The Functioning of the Pilot-Judgment Procedure of the European Court of Human Rights in Practice
| Date | 01 March 2016 |
| DOI | 10.1177/016934411603400104 |
| Published date | 01 March 2016 |
| Author | Lize R. Glas |
| Subject Matter | Article |
Netherlands Q uarterly of Human Ri ghts, Vol. 34/1, 41–70, 2016.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 41
THE FUNCTIONING OF
THE PILOT-JUDGMENT PROCEDURE
OF THE EUROPEAN COURT OF
HUMAN RIGHTS IN PRACTICE
L R. G*
Abstract
Since the Court adopted its rst pilot judgment in 2004, another 24 such judgments
and an even greater number of follow-up rulings to these judgments have ensued.
is article analyses and comments on the functioning of the procedure which these
judgments set in motion: the pilot judgment procedure (PJP). Insights are thereby
provided into a procedure that is of great importance to (potential) applicants to
the Court and to the European Convention on Human Rights system from both a
practical and a principled perspective. Rule 61 on the PJP, which the Court inserted
to its Rules in 2011, provides the framework for the analysis, which is divided into
the three stages of the procedure: run-up, judgment and execution. Based on the
observations in the article, recommendations are made as to how the Court could
improve the PJP’s functioning. One such recommendation is that the Court could
perhaps make better use of the possibility to join application brought by di erent
persons in the case selected from treatment under the PJP. is approach can help
shed light on di erent aspects of the structural problem identi ed in the judgment
and uncover its full scope.
Keywords: European Convention on Human Rights; European Court of Human
Rights; execution; pi lot-judg ment procedure; rules of Court
* Assistant professor of European Law, Depar tment of International and Europea n Law, Radboud
University (l.glas@jur.ru.nl). e author wrote a PhD t hesis on the dialogic po tential and funct ion
of ECHR procedures , such as the PJP and var ious procedures related to t he execution of the Cou rt’s
judgments: e eor y, Potential and Practice of Procedural D ialogue in the European Convention
on Human Rights Sys tem (Intersentia 2016).
Lize R. Glas
42 Intersentia
1. INTRODUCTION
Over ten years have passed since the European Court of Human Rights (Court)
delivered its rst pilot judgment in the case of Broniowski v. Poland.1 is judgment
heralded a new adjudicatory approach, coined t he ‘pilot-judgment procedure’ (PJP or
procedure).2 e aim of the PJP is to assist resp ondent States in remedying st ructural
domestic problems and to induce them to resolve large numb ers of cases arising from
such problems.3 ese problems concer n, for example, the lack of domestic remedies,
in combination with the non-enforcement of domestic court decisions4 or the
excessive length of proceedi ngs,5 and can also relate to the r ight to property6 or prison
conditions.7 In the early years of the procedure, some unc ertainty existed as to which
elements distingu ish a pilot judgment proper from a non- or semi-pilot judgment.8 e
1 ECHR 2004 -V; S ee for an elaborate disc ussion of this judgment V ladimiro Zag rebelsky, ‘Questions
autour de Broniowksi ’ in Lucius Ca ish and others (eds), Human Rights – S trasbourg Views; Liber
Amicorum Luzius Wildhaber (N.P. Engel 2007); See also Antoine Buyse, ‘ e Pilot Judgment
Procedure at the Eu ropean Court of Human R ights: Possibilities and C hallenges’ (2009) 57 Greek
Law Journal 1890, 1891–1894.
2 See for more information a bout the origin of the procedure Costas Pa raskeva, ‘Huma n Rights
Protection Beg ins and Ends at Home: e ‘Pilot Judgment Procedure’ De veloped by the European
Court of Human R ights’ (2007) 3 HRLC, 7–8; Erik Fribergh, ‘Pilot Judg ments from the Cour t’s
Perspective’ (Stock holm Colloquy, 9–10 June 2008) ww.coe.int/t/dghl/standardsetting/cdd h/
Publications/Stoc kholm_Procee dings.pdf> acces sed 9July 2015.
3 Greens and MT v UK App nos 6 0041/08 and 60054 /08 (ECtHR, 23November 2010), paras 107–108,
117; See for more information about the back ground to the procedure Lech G arlicki, ‘Broniowski
and A er: On the Dual Nature of “Pilot Judgments” in Lucius Ca ish and others (eds), Human
Rights – Strasbou rg Views; Liber Amicorum Luz ius Wildhaber (N.P. Engel 2007), 185.
4 See eg Burdov v Rus sia (no 2) App no 33509 (ECtHR, 15January 20 09); Olaru and Others v Mol dova
App no 476/07 and others (ECtHR, 28July 2009); Ivanov v Ukraine App no 40450/04 (ECtHR,
15Oc tobe r 20 09); Ge rasimov and Others v R ussia App no 29920/05 and ot hers (ECtHR, 1July 2014).
5 See eg Rumpf v Ger many App no 46344/06 (ECtHR, 2 September 2010); Athanasiou and Others v
Greece App no 50973/08 (ECtHR, 21De cember 2010); Dimitrov and Hamanov v Bulgaria App no
48059/06 and 2708/09 (ECt HR, 10May 2011); Kaplan v Turkey App no 242 40/07 ( ECtHR , 20Ma rch
2012); Michelioudakis v Greece App no 54447/10 (ECtHR, 3April 2012); Glykantzi v G reece App no
40150/09 (ECtHR, 30Oc tober 2012).
6 See eg Broniowski (n 1); Hutten-Czapska v Poland App no 35014/97 (EHRC 2006-VIII); Suljagić v
Bosnia and Herz egovina App no 27912/02 (ECtHR, 3November 20 09); Glykantzi (n 5); Ališić and
Others v Bosnia and Herzegovina, Croatia, Serbia , Slovenia and the former Yugoslav Republic of
Macedonia App no 60642 /08 (ECtHR, 16July 2014).
7 See eg Ananyev and Others v Russia App nos 42525/07 a nd 60800/08 (ECtHR, 10Ja nuary 2012);
Torreggiani and Oth ers v Italy App no 43517/09 and others (ECtHR, 8Janua ry 2013).
8 See Garlick i (n 3); Luzius Wildhab er, ‘Pilot Judgments in Cases of Struc tural or Systemic Problems
on the National Le vel’ in Rüdiger Wolfru m and Ulrike Deut sch (eds), e E uropean Court of Human
Rights Overwhelmed by Applications: Problems and Possible Solutions (Springer 2008), 71; Buyse
(n 1), 1898; David Milner, ‘Codi cation of the Pilot Judgment Procedure’ (Seminar at the Court,
Strasbourg , 14June 2010)
Strasbourg /David%20Milner%20paper.pdf> acce ssed 9 July 2015; Françoise Tulkens, ‘Perspective
from the Court; A Typology of the Pilot-Judgment Pro cedure’ (Seminar at the Court, Strasbourg,
14June 2010)
pilot%20judgments%2 0seminar%2014%20June%202010%20_Tulkens_.pd f> accessed 9July 2015.
e Functioning of th e Pilot-Judgment Procedure of
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Netherlands Q uarterly of Human Ri ghts, Vol. 34/1 (2016) 43
insertion of Rule 61, on the PJP, into the Rules of Court in 2011 clari ed this matter.
Since then, a pilot judgment can be de ned as a judgment in which the Court both
identi es a problem that has given or may give ris e to similar applications and orders
binding measures wh ich the respondent State must take to remedy the problem.9 Rule
61 has not only clari ed which elements constitute a pilot judgment, but also which
steps should be taken prior to the application of the procedure and which orders,
other than t hat of remedial measu res, the Court c an make in the judgment. Further,
some clues on how the procedure is to proceed a er a pilot judgment has been adopted
can be found in the Rule.
Although the de nition of a pilot judgment and the course of the PJP may have
gained clarity on paper with the introduction of Rule 61, many questions remain
about the procedure. e questions, for example, of whether t he Court indeed follows
the prescriptions in the Ru le, how it uses the discretion le to it by the Ru le, and when
the procedure ends remain. is article will formulate answers to such questions,
aiming, as it does, to give an overview of and analyse the functioning of the PJP in
practice.10 is aim means that ma ny di erent aspects of the procedure a re addressed
rather than that certain aspects are discussed at great length. Providing such an
overview has the value of giving insight into a procedure that has a ected tens of
thousands of potentia l applicants11 and a comparably high number of applicant s with
pending applications.12 ese numbers make the PJP of great practical signi cance
to the Court. If t he procedure – as its purpose states – induces the respondent States
9 Rule 61(3) of the Court.
10 Others have also described the f unctioning of t he procedure but their contributions o en date
from a few years back , analyse the procedu re from a di erent per spective (eg adequacy of nation al
response, collaboration between t he Court and the national courts and dialogue) or focus on
speci c judgments. See Pa raskeva (n 2); Philip Leach and others , Responding to Systemic Human
Rights Violation s; An Analysis of ‘Pilot Judg ments’ of the European Cour t of Human Rights and eir
Impact on the National Level (Intersentia 2010); Wojciech Sadurski, ‘Pa rtnering with Strasb ourg:
Constitutiona lisation of the Europea n Court of Human Right s, the Accession of Centra l and East
European States to the Council of Europe, and the Idea of Pilot Jud gments’ (2009) 3 HRLR 397;
Janneke Gera rds, ‘ e Pilot Judgment P rocedure before the Europ ean Court of Huma n Rights as an
Instrument for Di alogue’ in Monica Cla es and Patricia Popelier (eds),Constitutional Conversations
(Intersenti a 2012); Dominik Ha ider, e Pilot-Judgment Pro cedure of the European Cour t of Human
Rights (Brill 2013).
11 See eg for numbers of po tential applicants: ne arly 80,000 (Broniowski (n 1), para 193), some 100,000
landlords and 600,000–900,000 tenants (Hutten-Czapska (n 6), para 235) and 70,000 (Greens and
MT (n 3), para 111).
12 See eg for (approximateumbers of pending applications (of an ever larger number of applicants):
167 (Broniowski (n 1), p ara 193), 18 (Hutten-Czapska (n 6), pa ra 236), approximately 700 (Burdov (n
4), para 133), 300 (Olaru (n 4), para 53), 1,350 submitted on behalf of more than 13,500 applicants
(Suljagić (n 6), para 63), some 55 (Rumpf (n 5), para 69), several hundred (Atanasiu and Others
App nos 30767/05 and 33800/06 (ECtHR , 12October 2010), para 217), 2,500 (Greens and M .T. (n
3), para 111), approximately 200 (Athana siou (n 5), para 51), approximately 500 (Finger v B ulgaria
(App no 37346/05) ECtHR, 10May 2 011, pa ra 115), 200 (Dimitrov and Hamanov (n 5), para 110),
approximately 250 (Ananyev (n 7), para 184), hundreds (Kaplan (n 5), para 63), more than 250
(Michelioudakis (n 5), para 71), more tha n 250 (Glykantzi (n 5), para 74), some 600 (Gerasimov (n 4),
para 213) and 1,850 of more than 8, 000 applicants (Ališić (n 6), para 144).
