not pronounce on matters of “purely historical fact”, and that for the purposes of the case before it the issues surrounding Latvia’s incorporation were neither decisive nor relevant. 129 The Grand Chamber was faced with the similar arguments. The applicant argued that,

Latvia was lawfully one of the Republics of the ussr since 1940 and it was contrary to historical fact and common sense to state otherwise. The Declaration of 4 May 1990 and his conviction were designed to achieve a condemnation of the annexation of Latvia in 1940 as illegal, rather than a desire to fulfil international obligations to pursue war criminals. 130

The Russian government intervened in support of this position, stating that the European Court “was not competent to re-evaluate history and notably the incorporation of Latvia into the ussr in 1940”. 131

The government of Lithuania intervened alongside Latvia to remind the European Court that it had already recognised that the Baltic States had lost their independence through the Molotov-Ribbentrop Pact (although it cited no cases to support this proposition), and that the Pact was “an undisputed historical fact, an illegal agreement to commit aggression against, inter alia, the Baltic States and resulted in their illegal occupation by Soviet forces”. 132

Despite its earlier finding in Ždanoka, and the Chamber’s references to “annexation” in Kuolelis, the Grand Chamber in Kononov explicitly held that it was “not its role to pronounce on the question of the lawfulness of Latvia’s incorporation into the ussr”. 133 This is a wholesale retreat from the clear statement of the Grand Chamber in Ždanoka, and the summary of apparently uncontested facts in Kuolelis. It may be notable that Judge Ziemele, the Latvian judge, had withdrawn from sitting in the Grand Chamber in Kononov. 134

In 1998 in Lehideux and Isorni v. France the Grand Chamber had held that there was a “category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17”. 135 The European Commission and Court have also made reference to more specific assertions being “historical facts of common knowledge”, such as the fact that people were gassed to death at the Struthof-Natzweiler Nazi death camp (in an inadmissible application brought by someone charged with complicity in the denial of crimes against humanity). 136

From the Ždanoka and Kuelelis judgments, it might have appeared that the events of 1940 were on their way to becoming “historical facts of common knowledge”, rather than “purely historical facts” outside the European Court’s jurisdiction to consider. A cursory examination of basic public international law would show that the acquisition of territory by force was outlawed at least as early as 1928 through the Pact of Paris (also known as the Briand-Kellogg Pact); that the principle was affirmed with the crystallisation of the “Stimson doctrine of non-recognition”; 137 and was explicitly reaffirmed by the Assembly of the League of Nations in 1932. 138 This makes the legal quality of the Molotov-Ribbentrop Pact and its secret protocol at least questionable. 139 The USA never recognised the incorporation of Latvia, Lithuania and Estonia into the ussr, and the UK gave only de facto recognition. 140 In 1987 the Parliamentary Assembly of the Council of Europe passed a Resolution “on the situation of the Baltic peoples” in which it “recalled that the incorporation of the three Baltic States into the Soviet Union was and still is a flagrant violation of the right to self-determination of peoples”. 141 Moreover, and as the Lithuanian government pointed out in the Kononov case, in 1989 the Supreme Soviet of the ussr had even recognised its unlawful aggression towards the Baltic States in its “Resolution on the Political and Juridical Appraisal of the Soviet-German Non-Aggression Treaty of 1939”. 142 Thus whenever the European Court has explicitly or tacitly accepted that the incorporation of the Baltic States into the ussr was by way of annexation, and was therefore unlawful, it has undoubtedly impacted upon the achievement of historical justice in those States by validating such a crucial element of their historical narrative. By contrast, its failure to continue this trend in the Kononov case risks undermining the delivery of historical justice in the Baltic States. It might also appear to the Baltic States that the European Court was influenced by the pressure placed on it by Russia (which, at the time of the Chamber judgment, was still refusing to ratify Protocol 14). 143

In this section we have seen that the judgments of the European Court may play a significant role in the memorialisation of certain events. The Court’s approach to major historical events forming the background to its cases may impact upon the achievement of historical justice in the newer contracting parties from Central and Eastern Europe. In Andrejeva taking greater account of the historical context could have radically altered the scope of the case. The inconsistent approach to the Molotov-Ribbentrop Pact suggests that the European Court either does not recognise these implications, or has consciously retreated from a position in which it might “do” transitional justice by confirming the circumstances by which the Baltic States became subject to totalitarian rule.

5 Conclusion: Tying the Threads and Divining the Implications for Universality

In this paper we have seen that successor trials have raised not only questions about transitional criminal justice but also about historical justice.

