Research and Development in Public Law

Research and Development in Public Law

Strategies for Strengthening the Implementation of the Principle of Restitution in Situations of Shared Responsibility before the European Court of Human Rights

Articles in Press

Document Type : Original Article

Authors
saeed mokhtari 1
Mohamad Setayeshpur 2
1 PhD Student in International Law, Faculty of Law, University of Qom, Qom, Islamic Republic of Iran.
2 Associate Professor, International Law, Faculty of Law, University of Qom, Qom, Iran.
10.22034/jrpl.2026.2077990.1198
Abstract
Abstract



The present article examines the conceptual and institutional challenges of implementing restitution in situations where multiple States simultaneously share responsibility for the commission of human rights violations. Restitution, as a remedial concept, aims to restore the injured party to the position that existed prior to the wrongful act. However, when several States or international organizations contribute to the occurrence of such violations—namely in scenarios of shared responsibility—the application of this concept encounters profound theoretical and practical difficulties. The core question addressed in this study is how the effectiveness of implementing restitution in such contexts may be strengthened, both normatively and institutionally. To answer this question, the article employs an analytical-descriptive approach and relies on a citation-based method to examine the 2020 Draft Principles on Shared Responsibility, as well as the jurisprudence of the European Court of Human Rights, including Hirsi Jamaa v. Italy, Ilaşcu v. Moldova and Russia, and Catan v. Moldova and Russia. The findings indicate that one of the principal obstacles is the absence of binding mechanisms for cooperation among responsible States and the lack of an expansive interpretation of the notion of a “collective victim.” The research further demonstrates that the explicit recognition of the principle of solidarity in compensatory responsibility is a fundamental condition for ensuring effective reparation. The principle of solidarity entitles the victim to claim full reparation from any responsible State, while allowing States, thereafter, to exercise rights of recourse among themselves. In practice, however, reparations tend to be limited to monetary compensation, and restitution in its genuine sense remains largely unrealized. The article ultimately proposes several solutions, including explicit endorsement of the principle of compensatory solidarity, the establishment of joint restorative commissions, the expansion of the concept of restitution to institutional and collective levels, and the strengthening of the role of the Committee of Ministers of the Council of Europe. These measures would elevate restitution from a predominantly judicial and individual remedy to a cooperative, structural, and justice-oriented process, and could enable a transition from “symbolic restitution” to “genuine restitution” within the framework of restorative justice in the European system.
Keywords
Institutional Restitution
Collective Victim
Joint Restorative Commission
Shared Responsibility
European Court of Human Rights
Subjects
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Research and Development in Public Law

Articles in Press, Accepted Manuscript
Available Online from 07 February 2026