Lize R. Glas
44 Intersentia
to resolve large numbers of cases, it can make the Court’s caseload of about 63,800
pending applications more manageable.13 e procedure is also of relevance from a
more principled perspective becaus e if the States resolve a problem domestically they
ful l their primary obligation to secure the rights and freedoms guaranteed in the
European Convention on Human Rights (Convention), which allows the Court to
stick to its subsidiary t ask to ensure the observance of t he engagements undertaken by
the States Parties.14 is task , as the Court has noted in some pilot judgments, ‘is not
necessarily be st achieved by repeating the same nd ings in a large series of cases’.15
In addition to analysing the practice of the procedure, the article intends to
comment on this practice. e comments relate inter alia to the consistency of the
Court’s practice and to the ex tent to which it motivates the choices which it makes in
the course of the procedure. Based on such comments, some recommendations are
made as to how the Court could improve the f unctioning of the PJP.
e description given in thi s article is based on the (in total) 24 f ull pilot judgments
and the follow-up rulings to t hese judgments which the Court issued u ntil 1July 2015.
For the purposes of this a rticle, full pilot judgments are de ned as judgments
1. that the Cour t quali es as such;16
2. in which the Cou rt identi es the problem that has g iven or may give rise to similar
applications; and
3. in which the Cou rt orders the remedial measures wh ich the respondent State must
take in the operat ive provisions of the judgment.17
ese th ree conditions have been applied strictly, meaning t hat pilot judgments in all
but name are not taken into consideration.18
Rule 61 is taken as a star ting point for analysing the PJP. e procedure is therefore
regarded from the Court’s perspective, as it is for the Court to apply the Rule and
as only the Court’s rulings are relied upon. e examination of the PJP is divided
into three stages. e run-up to the procedure is discussed rst, a er which the
pilot judgments themselves are addressed and, lastly, the stage of execution of the
judgments is outlined. Eac h stage is discussed in a separate sec tion, which consists of
13 ECtHR, ‘Pending Appl ications Allocated t o a Judicial Formation’ (30June 2015)
Documents/Stats _pending _month_2015_BI L.pdf> acces sed 9July 2015; See also Para skeva (n 2), 14.
14 Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR) arts 1 and 19; See also Luzius Wild haber,
‘Consequences for th e European Court of Huma n Rights of Protocol No 14 and the Resolut ion on
Judgments Reveal ing an Underlying Systemic Problem – Practical Steps of Implementation a nd
Challenges’ (H igh-level Seminar in Oslo, 18O ctober 2004)
cddh/Publ ications/osloseminar_ e.pdf> accesse d 9July 2015.
15 See eg Burdov (n 4), para 127; Olaru (n 4), pa ra 51; Greens and MT (n 3), para 108.
16 Philip Leach, Taking a Case to the European Court of Human Rights (3 rd edn, Oxford University
Press 2011), 87.
17 Rule 61(3) of the Court.
18 See eg Zorica Jovanović vS erbia App no 21794/08 (ECtHR, 26Marc h 2013).
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a part describing t he practice of the PJP in the relevant stage and a part com menting
on the description. e last section ma kes, based on the observations in the precedi ng
three sections, some recommendations as to how the Court could improve the
functioning of t he PJP in practice.
2. RUNUP TO THE PROCEDURE
It is clear from Rule 61 that the PJP ca nnot be applied to just any application. Rather,
certain hurd les must be taken in t he run-up to the adoption of a pilot judgment. e
rst hurd le is that the conditions for the application of the procedu re must be ful lled.
Further, the Court must seek the views of the parties on the application of the PJP.
In the run-up, both the Cou rt and the parties can i nitiate the procedure. is section
describes these hurd les rst and then comments on them.
2.1. DESCRIPTION
2.1.1. Conditions for the Application of the Procedure
e Court may initiate a PJP ‘where t he facts of an application reveal i n the Contracting
Party concerned the existence of a structural or systemic problem or other similar
dysfunction which has given rise or may give rise to similar applications’.19 e
procedure can therefore only be initiated when two conditions have been ful lled.
First, a certain problem must exist that, second, has caused in the past or may cause
in the future si milar applications. When deciding to apply the PJP, the Court a lways
alludes to the rst condition. Only in one case did the second condition seem to be
the sole factor warranting the PJP’s application.20 To demonstrate the existence of a
dysfunction, the Court usually not only refers to the second condition, but it also,
for example, cites ndings of domestic authorities21 or the Committee of Ministers
(Commit tee)22 or an acknowledgement of the State.23 e d iscussion of the underlying
problem resulted in all but eight ca ses24 in the conclusion that a ‘practice incompatible
with the Convention’ existed.25
19 Rule 61(1) of the Court; S ee for the meaning of ‘sy stemic’ and ‘struct ural’ Tulkens (n 8); See for more
information about v iolations of a structu ral nature Paras keva (n 2), 2–5.
20 Ališić(n 6), para 144.
21 Broniowski (n 1), para 189; Hutten-Czapska (n 6), para 237; Burdov (n 4), paras 132–133.
22 Burdov (n 4), para 132; Ivanov (n 4), para 87; Neshkovand Othe rs v Bulgaria App no 6925/10 and
others (ECtHR, 27Ja nuary 2015), para 268.
23 Olaru (n 4) para 56; Ananyev (n 7), par a 188; Torr eg gia ni (n 7), para 87.
24 Broniowski (n 1); Hutten-Czapska (n 6); Suljagić (n 6); Greens and MT (n 3) ; Ananyev (n 7); Ališić(n
6); Neshk ov(n 23); Varga and Others v Hungar y App no 14 097/12 and others (ECtHR , 10 March
2015).
25 See eg Burdov (n 4), paras 131–135; Ivanov (n 4), paras 83–88; Atan asiu (n 12), paras 219–228.
Lize R. Glas
46 Intersentia
As regards the second condition, the Court usually points out the number of
previous judgments if a case c omes to be considered a er several judgments in wh ich it
has already found a comparable violat ion.26 e Court may also identi fy the failing in
the domestic legal order for the rst time in t he case to which the PJP is applied. 27 In that
situation, the number of simi lar pending applications is noted.28 Reference to previous
judgments or pending applications is, however, not always made, becaus e in the context
of a dysfunction ‘the potential in ow of future cases is also an important consideration
in terms of preventing the accu mulation of such repetitive cases on the C ourt’s docket’.29
e procedure can therefore also be applied when ‘only a few similar applications’ are
pending before the Court.30 In line with this approach, the Court may further specify
the number of persons potentially a ected by the problem.31 In some cases, the group
of applicants forms an identi able class of citizens,32 but is it not required that such a
class exists.33 General ly, the Court does not use many words, other than t hose required
to mention the rst t wo conditions just outlined, to reason its decision to apply the PJP.
In other words, it does not elaborately motivate its dec ision to apply the procedure.34
2.1.2. e Views of the Parties
Before initiating a PJP, the Court must seek the views of the parties on whether
the application under examination results from a widespread problem and on
the suitability of a case for the procedure.35 Already before the introduction of
this requirement in the Rules, the parties could present their views in connection
with Article 46.36 e States have expressed their views in various ways: they
have admitted37 or denied38 the existence of a problem; argued that they have
already taken appropriate general measures;39 le the decision to the Court;40 and
26 Atanasiu (n 12), para 215; See also Burdov (n 4), para 129; Ivanov (n 4), para 83.
27 See eg Broniowski (n 1); Hutten-Czapska (n 6).
28 See eg Broniowski (n 1), para 193; Hutten-Czapska (n 6), para 236.
29 Kurić and Others v Sloven ia App no 26828/06 (ECtHR, 26 June 2 012), para 414, emphasis added.
30 Ibid, emphasis added.
31 Broniowski (n 1), para 193; Hutten-Czapska (n 6), para 235.
32 Broniowski (n 1), para 189; See for an exception Burdov (n 4); para 129 a nd Michelioudakis (n 5),
paras 63–64.
33 Burdov (n 4), para 129; Athanasiou (n 5), para 43; Glykantzi (n 5) , para 66.
34 See eg Ivanov (n 4), para 81; Rumpf (n 5), para 62; Puto and Others v Alban ia App no 604/07 and
others (ECtHR, 31July 2 012), para 109; See for an exception Ananyev (n 7), para s 184–190.
35 Rule 61(2)(a) of th e Court.
36 Broniowski (n 1) is an exception in this regard be cause the Court did not present t he views of the
parties und er Article 46 ECHR .
37 See eg Olaru (n 4), para 56.
38 Burdov (n 4), para 124; Michelioudakis (n 5), para 56; Glykantzi (n 5), para 59 ; Gerasimov (n 4), para
209; Neshkov(n 22), para 263.
39 Kurić (n 29), para 402.
40 See eg Rumpf (n 5), para 58.
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welcomed recommendations of the Court on how to solve the problem.41 In other
cases they have objected to t he application of the PJP42 or explained that the e ective
application of the PJP would be di cult.43 A State has expressly consented, welcomed
recommendations or did not oppose to the procedure only seven times.44 e
applicants have explained why a dysf unction exists and, alb eit less o en, why in their
view a case is suita ble for the PJP. Only one applicant opposed the application of the
procedure squarely, because he did not accept that h is case would receive a treatment
similar to that of other cases.45 In two other instances, the applicants were rather
critical: in t he one case, they questioned the util ity of the PJP, because the Cour t had
already indicated general measures previously;46 in the other, they stated that they
did not oppose its application, unless it meant that the examination of their case
would be suspended.47
2.1.3. Initiative for the PJP
Rule 61 stipulates that a PJP ‘may be initiated by t he Court of its own motion or at the
request of one or both partie s’.48 Although not expressly stated, t wo judgments hint at
a request by the respondent State. In Atanasiu and Others v. Romania, the State ‘saw
the so-called “Polish solution” adopted in the wake of the Broniowski judgment as a
possible working hypothesis’49 and asked t he Court to assist it in tack ling the domestic
problem ‘by indicating as clearly as possible the course of action to be followed’.50
Further, the judg ment in Puto and Others v. Albania reveals that t he respondent State
considered that the ‘case would […] be suitable for the application of the [PJP]’ and
that it ‘reserved the right to formally request the application of the [PJP] at a later
stage’.51 It is a lso po ssible that r eques ts were made i n other case s, but s uch req uests are
not referred to in the judgments. In only one pi lot judgment was it clearly stated t hat
41 See eg Finger (n 12), para 110; See also Dimitrov and Hamanov (n 5), para 105.
42 See eg Ivanov (n 4), para 77; Suljagić (n 6), para 59; MC and Othe rs v Italy App no 5376/11 (ECtHR,
3September 2013), para 107; Gerasimov (n 4), para 209; Ališić (n 6), para 141 (Serbia and Slovenia
objected).
