engleski

Transitional justice cases and European Court of Human Rights: evidence of international custom

Transitional jurisprudence of regional human rights institutions presents “social memory in society”, and by that, gives the chance to (re)evaluate the past, and to label actors as victims or perpetrators. Human rights law focuses on the responsibility of the main institutional transitional justice actors, primarily the state, to evaluate to what extend the legal boundaries were transgressed in various transitional justice policies while starting from the individual human rights position (see e.g. Schabas, Varju, Brems, Sweeny). In that respect recent ECHR’s Grand Chamber judgment of May 27, 2014 in the case of Marguš v. Croatia (application no. 4455/10) will be analyzed. Moreover, the presentation focuses on the interconnection of regional human rights jurisprudence, the use of European human rights law as the reference to customary international law. According to Appeals chamber of the ICTR (Brayagwiza, 1999, para 40) human rights treaties such as ECHR and Inter-American Convention on Human Rights and the jurisprudence developed are persuasive authorities which may be of assistance in applying and interpreting the International Tribunal´s applicable law. Thus, they are not binding of their own accord on the tribunal. They are however, authoritative as evidence of international custom. The transitional cases “bequeath a double legal legacy” (Hamilton and Buyse, 2011): they are read into domestic judicial reasoning and thereby inform and shape political and legal agendas at the national level. Therefore, the transition cases have also led to realignment of the ECHR´s ordinary jurisprudence and “a more bold articulation of the state´s positive obligations”. Following the typology of PACE Resolution 1096 on the „Measures To Dismantle The Heritage Of Former Communist Totalitaran Systems“ and corresponding to the Teitel´s categories of TJ (transitional criminal justice, historical justice, reparatory justice and administrative justice) cases of ECHR where transitional jurisprudence questions are particularly present will be analyzed.

European Court of Human Rights; Transitional jurisprudence; International criminal law; International custum

Lecture under special panel: WG9-20 INTERNATIONAL, REGIONAL, NATIONAL AND LOCAL MECHANISMS OF TJ: CONFLICT OR ADDED VALUE? (presented by the European Criminology Group on Atrocity Crimes and Transitional Justice) Panel Chair: Nandor Knust (Max Planck Institute for Foreign and International Criminal Law, Germany)