In its approach to the national successor trials that have come before it, the European Court has, in every case, accepted the broad legitimacy of the respondent State’s attempt to circumvent the rule of law dilemma that successor trials present. Convention law has not acted as a barrier to successor trials.

The European Court also has great potential to assist in the formulation, implementation and improvement of transitional policies. It was clear even from Streletz, Kessler and Krenz and K.-H. W. that there would be more than one Convention-compliant way of justifying successor trials, including those based on taking nominal law seriously, and those based on international law. In this way, the Court has not undermined the principle of subsidiarity, nor has it imposed a one-size-fits all solution on all the transitional States. The impact upon universality of confirming both approaches is discussed shortly.

However the Court’s track record on confirming whether the interpretation of the relevant law and claimed findings of facts were reasonable is more mixed. Although it claims to recognise that domestic courts have the primary role as fact finders, its approach to the facts of the case in Korbely and the wider circumstances of Kononov were a little problematic. The legal guidance given regarding the relevance of common Article 3 of the Geneva Conventions to the prosecution in Korbely was also a little unorthodox.

The final question is to determine the implications for the universality of human rights. The Court’s approach has a twofold implication for the universality of human rights: diversity between transitional States is recognised in accordance with the principle of subsidiarity, but diversity between the transitional States and democratic States has been downplayed.

The ability of the European Court to accommodate the need for diversity between the different approaches of different transitional statutes is hugely significant. As Oomen has argued, transitional measures gain legitimacy from their “endogeneity”: the extent to which they are rooted in local values of right and wrong, as well as local laws. 144 On this basis as well as in order to respect the principle of subsidiarity, the European Court does well to accommodate a variety of solutions. It may be well poised to identify faults in transitional policies, but it is another exercise altogether to prescribe what ought to be done. 145

Diversity between the transitional and non-transitional cases is only opaquely visible in the Article 7 cases on successor trials. The jurisprudence shows that the European Court considers that factually well-supported prosecutions, based on a legally and historically valid interpretation of war crimes and crimes against humanity, do not amount to retroactive prosecutions. The relevant international law existed at the material time so a prosecution based on it could not violate Article 7 echr. Likewise, the prosecutions in the German Berlin Wall cases were not retroactive because they were based on domestic law that existed at the material time. Nevertheless the reality of the situation is that under both approaches the new regimes have engaged in prosecutions that would probably never have taken place under the former regime.

The European Court does not seem to consider that the pursuit of such prosecutions amounts to impermissible retribution by the new regime. Thus the totalitarian ancien régime and the successor democratic governments are not afforded equal respect: the European Court rightly recognises that States governed by the rule of law and abiding by the core principles of the Convention are entitled to correct the misdeeds of prior regimes that did not.

The subtlety of this approach hinges upon the difference between acknowledging the transitional context, and actually altering the form of justice applied in the case because of it. To ignore the context completely would be to engage in what has been described as the “dynamics of condescension” from Western States towards the newer contracting parties from the East. 146 However since transitional justice is always “non-ideal” the European Court should not seek to become engaged in departing from its earlier standards on this ground, not least of all because the European system itself is not the subject of democratic transition (it is only the contracting parties that are undergoing democratic transition). Moreover, such a departure would put the European Court in the invidious position of avowedly dispensing non-ideal justice in relation to some States but protecting and promoting universal human rights in relation to others. This would by no means be culturally relativist, but could result in precisely the “pernicious ‘variable’ geometry of human rights” that Lester and others feared could materialise via use of the margin of appreciation doctrine in an enlarged Council of Europe. 147

The European Court’s involvement with historical justice is of quite a different order. Firstly whilst there is something inherently judicial about successor trials, legal systems do not necessarily have such a central role in historical accounting. Nevertheless it is clear from the cases discussed above that the European Court’s approach not only to the facts of the case but also to wider issues of historical importance certainly impacts upon historical justice. Secondly it is by no means so clear that human rights law presents a prima facie barrier to achieving historical justice in the way that we saw in relation to successor trials (although we encountered academic commentary that argued the European Court is reluctant to become sufficiently involved in the process of memorialisation). 148 The European Court’s developing reticence towards the events of 1940 would seem also to support this hypothesis.

If human rights law does not constitute a barrier to historical justice, then arguably the European Court could do more in this regard. This is not to say that courts make ideal places for findings of fact, be they material to the case or a part of its background. Legal epistemology can be a little under-developed, 149 and the European Court should do its best to nurture domestic narratives rather than impose internationally palatable official truths. However, and without doing this, there are at least some questions – such as those relating to the events of 1940 – that the Court is surely able to answer without compromising either its neutrality or its commitment to the universality of human rights.