43 Greens and MT (n 3), para 104; Ališić(n 6), para 141.
44 Olaru (n 4), para 48; Atanas iu (n 12), paras 204–206; Finger (n 12), para 110 (not very clear: ‘ e
Government nonethele ss stated that they would welc ome any recommendation made by the C ourt
with a view to overcoming the issues raised by the case’); Dimitrov and Hamanov (n 5), para 105
(not very clear as in Finger); Puto (n 34), para 101; Torre gg ia ni (n 7), para 81 (‘Le Gouvernement ne
s’oppose pas à l’application de la pro cédure de l’arrêt pilote’); Ališić(n 6), par as 95, 141 (Serbia and
Slovenia objected).
45 Torre g gi ani (n 7), para 82.
46 Puto (n 34), para 99.
47 MC (n 42), para 108.
48 Rule 61(2)(b) of the Court.
49 (n 12), para 204.
50 Ibid, para 206.
51 (n 34), para 101.
Lize R. Glas
48 Intersentia
the applicant thoug ht a PJP ‘was required’.52 is does, however, not necessari ly mean
that the applicant requested the procedure’s application. On the contrary, the Court
probably initiated the procedure, as it asked whether the case warranted a PJP when
communicating t he case to the parties.53
2.2. COMMENTS
e description of the run-up to the procedure con rms that the Court generally
closely follows its Rules of Court. It indeed e stablishes whether the conditions for the
application of the procedure are fu l lled and it al so gives the parties the possibi lity to
present their views.
Strikingly, however, the Court has concluded in the majority of cases that a
‘practice incompatible with the Convention’ existed when establishing whether the
said conditions had been ful lled, whil st Rule 61 does not instruct the Court to ver ify
whether this quali cation pertains. When the Court used this quali cation for the
rst time in a pilot judgment, it did not contemplate its meaning.54 It referred only
to a judgment in which it had explained t hat the ‘accumulation of identical breaches
which are su ciently numerous to amount not merely to isolated incidents’ and
which ‘re ect a continuing situation that has not yet been remedied and in respect
of which litigants have no domestic remedy ’ constitute a practice that is incompatible
with the Convention.55 Although the conditions in Rule 61may be interpreted to
require such a practice, the question remains why the Court does not just establish
whether the two conditions in Rule 61 have been ful lled. is question is relevant
in particular because the Court did not include the requirement that a practice
incompatible with the Convention exists in the Rules of Cour t, even though Rule 61
was dra ed a er some pilot judgments had been issued in which t he Court concluded
that such a practice existed. Moreover, it is unclear what the consequences are, if
any, of qualifying a problem as such, although the Court has stated in a non-pilot
judgment that a practice does not of itself constitute a separate violation.56 Also, the
nding that such a practice exists has constituted ‘an aggravating circumstance’ of
a violation found outside the context of the PJP.57 is approach does, however, not
clarify why the Court uses the quali cation. On the contrary, it leads to even more
questions, namely whether this nding also applies to pilot judgments and, again,
what the consequences are, if a ny, of nding an aggravated v iolation.
52 Gerasimov (n 4), para 208.
53 Gerasimov v Russ ia and 14 other Applications (10April 2012) (Communic ated case), question 4.
54 Burdov (n 4), paras 131–135.
55 Bottazzi v Italy ECHR 199 9-V, para 22; e Court used the ter m for the rst time with a compa rable
de nition in Ire land v UK Series A no 25, par a 159.
56 Ireland (n 55), para 159.
57 Mennitto v Italy ECHR 200 0-X, para 30; See als o Bottazzi (n 55), para 22; Bielectric Srl v Italy App
no 36811/97 (ECtHR, 16November 2000), pa ra 32.
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As was noted above, the Court does not elaborately reason its decision to apply
the procedure. is makes it di cult to establish why the procedure is applied ‘to
some systemic situations, a nd not others’.58 In addition, it is not always clear why one
particula r application is selected for treatment under the PJP from a usua lly large pool
of comparable applications. When this means the Court does not always select the
most representative case the risk a rises that the PJP is conducted ‘in respe ct of certain
complex systemic problems on the basis of a single case which may not reveal the
di erent aspects of the systemic problem involved’, according to the Parliamentary
Assembly.59 A connected risk is that the respondent State only sets up a remedy for
persons in the same sit uation as the applicant, rather t han for persons in a comparable
situation, and thus limits the scope of the remedy. is risk materialised following
Burdov v. Russia (no. 2). e sole applicant in that case had obtained a favourable
domestic judgment, establi shing an obligation on the authorities to make a pay ment,
which remained unenforced. Subsequent to the pilot judgment, Russia set up a
domestic remedy which only provided for compensation in respect of the delayed
enforcement of judgments ordering a payment, but the new scheme did not apply to
judgments obliging the authorities to provide or comply with obligations in kind.60
In the case of Gerasimov and Others v. Russia, a follow-up judgment to Burdov, the
Court joined di erent applications, probably in order to underline the la rge scope and
di erent manifestations of the domes tic problem.61
Respondent States do not seem to be overly keen on the procedure’s application.
ey neither normally welcome the procedure’s application, nor seem to request of
their own motion that the Court applies the procedure. e States can feel restraint
because they may think that acknowledging t hat a case is suitable for the PJP can be
interpreted as an admission of a violation.62 It may, however, also be the case that
States are actua lly keener on the procedure than appears from the judg ments. In any
case, the applica nts are clearly more positive than the States . Nevertheless, it seems as
if they do not use their r ight to propose that the Court initiates the procedu re.
58 Leach and others (n 10), 173; See eg Scordino v Italy (no. 1) ECHR 2006-V, paras 229–240 ;
See also Stuart Wallace, ‘Much Ado about Nothing? e Pi lot Judgment Procedure at
theEuropeanC ourtofHumanRig hts’ (2011) 1 E HRLR 71, 79.
59 Implementation of judgments of the Eu ropean Court of Human Rights, Parliamenar y Assembly
Resolut ion 1516 (2Octo ber 200 6), para 21; S ee also Ewa Łętow ska, ‘Co -operat ion of th e ECHR wi th
Supreme National Judicia ry Bodies (Consult ative Opinions) and the Role of Popula rising the Case -
law of the ECHR’ in CDDH (eds), Reform ing the European Convention on Hum an Rights: A Work in
Progress; A Com pilation of Publica tions and Docume nts Relevant to the On going Reform of the ECHR
(Council of Europe Pu blishing 2009), 207; Leach a nd others (n 10), 34; Buyse (n 1), 1902.
60 Gerasimov (n 4), par a 96.
61 Ibid, para 213.
62 Monica Mijic, ‘Chapter 2: Discussion (Moderated by Jakub Wołąsiewicz) in Pilot Judgment
Procedure in the Europ ean Court of Human Rights and the Future De velopment of Human Rights’
Standards and P rocedures; ird Informal Seminar f or Government Agents and Other Inst itutions
(Kontrast 2009), 132–133.
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50 Intersentia
e Court has applied the procedure in spite of an expression of the respondent
State’s opposition or denial of the existence of a str uctural problem. Clearly therefore,
the State’s views are not of overriding importance to the Court’s decision to initiate
the PJP. e question remains, however, how in uential their views are. As can be
derived from explanations g iven by a member of the Registry, more important tha n the
respondent State’s view on the suitability of a case for the PJP may be whet her a pilot
judgment likely meets with a ‘cooperative stance’ of the respondent State in carrying
out the remedies ordered.63 e State’s view and cooperative stance are not the same
because initia l opposition to the application of the PJP does not necessarily mea n that
the pilot judgment will not be abided by once adopted and thus meet a cooperative
stance. Nevertheless, the question of cooperation is only an ‘exploratory question’.64
As the Court has explained, ‘the speedy resolution of execution issues is greatly
assisted by the pro-active investment of the respondent Government’ in the PJP, but
its competence to undertake a PJP i s ‘not conditional on a Government’s conduct’.65
3. THE PILOT JUDGMENT
Once the run-up to the PJP has been completed, the Court issues a pilot judgment.
e content of a pilot judgment is not signi cantly di erent from other judgments,
to the extent that the Court decides the individual case on its merits in much the
same fashion as it would do in a non-pilot judgment. Only when the Court applies
Article46 of the C onvention (binding force and execution of judgments), the content
becomes di erent. e description in this section therefore focuses on the Court’s
considerations under this Article and under Article 41 (just satisfaction). ese
considerations can be divided into four elements, based on Rule 61: identi cation of
the nature of the problem necessitating the application of the procedure, remedial
measures (ordered with a time limit), the individual question of just satisfaction,
and the more general question of what is to be done with comparable cases. It is
important to bear in mind, however, that the Court itself hardly refers to Rule 61 in
its pilot judgments, although it may follow the presc riptions in the Rule and adopted
14 ju dgmen ts a er the Rule was adopted. If it refers to the Rule at all, it does so in a
general sense66 and it refers to separate paragraphs of the Rule only exceptionally.67
63 John Darcy, ‘Chapt er 2: Discus sion (Moderated by Ja kub Wołąsiew icz) in Pilot Judgm ent Procedure
in the European Cour t of Human Rights and the Future Developm ent of Human Rights’ Standards
and Procedures; ird Informal Seminar for Government Agents and Other Institutions (Kont rast
2009), 134; See al so Buyse (n 1), 1902.
64 Ibid.
65 Demopoulosand Other s v Turkey App no 46113/99 and others (ECtHR, 1March 2010), para 81.
66 See Dimitrov and Hamanov (n 5), para 4; Finger (n 12), para 4; Kaplan (n 5), para 62; Kurić and
Others v Sloven ia App no 26828/06 (ECtHR, 12March 2 014) (Friendly settle ment judgment), para
7; Ališić(n 6), para 143.
67 See Ananyev (n 7), para 235; Kurić (n 30), para 415.
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Nevertheless, the description discusses the content of the pilot judgments along the
lines of these four elements since they constitute a useful analytical framework. e
description in thi s section is followed by comments.
