Giving up on individual justice? The effect of state non-execution of a pilot judgment on victims
| Author | Eline Kindt |
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| DOI | http://doi.org/10.1177/0924051918785005 |
| Subject Matter | Articles |
Article
Giving up on individual justice?
The effect of state non-execution
of a pilot judgment on victims
Eline Kindt
PhD Research Fellow at the Human Rights Centre of Ghent University, Ghent, Belgium
Abstract
TherecentjudgmentoftheECtHRinBurmych and others v. Ukraine has shed new light on the
question of how it regards individual justice in the context of the pilot judgment procedure. Con-
fronted with a State reluctant to execute a previouspilot judgment, the Court has chosen to absorb
all similar pending cases in the execution process at the Committee of Ministers. This article
examines the pilot judgment procedure from the perspective of the involved applicants and aims to
answer the question whether in thiscontext the Court has given up onindividual justice all together.
Keywords
European Court of Human Rights, European Convention on Human Rights, Committee of
Ministers, pilot judgment procedure, subsidiarity, execution of judgments, individual justice,
right to individual petition, access to justice
Introduction
Much has been written about the pilot judgment procedure and its contested negative impact on the
rights of the applicants involved. Selecting one applicant or a group of lucky applicants in order to
address the issue rather than the individuals affected by the pilot judgment has prompted a
literature where the Court has been said to ignore the interests of the victims by freezing their
cases and sending them back to the domestic system.
1
The Court itself has continuously stressed in
Corresponding author:
Eline Kindt, PhD Research Fellow at the Human Rights Centre of Ghent University, Ghent, Belgium, Universiteitstraat 4
Gent 9000, Belgium.
E-mail: Eline.Kindt@UGent.be.
1. Antoine Buyse, ‘The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges’
(2009) 57 Nomiko Vima 1890, 1902; Janneke H Gerards and Lize R Glas, ‘Access to Justice in the European Convention
on Human Rights System’ (2017) 35 NQHR 11, 27; Antonio Di Marco, ‘L’e´ tat Face aux Arreˆts Pilotes de la Cour
Netherlands Quarterly of Human Rights
2018, Vol. 36(3) 173–188
ªThe Author(s) 2018
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its case-law that by working efficiently, it also acts in conformity with the rights of the applicants
by addressing the issue first, as solving the issue would be beneficial to all affected.
2
With the recent judgment of Burmych and others v. Ukraine, the Court has had to admit defeat
when confronted with a reluctant State.
3
In the case, it addressed a situation in which Ukraine had
not executed the previous pilot judgment of Yuriy Nikolaeyevich Ivanov.
4
In the Ivanov pilot case,
the Court found that Ukraine had a systemic problem of non-execution of domestic judgments and
ordered Ukraine to take general m easures to address the issue. Ukraine fail ed to remedy the
problem, resulting in not only the absence of a solution for the applicants already at the Court
but also creating a new influx of similarly situated victims on the Court’s docket. In light of this,
the Court chose to strike all of these cases out of its list and to absorb them in the execution process
for the Ivanov pilot judgment. It has thus refused to deal with all of these similar cases and has
passed the problem on to the Committee of Ministers, which leads to question how this develop-
ment must be regarded from the perspective of the applicants.
This article will look at this new procedural tactic of absorbing the pending cases into the
execution phase of a previous similar pilot case from the viewpoint of the applicants involved. It
will examine whether the Court is continuously moving away from the right to individual petition
by taking the Burmych judgment as the focal point and putting it in context. To this end, in the first
section, this article will start with an introduction of the pilot judgment procedure by discussing its
aims and inner workings. Subsequently, the pilot judgment procedure will be looked at from the
perspectives of both the Court and the applicants. The last sub-section will then bring these two
viewpoints together and examine whether they are mutually exclusive. The second section will
apply the framework of the first section to the Burmych case. A thorough discussion of the history
of the case will be followed by an analysis of the Court’s reasoning and an examination of the
Europe´ enne des Droits de l’Homme’ (2016) 108Revue Trimesterielle des Droits de l’Homme 887, 903; Antoine Buyse,
‘Flying or Landing? The Pilot Judgment Procedure in the Changing European Human Rights Architecture’ in Oddny
´
Mjo¨ ll Arnardo´ttir and Antoine Buyse, Shifting Centres of Gravity in Human Rights Protection. Rethinking Relations
between the ECHR, EU and National Legal Orders (Routledge 2016) 106; Markus Fyrnys, ‘Expanding Competences by
Judicial Lawmaking: the Pilot Judgment Procedure of the European Court of Human Rights’ in Armin von Bogdandy
and Ingo Venzke, International Judicial Lawmaking – On Public Authority and Democratic Legitimation in Global
Governance (Springer 2012) 361.
2. The Court has partly justified its procedural choice for the pilot judgment procedure on the urgent need to offer redress to
all persons involved. It has done so in Broniowski v Poland (friendly settlement) ECHR 2005-IX, para 35; Glykanzi c
Gre
`ceApp no 40150/09 (ECtHR, 30 October 2012) para 67; MC et autres c Italie App no 5376/11 (ECtHR, 3 September
2013) para 115; Michelioudakis c Gre
`ceApp no 54447/10 (ECtHR, 3 April 2012) para 64; Torreggiani et autres c Italie
App nos 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 et 37818/10 (ECtHR, 8 January 2013) para 90;
Vassilios Athanasiou et autres c Gre
`ce App no 50973/08 (ECtHR, 20 December 2010) para 44; Ananyev and others v
Russia App nos 42525/07 and 60800/08 (ECtHR, 10 January 2012) para 190; Burdov v Russia (No 2) ECHR 2009-I, para
130; Dimitrov and Hamanov v Bulgaria App nos 48059/06 and 2708/09 (ECtHR, 10 May 2011) para 109; Gazso
´v
Hungary App no 48322/12 (ECtHR, 16 July 2015) para 31; Gerasimov and others v Russia App nos 29920/05, 3553/06,
18876/10, 61186/10, 21176/11, 36112/11, 36426/11, 40841/11, 45381/11, 55929/11 and 60822/11 (ECtHR, 1 July
2014) para 218; Manushaqe Puto and others v Albania App nos 604/07, 43628/07, 46684/07 and 34770/09 (ECtHR, 31
July 2012) para 109; Neshkov and others v Bulgaria App nos 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and
9717/13 (ECtHR, 27 January 2015) para 271; Rumpf v Germany App no 46344/06 (ECtHR, 2 September 2010) para 62;
Varga and others v Hungary App nos 14097/12, 45135/12, 73712/12, 34001/13, 44055/13 and 64586/13 (ECtHR, 10
March 2015) para 100.
3. Burmych and Others v Ukraine App no 46852/13 et al (ECtHR, 12 October 2017). The case will be explained more
detailed below.
4. Yuriy Nikolayevich Ivanov v Ukraine App no 40450/04 (ECtHR, 15 October 2009).
174 Netherlands Quarterly of Human Rights 36(3)
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