See J.A. Sweeney, ‘Divergence and diversity in post-communist European human rights cases’, 21 Connecticut Journal of International Law (2005) p. 1.


E.g., M. Janis, ‘Russia and the “legality” of Strasbourg law’, 8 ejil (1997) p. 93; R. Kay, ‘The European Convention on Human Rights and The Authority of Law’, 8 Connecticut Journal of International Law (1993) p. 217.


See e.g. the comments of Mahoney and Lester in P. Mahoney, ‘Speculating on the future of the reformed European Court of Human Rights’, 20 Human Rights Law Journal (1999) p.1, at p. 3; A. Lester, ‘Universality versus subsidiarity: a reply’, 1 European Human Rights Law Review (1998) p. 73, at p. 74.


J.A. Sweeney, ‘Margins of appreciation: Cultural relativity and the European Court of Human Rights in the post-Cold War era’, 54 iclq (2005) p. 459.


pace Resolution 1096 on “Measures to dismantle the heritage of former communist totalitarian systems”, text adopted by the Assembly on 27 June 1996 (23rd Sitting).


Ibid., para. 5.


Ibid., paras. 7–14.


“The rule of law and transitional justice in conflict and post-conflict societies”, UN Security Council, S/2004/616, 3 August 2004, p. 4 (para. 8).


R. Teitel, ‘Transitional Justice Genealogy’, 16 Harvard Human Rights Law Review (2003) p. 69, at p. 69; see also R. Teitel, Transitional Justice (oup, New York, 2000), to which frequent reference will be made below.




The present author has addressed other interactions between European human rights law and transitional justice in inter alia J.A. Sweeney, ‘Freedom of religion and democratic transition’, in M. Hamilton and A. Buyse (eds.), Transitional Jurisprudence and the echr: Justice, Politics and Rights (cup, Cambridge, 2011); J.A. Sweeney, ‘Restorative Justice and Transitional Justice at the echr’, International Criminal Law Review (forthcoming 2012); J.A. Sweeney, The European Court of Human Rights in the Post-Cold War Era: Universality in Transition: (Routledge, Abingdon, forthcoming 2012).


See e.g. Teitel, supra note 9, p. 29.


Ibid., p. 228.


D. Orentlicher, ‘Settling accounts: The duty to prosecute human rights violations of a prior regime’, 100 Yale Law Journal (1991) p. 2537; see also D. Orentlicher, ‘“Settling accounts” revisited: Reconciling global norms with local agency’, 1:1 International Journal of Transitional Justice (2007) p. 10.


UN, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by General Assembly Resolution 60/147 of 16 December 2005 (UN Doc. A/RES/60/147), para. 4.


Guincho v. Portugal, 10 July 1984, echr, no. 8990/80, Series A no. 81.


Ibid., para. 38.




M. Varju, ‘Transition as a concept of European human rights law’, European Human Rights Law Review (2009) p. 170, at p. 172.


Selmouni v. France [gc], 28 July 1999, echr, no. 25803/94, echr 1999-v, para. 101.


See Sweeney, ‘Freedom of religion and democratic transition’, supra note 11, p. 118.


B. Oomen, ‘Transitional justice and its legitimacy: The case for a local perspective’, 25 Netherlands Quarterly of Human Rights (2007) p. 141; J. Ramji-Nogales, ‘Designing bespoke transitional justice: A pluralist process approach’, 32 Michigan Journal of International Law (2010) p. 1; L. Viaene and E. Brems, ‘Transitional justice and cultural contexts: Learning from the universality debate’, 28:2 Netherlands Quarterly of Human Rights (2011) p. 199, at pp. 220 et seq.; note also the comments of the UN Secretary General, supra note 8, p. 4.


Teitel, supra note 9, p. 75.


Teitel, supra note 9, p. 67; on prosecutions brought in the Baltic States (and Russian’s reluctance to prosecute) see L. Mälksoo, ‘Soviet Genocide: Communist Mass Deportations in the Baltic States and International Law’, 14 Leiden Journal of International Law (2001) p. 757.


E. Posner and A. Vermeule, ‘Transitional Justice as Ordinary Justice’, 117 Harvard Law Review (2004) p. 761, at p. 792.


Office of the UN High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Prosecution Initiatives (Geneva, United Nations 2006) (HR/PUB/06/4).