3.1. DESCRIPTION
3.1.1. Identi cation of the Nature of the Problem
Rule 61 obliges the Court to identif y the nature of the structural or systemic
problem or other dysfunction as established in its pilot judgment in the operative
provisions,68 and, indeed, the Court usually makes a clear identi cation to this
e ect. It already did so in its rst pilot judgment, years before the requirement was
added to the Rules of Court.69 However, in spite of this early practice and the more
recent provision in the Rules of Court, it does not always add the identi cation to
the operative provisions.70
e identi cation of the problem is usually not coupled with an analysis of
the problem and its causes.71 e judgment in Ananyev and Others v. Russia is an
exception in this rega rd, as the Court there felt ‘compelled to address the underlyi ng
structur al problems in greater depth [and] to examine the sou rce of those problems’.72
Gerasimov may also be called an exception since the Court addressed one aspect of
the problem speci cally, that is, t he matter of the delayed enforcement of judgments
ordering th e allocation of housin g by the State.73 Moreover, the Court explained why
these delays weakened the ba ili s’ capacity to ensu re enforcement in accordance with
the law and why the continuous lack of domestic remedies aggravated the structu ral
problems.74
3.1.2. Remedial Measures
In addition to the nature of t he problem, the Court must identif y remedial measures
which the respondent State is to take at the domestic level by virtue of the operative
provisions.75 e Court indeed identi ed the type of measures in the operative
provisions of each pilot judgment.
68 Rule 61(3) of the C ourt.
69 See eg Broniowski (n 1), para 3 dictu m.
70 See Atanasiu (n 12); An anyev (n 7); Kaplan (n 5); Kur ić (n 29); Puto (n 34); To rr eg gi an i (n 7); MC (n
42); Neshkov(n 22); Varga (n 24) .
71 Broniowski (n 1); Burdov (n 4); Atanasiu (n 12); Rumpf (n 5); Athanasiou (n 5); Ališić(n 6).
72 (n 7), para 190; See also (les s elaborate) Olaru (n 4), paras 54, 57; Neshkov(n 22), paras 272–273.
73 (n 4), para 214.
74 Ibid, para 215.
75 Rule 61(3) of the Court, emphasis added; Se e for criticism of this approach Hutten-Czapska v
Poland App no 35014/97 ( ECtHR , 28Apri l 200 8) (Friend ly set tlemen t judgme nt), Par tly Dis sentio n
Opinion of Judge Zag rebelsky.
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52 Intersentia
e remedies required ca n have a preventive or compensatory character. Preventive
remedies aim to resolve the actual problem identi ed; compensatory remedies
provide for damages to persons subjected to the violations caused by the problem.
In cases concerning the prolonged non-enforcement of domestic court decisions
and a lack of domestic remedies as well as cases concerning the excessive length of
proceedings and a lack of domest ic remedies, the Court seem s to focus predominantly
on compensatory remedies.76 In the other cases, a preventive remedy i s usually called
for.77 In Broniowski, however, the Court gave the respondent State the choice bet ween
the two ty pes of remedies,78 and in the two cas es concerning conditions of detention,
it clari ed that both remedies were needed.79
e description of the measures in the operative provisions remains general; the
Court does not specif y which measure the State must take.80 To illustrate, the Cou rt
has ordered the implementation of a Convention right,81 a mechanism maintaining
a fair balance between di erent interests,82 and an e ective domestic remedy or
combination of such remedies capable of securing adequate and su cient redress.83
Even more generally, the Court directed the respondent State to ‘produce, in co-
operation with the [Committee] a binding time frame in which to make available a
combination of e ective remedies’84 and to ‘bring forward […] legislative proposals
intended to amend’ domestic leg islation.85
e measures ordered in the operative provisions are preceded by directives
about these measures in the merits. In that part of the judgment, the Court
sometimes stres ses that it will absta in ‘from indicating a ny speci c ge neral measures
to be taken’, for example, because the process of domestic reform ‘raises a number
of complex legal and practical issues which go, in principle, beyond the Court’s
judicial function’.86 It defers to the Committee, because that body ‘is better placed
and equipped to monitor’ this process.87 Comparably, the Court has abstained
from indicating any speci c general measures because the Committee had already
76 See eg Burdov (n 4), para 6 dictum; Olaru (n 4), para 5 dictum; Rumpf (n 5), para 5 dictu m;
Athanasiou (n 5), para 5 d ictum.
77 See eg Hutten-Czapska (n 6), para 4 dictum; Suljagić (n 6), para 4 dictum; Atana siu (n 12), para 6
dictum; Greens and MT (n 3), para 6 dictum.
78 (n 1), para 4 dictum.
79 Ananyev (n 7), paras 7–8 dictum; To r reg g ian i (n 7), para 4 dictu m.
80 See also Gerards (n 10), 384.
81 Broniowski (n 1), para 4 dictum; Atanas iu (n 12), para 6 dictum; M.C. (n 42), para 11 dictum .
82 Hutten-Czapska (n 6), para 4 dictum.
83 Burdov (n 4), para 6 dictum; Olaru (n 4), para 4 dict um; Ivanov (n 4), para 5 dictu m; Rumpf (n 5),
para 5 dictu m; Athanasiou (n 5), para 5 dic tum.
84 Ananyev (n 7), para 7 dictum; See a lso MC (n 42), para 11 dictum.
85 Greens and MT (n 3), para 6 dictu m.
86 Burdov (n 4), para 137, emphasis added; See also Ivanov (n 4), para 90 ; Finger (n 12), para 120;
Dimitrov and Hamanov (n 5), para 115.
87 Burdov (n 4), para 137, emphasis added; See also Ivanov (n 4), paras 9 0–92; Finger (n 12), para 120;
Dimitrov and Hamanov (n 5), para 115; Gerasimov (n 4), para 220.
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considered the adoption of general measures in the context of the execution of
similar judgments and was taking further actions in this respect.88 Also ‘not
particularly complex’ problems may go beyond the Court’s function, preventing it
from specify ing the required measures.89
e Court’s directives are not only general rather than speci c; the Court also
does not, in principle, either in the operative provisions, or in the merits, explain
how the State is to achieve the measure. e obligation on the State is therefore
primarily one of result rat her than of means. is approach is, for example, apparent
from the frequent use of the word ‘secure’,90 inserted prior to the description of the
measure in the operat ive provisions, and from the Court’s addition in some ea rly pilot
judgments that the measure must be achieved ‘through appropriate legal measures
and administ rative practices’, without specifying what thes e entail.91 e merits a lso
re ect the result-oriented nature of the orders. In one case, the Court, emphasising
the wide margin of appreciation in the area of Article3 of Protocol 1 (right to free
elections), was ‘of the view that it is for the government […] to decide in the rst
place how to achieve compliance with [that Article] when introducing legislative
proposals’.92 In another judgment, it stated that it ‘is not for the Court to specify
what would be the most appropriate way of setting up […] remedial procedures’ or
how di erent interests should be balanced.93 is meant that the respondent State
remained ‘free to choose t he means by which it will discharge its obligations arising
from the execution of the Court’s judgments’.94 e Court may also leave it to the
Committee to determine ‘what would be the most appropriate way to tackle the
problems’.95
e foregoing information may lead to the conclusion that the St ates have almost
unfettered discretion as to which general measures they implement and how they
ensure their implementation. e picture is, however, more nuanced, as the Court’s
practice does not support th is conclusion, mainly for three reasons.
First, it is clear that the measures must comply with certain minimum standards.
In a still rather general sense, the Court may hold in the operative provisions that the
remedy must be implemented ‘in accordance with the relevant principles laid down in
the Convention’,96 or, more speci cally, in line with the principles as established in its
88 See Burdov (n 4), para 137; See also Ananyev (n 7), para 194 .
89 Olaru (n 4), para 57.
90 See eg Broniowski (n 1), para 4 dictum; Hutten-Czapska (n 6), para 4 dictum; Burdov (n 4), para 6
dictum.
91 Broniowski (n 1), para 4 dictum; See al so eg Hutten-Czapska (n 6), para 4 dictum.
92 Greens and MT (n 3), para 114, emphasis added; See a lso Ananyev (n 7), para 194.
93 Hutten-Czapska (n 6), para 239; See also Ananyev (n 7), para 232 .
94 Hutten-Czapska (n 6), para 239.
95 Ivanov (n 4), pa ra 92.
96 Broniowski (n 1), par a 4 dictum; Hutten-Czapska (n 6), para 4 dictum; Burdov (n 4), para 6 dictum;
Ivanov (n 4), para 5 dictum.
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54 Intersentia
case-law97 or judgment.98 By referring to the principles, the Cour t gives substance to the
remedial measure s, albeit somewhat indirectly. In the merits a s well, it may emphasise
that the remedies must ‘comply, both in theory and in practice, with the key criteria set by
the Court’.99 Emphasising this is signi c ant in particular bec ause the Court can outli ne
the relevant criteria in quite some detail in its pilot judgment.10 0 It has, for instance,
described the ‘key features of an e ective compensatory remedy’,101 namely that the
remedy operates retrospectively and provides redress in respect of delays predating
its introduction.102 In the same judgment, the Court pointed out, by way of example,
remedies introduced by other States,103 and summarised measures that address delays
in domestic criminal proceedings.10 4 e Court may a lso refer to standards developed
by the Committee to which t he authorities should have due regard.105
Second, the Court c an give guidance to the respondent State in the judgment a nd
in this way esh out the remedy. Its case law shows that it is not as st rongly opposed
to this as it may seem at rst sight. For example, in Greens and M.T. v. UK, it posed
the rhetorical quest ion ‘whether it is now appropriate […] to provide the respondent
state with some gu idance as to what is required for the proper execution of t he current
judgment’.106 Although eventually it answered this question in the negative, the
very posing of this question discloses that the Court is not opposed to giving such
guidance in principle. Nevertheless, the Court generally employs careful language
when recommending certai n action. By way of illustration, it once made observations
to that e ect only ‘in passing’107 and in two other judgments, it provided guidance
on a ‘purely indicative basis’.108 Careful wordi ng in giving guidance can a lso be seen
in judgments where the Court observed that ‘the many options open to the State
certainly include the measures indicated by the Constitutional Court’109 or that ‘it
appears highly unlikely in the light of the Court’s conclusions that […] an e ective
remedy can be set up without changing the domestic legislation on certain speci c
points’.11 0
97 Kaplan (n 5), paras 69–72; Michelioudakis (n 5), para 5 dictum; Puto (n 34), para 6 dictum;
Tor reg g ia ni (n 7), para 4 dictu m.
98 Finger (n 12), para 5 dictum ; Dimitrov and Hamanov (n 5), para 6 dictum; Ananyev (n 7), para 7
dictum.
