'Restitution and Transitional Justice in the European Court of Human Rights'

Abstract

This Article examines the response of the European Court of Human Rights to claims for the restitution of property that was unlawfully or unjustly taken during a period of authoritarian rule. It demonstrates that, with some exceptions, it has not supported restitution. In some circumstances, this reflects different visions of the rule of law and its function in maintaining stability of entitlements. Is the rule of law furthered by allowing individuals to challenge legality of old takings and confiscations, or by ensuring the titles of current owners are upheld? In other cases, it is apparent that there are different beliefs on the relevance of principles of "ordinary" justice in transitional cases. In "ordinary" cases, states have a wide discretion to adjust property titles in pursuit of social and economic justice. However, many (but not all) judges doubt that the principles derived from "ordinary" cases are relevant to transitional cases, with the result that they give states much less discretion in restitution cases. These differences can be explained in terms of different visions of the institutional function of the Court itself. In most cases, the Court implicitly accepts the modernist faith that new legal institutions are sufficient to prevent a recurrence of the past. The creation of the Court, in particular, provides closure for the international community, the state, and especially for individuals who suffered under the old regime. There is no need for the Court to provide a forum for a further hearing of individual complaints of past injustice.