The European Court of Human Rights (ECtHR) vis-à-vis amnesties and pardons: factors concerning or affecting the degree of ECtHR’s deference to states

Abstract

States have adopted amnesties/pardons concerning serious human rights violations to transition from crises, dictatorships, or conflicts worldwide, including Europe. Although the ECtHR has yet to review amnesties/pardons directly, it has increasingly decided on the effects of amnesties/pardons on the rights of individuals. Thus, the main research question herein is to identify which factors may determine whether and to what extent the ECtHR defers to states regarding amnesties/pardons in cases of serious human rights violations, namely, factors concerning or affecting the degree of ECtHR’s deference to states in these cases. Based on ECtHR’s jurisprudence on amnesties/pardons, this article argues and finds that these factors generally are: the national process of adoption, application, and/or validation of amnesties/pardons; consideration of the margin of appreciation or discretion given to states; state compliance with international obligations on human rights; and potential impact on transitions to peace, reconciliation, democracy, and/or the rule of law. This article aims to fill a gap in scholarship by proposing an explicit, detailed, and analytical systematization of factors that, in light of ECtHR’s jurisprudence, may explain whether and to what extent the ECtHR defers to states in cases of amnesties/pardons concerning serious rights violations, including identification of ECtHR’s (emerging) jurisprudential trends.