99 Rumpf (n 5), para 73; See also Athanasiou (n 5), para 54; Finger (n 12), para 130; Dimitrov and
Hamanov (n 5), para 125.
100 See eg Kaplan (n 5), para 5 dictum; Puto (n 34), para 6 dic tum.
101 Dimitrov and Hamanov (n 5), para 125.
102 Ibid, para 126.
103 Ibid, para 127.
104 Ibid, paras 12 8–130.
105 Ivanov (n 4), para 94; Rumpf (n 5), para 73; Atanasiu (n 12), para 229; To rr eg gi an i (n 7), par a 95.
106 (n 3), para 112.
107 Hutten-Czapska (n 6), para 239.
108 Atanasiu (n 12), para 230 ; Puto (n 34), para 118.
109 Hutten-Czapska (n 6), para 239.
110 Burdov (n 4), para 138.
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Lastly, the Court is sometimes more speci c in o ering guidance. is guidance
can pertain to the result to be achieved, that is the remedy. In the case of Ališić and
Others, for example, it mentioned that necessar y arrangements should be taken ‘so as
to allow [the applicants] and al l others in their position to recover their “old” foreign-
currency savings under the same conditions as those who had such savings in the
domestic branches of Slovenian banks’, the conditions having been set out in the
judgment.111 If fu rthermore added that,
no claim [for recovery] should be rejected only because of a lack of original contracts or
bankbook s […] prov ided that the persons concer ned are able to prove their clai ms by other
means’ and that ‘a ny and all veri c ation decisions must be subject to judicia l review’.112
Further, in Gerasimov, the Court indicated that there were ‘several avenues’ by
which an e ective remedy could be set up, and although it did not ‘impose any
speci c option’, it did outline some options.
113
Furthermore, when outlining
these options, the Court noted that any legislative exercise would bene t from
domestic case law and the Com mittee’s texts adopted under Article46 and it stated
that it would be ‘quite appropriate for the authorities to seek […] to combine a
compensatory remedy with an acceleratory one’.
114
e Cour t’s guidance can also
relate to the means by which to achieve t he result. In a case where the State had to
ensure the e ective protection of the rights guaranteed by Articles6 (right to fair
trial) and 1 of Protocol 1 (protection of property), it observed that the ‘decision
process for the type of compensation awarded required the utmost transparency
and e ciency with a view to enhanc ing public con dence’.
115
On another occasion,
the Court found th at with regard to the violation of Article13 (right to an e ective
remedy) on account of the lack of e ective domestic remedies in respect of the
applicants’ complaints about inadequate conditions of detention that ‘clear and
speci c changes in the domestic legal system’ were required.
116
It therefore gave
‘f u rt he r [a nd r at he r l eng t hy] con si de rat io n’ a s t o b ot h pr ev ent iv e a nd c om pe nsa to ry
remedies.
117
As these three points i llustrate, respondent States do not have unlimited d iscretion
as regards the remedial measures ordered in the pilot judgment. e Court can
make its orders more speci c than they may seem at rst g lance by giving minimum
standards and g uidance in a more or less speci c manner.
111 (n 5), para 146.
112 Ibid, para 148.
113 (n 4), para 224.
114 Ibid.
115 Puto (n 34), para 114.
116 Ananyev (n 7), para 212.
117 Ibid, para 213; See for a nother example Gerasimov (n 4), para 220.
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3.1.3. Time Limit for Remedial Measures
Rule 61 allows the Court to direct in the operative provisions that the remedial
measures be adopted within a speci ed time, ‘bearing in mind the nature of the
measures required and the speed with which the problem which it has identi ed
can be remedied’.118 e Court always uses this possibility, with deadlines ranging
between six and eighteen months, except in the rst two pilot judgments, where it
only noted that the measures ‘should be adopted within a reasonable time’.119 e
Court dedicated some words to the determination of the time limit imposed for
the creation of a domestic remedy only i n Gerasimov. In its view, the time limit was
‘consistent with the experience of the rst pilot judgment [on partially the same
matter], the nature of the measures to be adopted […] and the domestic legislative
initiatives al ready taken to that e ect’.120 Further, the Court explai ned once, in Var ga
and Others v. Hungary, why a deadline was required: due to the large number of
people a ected and the urgent need to grant them speedy and adequate redress at
domestic level.121
3.1.4. Just Satisfaction
e question of just satisfaction may be reserved either in whole or in part pending
the adoption of the execution measu res proposed in the pilot judgment.122 e Court
chooses to award compensation (in part), for example, due to the ‘particular and
personal circumstances of the individual applicant’,123 which includes his age and
health and the length of domestic proceedings.124 It has also considered that an award
was warranted due to the fact that the applicant ‘not only asserted her own rights
before it but has also taken upon herself t he trouble and burden of acting – at least to
some extent – on behalf of [others] in a simila r situation’.125
e question of just satisfaction is reserved (in part) when it is not ready for
decision according to the Cour t. e Court doe s not explain thi s decision, but it can
instruct the State that a subsequent procedure must be xed, having due regard to
any agreement which might be reached between the parties and in the light of such
execution measures as may be ta ken.126
118 Rule 61(4) of the Court.
119 Broniowski (n 1), para 198; Hutten-Czapska (n 6), para 247.
120 (n 4), para 226.
121 (n 25), para 111.
122 Rule 61(5) of the Court.
123 Hutten-Czapska (n 6), para 248.
124 Ibid, para 248; Atana siu (n 12), para 253; Puto (n 34), para 125.
125 Hutten-Czapska (n 6), para 248; See also Ališić(n 6), para 155.
126 See eg Bronioski (n 1), para 198; Hutten-Czapska (n 6), pa ra 247; Kurić (n 29), para 424; MC (n 4 2),
para 129.
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3.1.5. Similar Applications
e Court may adjourn the examination of all similar applications pending the
adoption of the remedial measures.127 e Court has taken di erent approaches to
dealing wit h these applications. Di erent approaches are possible because the Cour t
may adjourn ‘as appropriate’.128
e rst approach, taken seven times ,129 is to continue processing all appli cations.
is reminds t he respondent State regularly of its Convention obligations and can be
required because of the f undamental nature of the right at stake a nd the importance
and urgency of the complaints.130 Instead of continuing to process the applications
itself, the Court may a lso instruct the State to g rant ad hoc redress at the domestic level
by means of friendly set tlements or unilateral declarat ions within a speci ed time for
applications submitted prior to the deliver y of the judgment.131 e in struction can be
required ‘not only […] because of the gravity of the applica nts’ allegations’, but is also
‘dictated by the princ iple of subsidiarity’.132
e Cour t can also adjourn, as it has done in eight cases,133 t he examination of all
similar applic ations pending the adoption of remedial measures for a cer tain period.
During that period, the applicants must resubmit their grievances to the domestic
authorities, using the remedy that has been created pursuant to the judgment.134
e Court’s decision to adjourn is ‘without prejudice’ to its power at any moment to
declare the cases i nadmissible or to strike them o of its l ist.135 Adjourning all, or, for
that matter, some, applications matches one of the aims of the PJP, namely to ‘allow
the speediest possible redress to be granted at the domestic level to the […] people
su ering f rom the structural problem identi ed’.136
Further, the Cour t di erentiated its approach eight times, depending on whet her
an application was lodged before or a er the delivery of the pi lot judgment.137 Taki ng
this mixed me thod, the Court continues to exam ine itself applications lodged before
the judgment’s delivery138 or requires the domestic authorities to provide ad hoc
127 Rule 61(6)(c) of the Court.
128 Ibid; Ananye v (n 7), para 235.
129 Rumpf (n 5); Athanasiou (n 5); Finge r (n 12); Dimitrov and Hamanov (n 5); Ananyev (n 7); Neshkov(n
22); Varga (n 2 4).
130 See eg Rumpf (n 5), para 75; Athanasiou (n 5), para 58; Finger (n 12), para 135; Dimitrov and
Hamanov (n 5), para 133; Ananyev (n 7), para 236; Var ga (n 24), para 116.
131 Ananyev (n 7), paras 238–239.
132 Ibid, para 238.
133 Broniowski (n 1); Hutten-Czapska (n 6); Suljagić(n 6); Atanasiu (n 12); Kurić (n 29); Michelioudakis
(n 5); Glykant zi (n 5); Ališić(n 6).
134 See eg Olaru (n 4), para 60.
135 Suljagić (n 6), para 65.
136 Burdov (n 4), para 142.
137 Burdov (n 4); Olaru (n 4); Ivanov (n 4) ; Kaplan (n 5); Puto (n 34); To rr eg gi an i (n 7); MC (n 42);
Gerasimov (n 4).
138 See eg Puto (n 34), para 121.
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58 Intersentia
redress.139 e exa mination of other applications is adjourned for a set period, in t he
same way as when the second approach is followed.14 0 is approach is warranted
if it would be unfair if the rst category of applicants would need to resubmit their
complaints to the domestic aut horities.141
Lastly, a so far unique approach was called for in Greens and M.T., because the
circumstances were di erent from those arising in other pilot judgments.142 e
PJP is usually applied to cases involving complaints regarding property or the non-
enforcement of domestic judgments, where the bene ts of ordering a remedy o ering
speci c redress in all pending cases are ‘clear’.143 e case at hand was, however,
of ‘an entirely di erent nature’, as there was neither an ‘individual examination
of speci c cases […] required in order to assess the appropriate redress’, nor
‘ nancial compensation payable’.144 e nding of a violation therefore constituted
su cient redress,145 and the only relevant remedy was legislative change.146 e
Court discontinued examining all (future) applications and proposed to strike the
applications out pursuant to Article 37(1)(c) when the UK had implemented the
legislative change.147
3.2. COMMENTS
As in the run-up to the PJP, the Court mostly carefully follows its Rules in the pilot
judgment, although it does not actually refer to the Rule. e Court does, however,
not always repeat the identi cation of the nature of the problem in the operative
provisions. Repeating this in the operative provisions is of added-value because it
means that the scope of the problem which needs to be remedied is clearly pointed
out in a binding manner. is is valuable in and of itself and may make it easier for
the Committee to move t he State to fully remedy the problem. is omission may be
emblematic for the focus of some pilot judgments on securing compensation for the
vi olat ion s ca use d by the und erl yi ng pr obl em r ath er t ha n on s olv in g th at p robl em. at
focus can als o be derived from the minimal a nalysis of the problem in the merits and
from the fact that the Court only orders compensatory remedies in some categories
of cases. is particular focus may be problematic if it means that the respondent
State will also only concentrate on the consequences of the problem rather than on
addressing the problem itself.