See B. Schabas, ‘Synergy or fragmentation: International criminal law and the European Court of Human Rights’, 9 Journal of International Criminal Justice (2011) p. 609 for a positive assessment of the European Court’s contribution to substantive international criminal law.


Streletz, Kessler and Krenz v. Germany [gc], 22 March 2001, echr, nos. 34044/96, 35532/97 and 44801/98, echr 2001-ii.


Ibid., para. 16.


G. Bruce, ‘East Germany’, in L. Stan (ed.) Transitional Justice in Eastern Europe and the Former Soviet Union (Routledge, Abingdon, 2009) p. 26.


Streletz, Kessler and Krenz case, supra note 28, para. 13.




Ibid., para. 15.




K.-H. W. v. Germany [gc], 22 March 2001, echr, no. 37201/97, echr 2001-ii.


Ibid., para. 1.


Bruce, supra note 30, p. 26.


Teitel, supra note 9, pp. 46 et seq.


Streletz, Kessler and Krenz case, supra note 28, para. 27; K.-H. W. case, supra note 35, para. 21.


Posner and Vermeule, supra note 25, p. 794.


Bruce, supra note 30, p. 25.


J. Elster, Closing the books: Transitional justice in historical perspective (cup, Cambridge, 2004) p. 83.


Posner and Vermeule, supra note 25, p. 797.


Streletz, Kessler and Krenz case, supra note 28, para. 46; K.-H. W. case, supra note 35, para. 41.


Streletz, Kessler and Krenz case, supra note 28, para. 47; K.-H. W. case, supra note 35, para. 42.


Streletz, Kessler and Krenz case, supra note 28, para. 47; K.-H. W. case, supra note 35, para. 42.


Streletz, Kessler and Krenz case, supra note 28, para. 48; K.-H. W. case, supra note 35, para. 43; note that in other cases the European Court has been at pains to take into account the way that the law was applied at the material time: C. Murphy, ‘The principle of legality in criminal law under the European Convention on Human Rights’, European Human Rights Law Review (2010) p. 192, at p. 196, citing Kafkaris v. Cyprus [gc], 12 February 2008, echr, no. 21906/04, para. 145.


Streletz, Kessler and Krenz case, supra note 28, para. 48; K.-H. W. case, supra note 35, para. 43.


Streletz, Kessler and Krenz case, supra note 28, para. 78.


K.-H. W. case, supra note 35, para. 66.


Ibid., para. 77, citing Article 95 of the 1968 gdr Criminal Code, and para. 78, citing Article 258 of the 1968 gdr Criminal Code.


Ibid., para. 74.


Ibid., Partly Dissenting Opinion of Judge Cabral Barreto, para. 6; Partly Dissenting Opinion of Judge Pellonpää, joined by Judge Zupančič, first paragraph.


Ibid., Concurring Opinion of Judge Sir Nicolas Bratza, Joined By Judge Vajić, second paragraph.


Streletz, Kessler and Krenz case, supra note 28, para. 80; K.-H. W. case, supra note 35, para. 84.


Streletz, Kessler and Krenz case, supra note 28, para. 80, emphasis added.


Ibid., Concurring Opinion of Judge Levits, para. 5.


Ibid., para. 6.


Ibid., para. 8.


P. van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights (Intersentia, Oxford, 2006) p. 654.


Streletz, Kessler and Krenz case, supra note 28, para. 82; K.-H. W. case, supra note 35, para. 85, emphasis added; c.f. Murphy, who is not convinced by this reasoning, supra note 47, p. 201.


Streletz, Kessler and Krenz case, supra note 28, para. 89; K.-H. W. case, supra note 35, para. 91.


Streletz, Kessler and Krenz case, supra note 28, Concurring Opinion of Judge Zupančič.


Ibid., para. 105. The Concurring Opinion of Judge Loucaides expands upon the Court’s fairly terse reasoning in this regard. Strangely, in his formally concurring opinion Judge Zupančič stated that he found it “difficult to agree” with the finding in paragraph 105. However, in his view, the judgment did not rely on the concept of an “international offence” anyway.


E. Brems, ‘Transitional Justice in the Case Law of the European Court of Human Rights’, 5 International Journal of Transitional Justice (2011) p. 282, at pp. 298 et seq.


Kuolelis and Others v. Lithuania, 19 February 2008, echr, nos. 74357/01, 26764/02 and 27434/02.


Penart v. Estonia (dec.), 24 January 2006, echr, no. 14685/04; Kolk & Kislyiy v. Estonia (dec.), 17 January 2006, nos. 23052/04 and 24018/04, echr 2006-i.


