Victims and Retributive Responses at the European Court of Human Rights: Scrutinizing the Coercive Dimension of Reparations
iCourts Working Paper Series No. 155
Forthcoming in 'Coercive Human Rights: Positive Duties to Mobilise the Criminal Law under the ECHR’, Natasa Mavronicola and Laurens Lavrysen (eds.)
23 Pages Posted: 11 Mar 2019
Date Written: February 19, 2019
The case law of the European Court of Human Rights (ECtHR or the Court) elicits a tendency by the Court to place certain obligations on States to protect the European Convention on Human Rights (ECHR) rights by recourse to criminal law. These obligations are either of a substantive nature, e.g. obligations of States to criminalize certain human rights violations or of a procedural nature, referring, for instance, to the obligations for States to prosecute and punish perpetrators. The paper consists in a rigorous analysis of the Court’s case law concerning gross human rights violations and posits that these obligations pertain to the Court’s reparations regime, as well as have reparative value for victims, inasmuch as they amount to satisfaction and guarantees of nonrepetition measures, as conceptualized by the van Boven/Bassiouni Basic Principles on Reparations. At the same time, the paper argues that, from a victim’s perspective these obligations might contribute to the alleviation of harm, restoration of social standing and worth of victims, and restoration of shared values. Amid criticism that the Court, by placing such obligations on States, may be guilty of ‘coercive overreach’, the current paper welcomes this approach and concludes that, to the extent that these measures are implemented by the States at the national level, they carry positive implications for victims before the ECtHR.
Keywords: European Court of Human Rights, Just Satisfaction, Reparations, Reparative Justice, Coercive Obligations, Victims, Gross Human Rights Violations, van Boven/Bassiouni Basic Principles on Reparations
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