139 See also Gerasimov (n 4), paras 230–232.
140 See eg Burdov (n 4), paras 143–146.
141 Olaru (n 4), paras 60–61.
142 (n 3), para 118.
143 Ibid.
144 Ibid.
145 Ibid.
146 Ibid.
147 Ibid, par as 121–122.
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e description of the judgments also warrants the observation that the Court’s
reasoning is limited in two regards. As was just noted, t he Court does not normally
analyse the problem causi ng the need for the PJP in any extensive manner. Further, it
does not motivate the duration of the t ime limit during which t he State is to adopt the
remedies ordered, in spite of a provision in its Rules expla ining which factors should
be borne in mind when sett ing the limit. is practice may make the durat ion chosen
seem arbitrary.
It is notable that the Court leaves to the State s rather broad discretion as to which
remedial measures t hey take and how they implement them and that it may defer to
the Committee in this respect. However, the Court can limit the discretion by way
of giving guidance and establishing minimum standards and it does not allow for
any discretion as to the time limit in which the State is to take the measures. Even
though, according to its Rules , the Court ‘may’ – not ‘shall’ – set a deadline, it a lways
sets one. Apparently therefore, the Cour t thinks it is necessary to put extra pressure
on the respondent States as regards the execution of the pilot judgment by way of a
time limit.
Lastly, it can be remarked that the Court sometimes chooses to deal with
applications brought before the delivery of the pilot judgment, even though it is not
required to do so. erefore, alt hough the PJP is clearly designed to deal with genera l
problems and to decrease the Court’s caseload, the Court does not lose sight of the
interests of individual applicants. is is also apparent from the Court’s practice to
sometimes award just sat isfaction to the applicants to the case selecte d for treatment
under the PJP.
4. EXECUTION
As with any adverse judgment, t he respondent State must execute the pilot judgment
under the supervision of the C ommittee once it has become nal.14 8 e Committee
places pilot cases normal ly under enhanced supervision, which means t hat it follows
more closely and proactively the execution process t han when a case is placed under
standard supervision.149 Rule 61 gives comparably few instr uctions about execution.
It is, for example, not outlined how or when the procedure ends. Examining the
functioning of t he procedure is therefore essential to a ny discussion of the execution
phase, as wil l be done in section 4.1.
Two clues in the Court’s Rules prompt questions that can function as a starting
point for the description. e rst clue is that where t he parties to the pilot judgment
reach a friendly sett lement, such agreement shall comprise a declaration by the State
‘on the implementation of the general measures identi ed in the pilot judgment as
148 ECHR Ar ticle 46(1–2).
149 Committee, ‘Information Document’, CM/Inf/DH(2010)45 nal,7December 2010, para I(10);
Committee, ‘I nformation Document’, CM/ Inf/DH(2010)37, 6September 2010, paras 6 , 8, 20.
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60 Intersentia
well as the redress to be a orded to other […] applicants’.150 e Court, therefore,
which must approve the settlement, does not have to shy away from examining the
implementation of the general measu res. is obser vation invites the question of how
strict the Cour t scrutinises the general measures adopted by the State in the follow-
up rulings to the pilot judgment.151 Another clue is that the Court can resume the
examination of applications previous adjourned.152 erefore, another possible stop
along the procedure’s route exists, in add ition to a judgment approving a pilot friendly
settlement. is leads to the quest ions of whether other stops exist and whether t hese
stops are the procedure’s nal destination.153
Not each aspect of execution can b e discussed by relying on the two clues in Ru le
61. In particular, the Court’s practice of approving requests by the respondent State
for an extension of the time limit in the pilot judgment cannot be discussed on this
basis, simply because the Rules of Court do not anticipate this possibility. Because
some comments can be made about this practice, it is nevertheless described. ese
and other comments are made in sec tion 4.2
4.1. DESCRIPTION
4.1.1. Routes of the PJP
e Court clearly closed three early PJP’s by deciding in the operative provisions
of a follow-up ruling ‘to close the [PJP]’.15 4 Following Broniowski, the Court issued
a strike-out judgment to approve the friendly settlement that aimed to solve the
previously reserved Article 41 question.155 Subsequently, the Court struck several
applications o of its l ist because the compensation scheme introduced a s a remedial
measure provided the applicants with domestic relief.156 e PJP reached its nal
destination when the Cour t struck the remaining 176 applications out and closed the
procedure.157 When closing the procedure, it explained that, although applications
continued to be lodged, its task had been f ul lled,15 8 because delivering, continually,
‘individua l decisions in cases where there is no longer any live Convention issue’ was
incompatible with that task.159 e route followed by the PJP of Hutten-Czapska v.
150 Rule 61(7) of the Court.
151 See Subsection 4.1.2 for the a nswer.
152 Rule 61(8) of the Court.
153 See Subsection 4.1.1. for the ans wers.
154 EG and Others v Poland an d 175 otherBugRiver Application s (ECtHR, 23September 2008) (Strike-
out decision), para 1 dict um.
155 Broniowski v Poland ECHR 2 005-IX (Friendly set tlement judgment).
156 Wolkenberg and Others v Pol and App no 50003/99 (ECtHR , 4December 2007) (Strik e-out decision),
para 77.
157 EG (n 154), paras 1–2 dictum.
158 Ibid, paras 27, 29.
159 Ibid, para 27.
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Poland is compa rable: the Court approved the friendly set tlement and then closed the
procedure in a strike-out deci sion.160 As regards the t hird procedure, a er the Court
had issued the pilot judgment in Suljagić v. Bosnia and Herzegovina, it only needed
one follow-up strike-out decision to close the PJP. In that decision, the Court noted
that it might strike out the hundreds of similar pending applications in the single-
judge procedure .161
e other route which the procedure has followed is that t he Court declares simil ar
applications inadmissible for fa ilure to exhaust the domestic remedy c reated to execute
the pilot judgment at some point, which it has done se ven times.162 e Court has also
approved a remedy without declaring t he application in which it did so inadmi ssible in
respect of two pilot judgments.163 In a nother follow-up case, the Court only approved
the remedy in respect of one category of applic ants, but not of another.164 Although the
Court thus approves the remedy, it does not close the procedure in t he clear manner
found in the three above-mentioned PJP’s. Moreover, rather than expressly closing t he
procedure, the Court somet imes adds that its ‘position may be subject to review in t he
future depending, in particular, on domestic courts’ capacity to establish consistent
case-law under [the law creating t he remedy] with the Convention requirements’.165 In
one follow-up ruling, the Cour t’s position was indeed subject to review. It had turned
out that the remedy created to execute the judgment in the case of Burdov was only
e ective in resp ect of applicants who had complained about delays in the enforcement
of judgments imposing a pecu niary obligation on the authorities; t he remedy did not
extend to judgments imposing an obligation in kind. Strasbourg therefore remained
the only place where some applicants cou ld obtain e ective redress.166
160 Hutten-Czapska (Friendly settlement judg ment) (n 75); e Association of Real Proper ty Owners
inŁódź v Poland (ECt HR, 8March 2011) (Strike-out decision).
161 Zadric v Bosnia and Herzegovina App no 18804/04 (ECtHR, 16 November 2010) (Strike-out
decision).
162 Balan v Moldo va App no 44746/08 (ECtHR, 24Januar y 2012) (Admissibility de cision) (follows up to
Olaru); Taron v Germany App no 53126/07 (ECtHR, 29May 2012) (Admissibil ity decision) (follows
up to Rumpf ); Turgut and Others v Turkey App no 4860/09 (ECt HR, 26March 2013) (Admissibilit y
decision) (follows up to Kaplan; Valcheva and Abrash ev v Bulgaria App nos 6194/11 and 34887/11
(ECtHR, 18 June 2013) (Admissibilit y decision) and Balakchiev and Others v Bulgaria App no
65187/10 (ECtHR, 18 June 2013) (Admissibility dec ision) (follow up to Finger and Dimitrov and
Hamanov); Techniki Olympiaki v Greece App no 4 0547/10 (ECtHR, 1October 2013) (Admissibilit y
decision) (follows up to Athanasiou); Stella and Others v Italy App no 4 9169/09 and others (ECtHR,
16September 2014) (Admissibility d ecision) (follows up to Torr eg gi ani ).
163 Xynos v Greece App no 30226/09 (ECtHR, 9 October 2014) (follows up to Michelioudakis and
Glykantzi).
164 Preda and Othe rs v Romania App no 9584/02 a nd others (ECtHR, 29April 2 014), paras 133, 143, 150
(foll ows up to At anasiu).
165 Balan (n 162), para 27; See also Tur gu t (n 162), para 57; Stella (n 162), para 68; Tar on (n 162), para 45.
166 Ilyushkin a nd Others v Russia App no 5734 /08 and others (ECtHR , 17April 2012), paras 43–44; S ee
for more information about t his case Philip L each, Helen Hardman a nd Svetlana Stephenson, ‘C an
the European C ourt’s Pilot Judgment Proce dure Help Resolve Systemic Huma n Rights Violations –
Burdov and the Fai lure to Implement Domestic Cour t Decisions in Russia’ (2010) 2 HRLR 34 6.
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e last route or rather destination is provided for in the Rules of Court, as was
noted above: ‘[s]ubject to any decision to the contrary, in the event of a failure […]
to comply with the operative provisions of a pilot judgment, the Court shall resume
its examination of the applications which have been adjourned’.167 e word ‘shall’
denotes an obligation on the Court, but at the same time, its resumption of the
examination is subject to ‘any decision to the contrary’. e Rule must therefore
probably be interpreted to mean that the Court cannot remain inert: in case of
a failure, it should either process previously adjourned applications or take an
alternative decision. e potential relevance of the provision is clear since the Court
has adjourned the exa mination of applications in 17 pilot judgments by means of one
approach or another.168 So far, the Court has recommenced examining previously
adjourned applic ations twice.
In the pilot judgment in t he case Ivanov v. U kraine, the Court i mposed a deadline
of one year for the implementation of the remedia l measures,169 which it subsequently
extended by six months.170 One day before the expiry of the new deadline, Ukraine
requested a further extension, which the Court refused, inter alia, because the
situation had not improved and because no settlement had been proposed in about
1,000 communicated cases.171 About seven months therea er, the Cour t resumed the
examination of the adjourned applications as still no measures had been adopted.172
Subsequently, the Court delivered a judgment in which it found similar violations
as it had found in the pilot judgment because of the delayed execution of domestic
judgments in the applica nts’ favour.17 3 It also no ted that ‘its pr incipal ta sk is to secure
the respect for human rights, rather than compensate applicants’ losses minutely
and exhaustively’.174 A uni ed approach to just satisfaction was therefore adopted.
