Reparations: A Comparative Perspective

This article focuses on the treatment of reparations in recent jurisprudence of the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ). In the so-called “prisoner cases,” Assanidze v. Georgia and Ilascu and Others v. Moldova and Russia, the ECHR moved beyond its previously limited approach to reparations by finding that continued detention of the lawsuit applicants would entail a prolonged violation of the Convention for the Protection of Human Rights and Fundamental Freedoms and then asking the States to immediately release the prisoners. The author then turns to ECJ immigration cases Zhu v. Sec’y of State for the Home Department and Jia v. Migrationsverket, in which the Court held that third country nationals have the right to stay in a member state of the European Union. The author shows that both courts addressed the issue of reparations in light of the restoration of rights by bringing the States into compliance with their treaty obligations. Both courts also demonstrated their willingness to move beyond mere monetary damages when dealing with reparations for the violation of fundamental rights by either directly addressing the States in order to force them to take action to stop the human right violation, or by indirectly modifying domestic immigration law regimes