Korbely v. Hungary [gc], 19 September 2008, echr, no. 9174/02.


The case was initially referred to the second section of Court, but the Chamber relinquished jurisdiction in favour of the Grand Chamber in accordance with Article 30 echr. Article 30 allows a Chamber to relinquish jurisdiction where a case “raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court”. See Korbely, ibid., para. 3.


Teitel, supra note 9, pp. 20–21.


Korbely case, supra note 68, paras. 16 et seq.


Teitel, supra note 9, p. 20.


Korbely case, supra note 68, para. 45.


Ibid., para. 74.


Ibid., para. 80.


Ibid., para. 83.


Ibid., para. 85.


Ibid., para. 44.


Ibid., para. 91.


Ibid., Joint Dissenting Opinion of Mr. Lorenzen, Ms. Tulkens, Mr. Zagrebelsky, Ms. Fura-Sandström and Mr. Popović.


See e.g. Handyside v. the United Kingdom, 7 December 1976, echr, Series A no. 24, para. 48.


Kononov v. Latvia, 24 July 2008, echr, no. 36376/04.


Kononov v. Latvia [gc], 17 May 2010, echr, no. 36376/04.


See e.g. the 1997 admissibility decision of the European Commission in Touvier v. France (dec.), 13 January 1997, ECommHR, no. 29420/95 and the 2001 admissibility decision in Papon v. France (No. 2)(dec.), 15 November 2001, echr, no. 54210/00. In both cases the elements of the application based on Article 7 echr and which related to alleged war crimes and crimes against humanity committed during World War ii were declared inadmissible.


Kononov (Chamber), supra note 82, para. 92.


Teitel, supra note 9, p. 72.


UN Basic Principles, supra note 15, paras. 22(b) and 24.


Leander v. Sweden, 26 March 1987, European Court of Human Rights, no. 9248/81, (1987) 9 ehrr 433, para. 74.


See Association “21 December 1999” and others v. Romania, 24 May 2011, echr, nos. 33810/07 and 18817/08.


Kononov [gc], supra note 83, para. 158.


Kononov (Chamber), supra note 82, para. 30.




Kononov (Chamber), supra note 82, para. 111.


Kononov (Chamber), supra note 82, para. 131 (in respect of the men); Kononov (Chamber), supra note 82, para. 139 (in respect of three women).


Kononov (Chamber), supra note 82, para. 92.


Ibid., Joint Dissenting Opinion of Judges Fura-Sandström, Davíd Thór Björgvinsson and Ziemele, para. 12.


Ibid., note in particular footnote 14.


See also Kononov (Chamber), supra note 82, Individual Dissenting Opinion of Judge David Thór Björgvinsson, para. 2.


Kononov [gc], supra note 83, para. 152.


Ibid., para. 179.


Ibid., para. 216.


Ibid., para. 237.


Ibid., para. 234.


Ibid., para. 241.


Teitel, supra note 9, p. 73. Again, this is not to imply that the successor regime is necessarily also at the head of a successor state.


Ibid., p. 72.


P. Macklem, ‘Rybná 9, Praha 1: Restitution and Memory in International Human Rights Law’, 16:1 ejil (2005) p. 1.


Ibid., p. 13.


Ibid., p. 14.


Ibid., p. 21.


Ždanoka v. Latvia, 17 June 2004, echr, no. 58278/00.


Ždanoka v. Latvia [gc], 16 March 2006, echr, no. 58278/00, echr 2006-iv.


Ždanoka [gc], supra note 112, para. 96; Ždanoka (Chamber), supra note 111, para. 77.


T. Allen, ‘Restitution and Transitional Justice in the European Court of Human Rights’, 13:1 Columbia Journal of European Law (2007) p.1, at p. 30. See also T. Allen and B. Douglas, ‘Closing the Door on Restitution: The European Court of Human Rights’, in Hamilton and Buyse, supra note 11.


Allen, supra note 114, p. 45.


Ždanoka [gc], supra note 112, para. 119.


Kuolelis, supra note 66, para. 8.


Ibid., para. 7.


Andrejeva v. Latvia [gc], 18 February 2009, echr, no. 55707/00.


Ibid., para. 87.


Ibid., Partly Dissenting Opinion of Judge Ziemele, para. 10.


Ibid., para. 78, emphasis added.


Ibid., Partly Dissenting Opinion of Judge Ziemele, para. 17.


Ibid., para. 22.