Applicants who had been waiting for more than three years for execution of a
domestic judgment received 3,000Euros and the others 1,500Euros.175 e Court
invited Ukraine to issue unilateral declarations based on these awards in similar
applications. An expedited and simpli ed process of communication followed: the
Registry collected only the key facts, did not compile individual factual summaries,
167 Rule 61(8) of the Court; See a lso EG (n 154), para 28.
168 See subsect ion 3.1.5.
169 (n 4), para 5 dictum.
170 Interim Resolut ion, Committee of Mi nisters ResDH(2011)184 (14September 2011).
171 Letter from C Westerd iek (Section Regis trar of the ECt HR) to M Paulus (Secreta ry to the Comm ittee
of Ministers) (9September 2 011)
e=1979092&SecMode =1&DocId=1791440&Usage=2> accessed 9Ju ly 2015.
172 Kharuk and Others vU kraine App no 703/05 and others (ECtHR, 26July 2012), para 7; ECtHR
Registrar, ‘Press Release; Court Decides to Resume Examination of Applications concerning Non-
enforcement of Domestic De cisions in Ukra ine’ (Strasbourg, 29Febr uary 2012).
173 Kharuk (n 172), pa ra 19.
174 Ibid, para 23.
175 Ibid, paras 2 3–25.
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and did not communicate inform ation about the individual applications to the State.
e Cour t also held that it would give judgment if Ukra ine would not le a unilateral
declaration with in six months a er communication.176
In Greens and M.T., the Court required t he UK to adopt legislative proposals wit hin
six months of the date upon which the judgment became nal.177 is deadline was
extended pending the Gra nd Chamber judgment in the case of Scoppola v. Italy (no 3)
because the outcome in that ca se could be relevant to the pilot judgment. On the day
of the delivery of the Gra nd Chamber judgment, the six month period in Greens and
M.T. started running.178 Nevertheless, more t han four months a er the expiry of the
deadline, the C ourt adjourned its consideration of pending similar applic ations even
further.179 Close to ex piry of the latest deadline, it decided to resu me examining 2,281
pending similar applications.180 Subsequently, ten applications were communicated
to the UK181 and a er that another 1,015.182 is led to two judgments nding a
violation of Article3 of Protocol 1 for t he same reason as in Greens and M.T., ‘[g]iven
that the impugned legislation remai ns unamended’.183
4.1.2. Follow-up Rulings
Now that is has been clari ed which routes a PJP can follow, it is useful to expla in how
strict the Court’s scrutinises the general measures adopted to execute the judgment
in rulings following up to the pilot judgment. Generally, the Court’s review of the
execution measures in t he follow-up rulings is l imited and o entimes deferential.
e review is limited because the Court does not normally, when scrutinising
the implementation of remedial measu res, demand detailed or elaborate plans which
nd their basis i n legislation and in respect of which consistent and extensive judicial
practice has already be en developed. On the contrary, a remedy can be approved based
on promises, commitments and undertakings of the respondent State.184 Further,
176 Steering Com mittee of Human Right s, ‘Dra CDDH Report on the Advisability and Modalities of
a “Representative Applic ation Procedure”’ (DH-GDR(2013)R3 Addendum III, 15Febr uary 2013),
paras 13–14.
177 See for an elaborat e discussion of th is judgment and related judg ments and their exec ution Ed Bates,
‘Analysing the Pri soner Voting Saga and the Briti sh Challenge to Stras bourg’ (2014) HRLR 503.
178 ECtHR Registrar, ‘Press Release; Implications of Scoppola (no. 3) Grand Chamber Judgment’
(Strasbourg , 22May 2012).
179 ECtHR Regis trar, ‘Court Decides to Re sume Examinat ion’ (n 172).
180 Le tt er f rom F E le ns -P as s os (Se c ti on Re gi st r ar) to M P au lu s ( Se cr et a ry to th e C om m it te e o f M in is t er s)
(23October 2013) < wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobG
et&Instra netImage=2379535&SecMode=1&DocId=206 6242&Usage=2> accessed 9Ju ly 2015.
181 Firth and Other s v UK App no 47784/09 and others (ECt HR, 12August 2014), para 4.
182 McHugh v UK and 1014 other Applicatio ns (ECtHR, 22September 2 014) (Communicated ca se).
183 Firth (n 181), para 15; McHugh and Others v UK App no 51987/08 and others (E CtHR, 10February
2015).
184 See eg Hutten-Czapska (Friendly settleme nt judgment) (n 75), paras 37–44; Broniowski (Frie ndly
settlement judgme nt) (n 155), paras 42–4 4.
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64 Intersentia
when relevant legislation has been enacted , the Court establishes the e ectiveness of a
rem edy o n pap er, a s it i s su cient that a remedy o ers a rea sonable prospect of o ering
compensation.185 It can therefore positively eva luate the remedy even when no or little
practice has been established yet or when the results of the remedy will only be seen
in the long-term.186 e Cour t seems to attach particular i mportance to the existence
of a requirement on domestic courts to apply Convention criteria as established in
the Court’s case law when dealing with requests of the applicants led under the
new domestic remedy.187 e Court’s refusal to examine ‘every single provision’ of
the legislation creating t he remedy in abstracto ‘when it has no reason to assume that
the [legislation] will not attain the purposes for which it had been enacted’ is typical
of the limited scrutiny by the Court.188 Exceptionally, however, the Court’s review
is more elaborate.189 To take one example, the Court examined ‘the availability and
e ect iveness of the two remedies and thei r compatibility with eac h of the requirements
set out in the pilot judgments’ in a follow-up ru ling on the Bulgarian pilot judgments
Finger and Dimitrov and Hamanov.190 In addition to that, it ana lysed closely the issues
of procedural guarantees, costs and speediness, the promptness of the payment of
compensation, and the scope and retrospec tive e ect of the remedies.191
e Court is deferential to the Committee in its follow-up rulings.192 To
illustrate, in one such ruling, the Court based its assessment of the remedy wholly
on the Committee’s ndings.193 On another occasion as well, the Court did
not ‘ nd it necessary […] to give a ruling as to the present or future e ects of the
Government’s decision on the general adequacy of the redress’; this was a matter for
the Committee.194 As a last example, the Cour t has held in a follow-up ruling to Kurić
and Others v. Slovenia that it was for the Committee to eva luate the pending domestic
compensation scheme that had not become applicable prior to the expiry of the
deadline in the pilot judgment.195 As it had ‘consistently ru led’, it had no ‘jurisdiction
to verify, by reference to Article46, whether a Contracting Party has complied with
the obligations imposed on it by one of [its] judgments’.196 e Cour t only remarked
185 Łódź (n 160), paras 81, 88; Balan (n 162), para 19.
186 Hutten-Czapska (Friendly settlement judg ment) (n 75), paras 37–44; Nagovitsyn and Nalgiyev v
Russia App nos 27451/09 and 60650/00 (ECHR, 23September 2010) (Admissibility decision), para
30; Balan (n 162), para 19; Taron (n 162), para 40; Balakchiev (n 162), para 80.
187 See eg Nagovits yn and Nalgiyev (n 186), para 29; Tar on (n 162), para 39; Balan (n 162), para 18.
188 Taro n (n 162), para 41.
189 Techniki Olympiaki (n 162), par as 32–58; Stella (n 162), paras 42–70.
190 Balakchiev (n 162), para 58.
191 Ibid, paras 59–78.
192 See for more information about t he role of the Committe e (in the execution phase of t he procedure)
Zagrebelsk y (n 1), 523–526; Gerards (n 10), 385–388.
193 Zadric (n 161).
194 Łódź (n 160), para 81.
195 Kurić (Friendly sett lement judgment) (n 66), paras 138–139, 142.
196 Ibid, paras 138–139, 142.
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about the compensation scheme that the solution of award ing a lump sum in respect
of (non-)pecuniar y damage ‘appears to be appropriate’.197
4.1.3. Extension of the Time Limit
As was already mentioned wit h respect to the PJP’s of Ivanov and Greens and M.T., the
Court has granted requests of the respondent State for an extension of the deadline
given in the operative provisions of the pilot judgment for the introduction of the
remedial measures. is practice is not unique; the Court has granted more such
requests, including for the deadline set for the disposal of similar applications.198
e Court, however, refused to follow this practice in a follow-up ruling to the pilot
judgment Kurić. Although it t wice extended the time l imit for settling the outs tanding
Article41 claims,199 it refused to grant such a request regarding the deadline for
establishing a domestic remedy. e extension of that deadline was, according to
the Court, a ‘matter which should be taken up with the [Committee]’.200 In spite of
Slovenia’s request for reconsideration, the Court stayed with its ref usal.201
4.2. COMMENTS
e description allows for, rst of all, commenting on the accomplishments of the
procedure from the perspective of follow-up rulings, which the Court has adopted
in respect of 17 procedures. On the one hand, the Court decided to resume the
examination of previously adjourned applications twice because no remedy was
established and it also held twice that (part) of the remedy introduced to execute
the pilot judgment was not e cient. On the other hand, the Court has approved
the remedy created in consequence of 12 pilot judgments without yet making a
decision to the contrary.202 e relevant law entered sometimes into force a er the
(extended) deadline had passed however.203 Also in the case of Kurić and Others, a
197 See eg ibid, para 140.
198 Letter from T L Earl y (S ection Registrar) to M Paulus (Secre tary to the Committee of Mi nisters)
(23 November 2010)
obGe t&I nstr ane tIma ge=1772851&SecMode=1& DocId=1664 526&Usage =2> ac cessed 9 July 2 015;
ECtHR Registrar, ‘Press Release; e Court has Accepted the Romanian Gover nment’s Request
to Postpone the Time-l imit for Introducing the Genera l Measure Imposed by the Pilot Judg ment
Maria Atana siu and Others v. Romania’ (Str asbourg, 3 April 2013); Decision on Cases No 11,
Committee of M inisters (5December 2013) (concerning Michelioudakis).
199 Kurić (Friendly sett lement judgment) (n 66), para 11.
200 Ibid, para 12.
201 Ibid.
202 Broniowski (n 1); Hutten-Czapska (n 6); Olaru (n 4); Suljagić (n 6); Rumpf (n 5); Athan asiou (n 5);
Finger (n 12); Dimitrov and Hamanov (n 5); Kaplan (n 5); Torr eg giani (n 7); Michelioudakis (n 5);
Glykantzi (n 5).
203 (Exten ded) d eadl ine set on 30Ja nuar y 2014 f or Michelioudakis and Glykantzi, law entered into force
on 20Februar y 2014, see Decision, Committe e (7March 2014).