Ibid., para. 41; see also the Partly Concurring and Partly Dissenting Opinion of Judge Mijović, joined by Judge Hajiyev and the Dissenting Opinion of Judge Bonello in Sejdić and Finci v. Bosnia and Herzegovina [gc], 22 December 2009, echr, nos. 27996/06 and 34836/06, both of which accuse the majority in that case of “divorcing” the respondent State from its own recent history when they held that elements of the Dayton Peace Agreement were contrary to the European Convention.


It is worth noting Judge Ziemele’s citation of the Commission decision in Jasinskij and others v. Lithuania, where in 1998 the Commission clearly found that Lithuania was not the successor to the ussr in a case where the applicants argued that Lithuania should be responsible for certain debts owed by the ussr: Jasinskij and others v. Lithuania (dec.), 9 September 1998, ECommHR, no. 38985/97.


Andrejeva v. Latvia, supra note 119, Partly Dissenting Opinion of Judge Ziemele, para. 27.


Kononov (Chamber), supra note 82, para. 92.


Ibid., para. 112.


Kononov [gc], supra note 83, para. 16, emphasis added.


Ibid., para. 174.


Ibid., para. 179.


Ibid., para. 210.


Ibid., para 7.


Lehideux and Isorni v. France, 23 September 1998, echr, Reports of Judgments and Decisions 1998-vii, para. 47.


Marais v. France (dec.) 24 June 1996, ECommHR, no. 31159/96.


See Q. Wright, ‘The Stimson Note of January 7 1932’, 26 American Journal of International Law (1932) p. 342.


See generally D.J. Harris, Cases and Materials on International Law, 5th edition (Sweet & Maxwell, London, 1997) pp. 218 et seq.


See D. Žalimas, ‘Legal Issues on the Continuity of the Republic of Lithuania’, 2 Hawaiian Journal of Law and Politics (2006) p. 73, at pp. 74 et seq.; see also the discussion in Mälksoo, supra note 24, pp. 761 et seq.


R. Wallace, International Law, 3rd edition (Sweet & Maxwell, London, 1997) p. 99.


pace Resolution 872 (1987) “On the situation of the Baltic peoples”, text adopted by the Assembly D 28 January 1987 (25th Sitting), para. 3.


Kononov [gc], supra note 83, para. 179; Žalimas, supra note 139, p. 76; S.D. Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’, 48:3 iclq (1999) p. 545, at p. 557.


Russia ratified Protocol 14 on 18 February 2010: details available at <https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/194/signatures/> (accessed 30 April 2020).


Oomen, supra note 22, p. 146.


Of course the Court’s introduction of pilot judgments in respect of some of post-Cold War restitution cases merits study in this regard: see Sweeney, ‘Divergence and Diversity’, supra note 1, pp. 36 et seq.; see more generally P. Leach et al., An Analysis of ‘Pilot Judgments’ of the European Court of Human Rights and Their Impact at National Level (Intersentia, Oxford, 2010).


M.-B. Dembour and M. Krzyzanowska-Mierzewska, ‘Ten Years On: The Voluminous and Interesting Polish Case Law’, European Human Rights Law Review (2004) p. 517, at p. 517.


Lester, supra note 3, p. 76.


E.g. Allen, supra note 114; Macklem, supra note 107.


See A. Good, ‘Expert Evidence in Asylum and Human Rights Appeals: an Expert’s View’, 16:3 International Journal of Refugee Law (2004) p. 358, at p. 375 lamenting that for lawyers facts are often seen as “philosophically unproblematic”. See also A. Good, Anthropology and Expertise in the Asylum Courts (Routledge, Abingdon, 2007); J.L. Montrose, ‘Basic concepts of the law of evidence’, 70 Law Quarterly Review (1954) pp. 527–555; W. Twining, ‘Taking Facts Seriously’, reprinted in W. Twining, Rethinking Evidence: Exploratory Essays, 2nd edition (cup, Cambridge, 2006). This research is discussed by the present author in J.A. Sweeney, ‘Credibility, proof and refugee law’, 21:4 International Journal of Refugee Law (2009) p. 700, at p. 725; J.A. Sweeney, ‘The “lure” of facts in asylum appeals’, in S. Smith (ed.) Applying Theory to Policy and Practice: Issues for Critical Reflection (Ashgate, Aldershot, 2007).

  • Collapse
  • Expand


All Time Past Year Past 30 Days
Abstract Views 127 40 12
Full Text Views 3 2 0
PDF Views & Downloads 6 3 0