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66 Intersentia
compensation scheme had been designed but did not become applicable prior to the
expiry of the dead line set by the Court. A lthough the scheme was not clearly approved
by the Court, it did note that the scheme seemed to be appropriate. Importantly, the
Court has in respect of various PJP extended the deadline for the implementation of
remedial measures set in the judgment. Moreover, that deadline has passed without
the remedial measure having been introduced in at least two cases.204 On t he whole,
thus, the image arising out of the execution of pilot judgments is positive:205 only
twice so far has the respondent State remained largely inert. In addition to inertia,
delays and partia l execution cause problems.
Considering that the t ime limit ordered by the Court is o en not met or needs to be
extended, the quest ion arises whether the t ime limits are su ciently realistic.206 is is
also questionable, bec ause the Court does not usually provide for a ny explanation for
the determination of t he time limit that it chooses in t he judgments. Further, the mere
fact of the extension of the dead line by the Court is remarkable, becau se it means that
the Court changes the operative provisions of the judgment retrospectively without
an apparent legal basis. Moreover, the extension may mean that t he Court decides on
a matter on which the Committee should decide in conformity with Article46(2).
Indeed, in the follow-up ruling to Kurić, the Court refused to extend the deadline
itself and le t his to the Committee, because it wa s a matter which should be taken up
with the Comm ittee. Whether this refusa l is a sea change or exception to the Court’s
practice remains to be seen.
e follow-up ruling to Kurić is also noteworthy from another perspective. As
was noted above, the Court ’s review of the remedial measures is usually limited and
deferential to the Committee . e deference can be explai ned by the task division laid
down in the Convention, which makes t he Committee, not the Court responsible for
supervising t he execution of the Court’s judgments in Article46(2).207 In that follow-
up ruling, t he Court’s review was non-existent rather tha n limited and its deference to
the Committee, bot h as regards the extension of the time-lim it and the review of the
remedial measu res, was complete. e rema rk of the Court in that rul ing, namely that
it had ‘consistently ruled’ that it had no ‘ jurisdict ion to verify, by reference to Article46,
whether a Contracti ng Party has complied with the obli gations imposed on it by one
of the Court’s judgments’ is exemplar y of the approach taken in that rul ing.208 Neither
the remark nor the Court ’s approach are, however, easily reconci lable with the above
descriptions of the Court not shying away from scrutinising the remedies adopted
pursuant to a pilot judgment on other occasions, although it did not review them
extensively. One can therefore wonder whether the Court w ill also change its practice
in the execution phase of pi lot judgment more generally. is doe s, however, not seem
204 MC (n 42); Puto (n 34).
205 See also Fribergh (n 2); Gerards (n 10), 395–397.
206 See also Leach, Hardma n and Stephenson (n 166), 358; Wallace (n 58), 78.
207 See eg Burdov (n 4), para 126.
208 Kurić (Friendly settlement judgment) (n 66), para 142.
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to be the case, as t he Court issued a follow-up ruling a er it had issued t he follow-up
ruling in Kurić in which it scrutini sed the remedial measures rather ela borately. 209
Some comments can also b e made on the route followed by the PJP’s. Most notably,
the Court closed three procedures clearly in strike-out decisions, while it approved
remedial measures adopted to exe cute subsequent pilot judgments in other follow-up
cases, wit hout closing the procedure. e approach of clearly closing t he procedure is
not wholly in accordance wit h reality because the Committee c ontinues to supervise
the execution of the pilot judgments , in the case of Hutten-Czapska even years a er the
Court had closed the procedure. 210 More precisely therefore, the Court’s involvement
in these cases may have ended, but not the procedure as such. e application of the
second approach makes it uncertai n when and whether the PJP is closed, especial ly if
the Committee has a lready closed its supervision of the case.211 Moreover, it rema ins
uncertai n whether the Court will rev iew the remedial measures agai n even though a
considerable amount of time has passed si nce it rst reviewed them.
5. RECOMMENDATIONS
Based on the comments made in the sections laying out the run-up to the PJP, the
pilot judgments and the stage of execution, some recommendations can be made on
four di erent matters as to how the Court could improve the functioning of the PJP
in practice.
e Court follows Rule 61 by and large. Even those pi lot judgments predating the
entry-into-force of the Rule are usually in conformity with it. Hence, the Rule has
codi ed the Court’s pre-existing practice. In particular because the Rule is adhered
to rather closely, the Court could consider referring to Rule 61 more consistently,
something which it hardly does so far. is may help further clarify the pilot
judgments, stimulate t he Court to continue pursuing the PJP in accordance w ith the
Rule, and remind the par ties of the existence of the Ru le, which, in turn, may stimulate
them to also act in ac cordance with it. Relying on the Ru le and applying it consistently
would also be desirable in the light of the purpose of the Rule’s introduction, which
was to ‘develop clear and predictable standards for the [PJP] as regards selection of
applications, the procedure to be followed a nd the treatment of adjourned cases’.212
As can be recalled from the introduction, one of the aims of the PJP is to assist
the respondent State in remedying structural domestic problems. is aim could be
increasingly e ectively achieved if the Court were to adapt – not change – di erent
aspects of its practice p ertaining to these problems. In t he rst place, the Court could
209 Stella (n 162), par as 47–70.
210 e Court closed t he procedure on 8March 2011; the Commit tee is still super vising.
211 In eg the Rumpf PJP the Committee close d its supervision (See Final Resolution, Committee
ResDH(2013)244 (5December 2013)), but the Court has not explicit ly ended its involvement.
212 ECtHR , ‘New Ru le on Pil ot Judgme nt Proce dure’, Pre ss relea se no 256 (Strasb ourg, 2 4March 2 011).
Lize R. Glas
68 Intersentia
perhaps make better use of the possibility to join applications brought by di erent
persons in the case selected for treatment under the PJP, as it did in Gerasimov.213
is approach can help shed light on di erent aspects of the structura l problem and
uncover its full scope, which may be of particular relevance to cases where persons
in the position of the applica nt do not belong to an ‘identi able class of citizens’. It is
thus clari ed that the problem must be solved in its entirety, which may help avoid
that respondent States acting in bad faith only address the problem as it manifests
itself in t he case of one applicant, as happened in t he case of Burdov. Joining di erent
applications addresses the above outlined criticism of the Parliamentary Assembly
that the PJP is someti mes conducted based on the application of just one applica nt that
may not reveal all aspects of the structural problem. e Court could also consider
analysing t he problem that is to be addressed more extensively than it does cu rrently.
Su ch a n an al ys is pla ce s a tt en ti on on t he pr ob lem , e mph a sis es t hat it mu st be a dd re ss ed ,
and can help the State in its endeavour to tackle the problem. When the Court joins
multiple applications in one pilot case, it can rely on these applications in order to
analyse the di erent aspects of the problem. Furt her, the Court could perhaps more
consistently identify the nature of the problem by virtue of the operative provision
of the judgment, something which it sometimes omits in spite of the requirement
in the Rules of Court to this e ect.214 Including the identi cation in the operative
and legally bindi ng provisions underscores the obligation and the need to address t he
problem. is ca n probably help avoid discussions between t he respondent State and
the Committee as to t he scope of the problem to be addressed. Lastly, the Cour t could
consider ordering preventive remedies alongside compensator y remedies more o en
because the latter type of remedy leaves the underlying problem unaddressed while
the former is designed to address it.21 5
As was noted, the extension by the Court of time limits ordered in the operative
provisions of the pilot judgment can be regarded as problematic, not only because
it means that the Court changes the operative provisions, but also because it may
be more appropriate for the Committee to decide on this matter. ere is no easy
way out of these problems because some solutions do not deal with both problems,
and the solutions themselves can be problematic. erefore, a speci c solution is not
recommended, although some solutions are p ointed out. To addre ss the rst problem,
the time limit could be indicated in the merits instead of ordered in the operative
provisions. is option may have the disadvantage of the State not abiding by the
indication, but because States do o en not make the deadline in practice, as was
described above, this disadvantage would not radically change practice. Possibly in
combination with the rst option, the Court could leave extending the deadline to
the Committee, a s it chose to do in a follow-up ruling to Kurić . Although this would
213 See Rule 42 of the Cou rt.
214 Rule 61(3) of the Court.
215 See also Para skeva (n 2), 15.
e Functioning of th e Pilot-Judgment Procedure of
the European C ourt of Human Rig hts in Practice
Netherlands Q uarterly of Human Ri ghts, Vol. 34/1 (2016) 69
help solve the second problem, it would be comparably hard for the Committee to
make (timely) decisions on requests for extension, as it is a political body with a full
agenda that only convenes four times a year to decide on execution matters.216 e
Committee could therefore consider delegating this responsibility to its Secretariat
and con rming the decision made by the Secretariat at t he earliest possible meeting.
is approach ts the C ommittee’s current practice as the Secretariat a lready handles
‘key interpretative and monitoring tasks’ and because the supervision process is
already characterised by ‘a high degree of delegation […] to the Secretariat’.217 Yet
another option is that the Court, instead of imposing a deadline, requests the State
to ‘produce, in co-operation with t he [C ommittee] a binding time frame in which to
make available a combination of e ective remedies’, as it does exceptionally.218 is
option solves both problems, but its downside is that the deadline is set less swi ly
than when the Cour t would set it in its judgment. Considering t hat many remedies are
already not implemented within the deadline set by the Court, any additional delay
would be problematic. Depending on where the Court’s priorities lie, that is with
leaving the operative provisions intac t, respecting the task div ision between itself and
the Committee, and/or with setting a deadline swi ly, it could choose a solution or
possibly a combination of solutions.
In essence, the last recom mendation is that the Court cla ri es di erent elements of
the PJP. Increasing the clarity of t he procedure is a goal in itself and a means to avoid
any appearance of arbitrariness. More speci cally, the Court could further clarify
why it applies the PJP to a speci c case or selection of cases and why it select s a certain
problem for treatment under the procedure. When the Court would more o en, as
suggested above, join applications brought by di erent applicants in one pilot case, it
also likely becomes easier to clarify why a problem necessitates the PJP, because the
problem is exposed in all its dimensions. Additionally, the Court could explain why
it sometimes establ ishes that a practice incompatible wit h the Convention exists, how
this nding relates to the factors war ranting the application of the PJP in Rule 61, and
which consequences this nding has, if any at all. e Cour t could also give reasons
for setting a time l imit and for the duration of the limit, based on t he factors outlined
in Rule 61.219 is is particularly important considering that the time limits are
frequently not abided by. Lastly, the Court could cla rify how and when its involvement
in the procedure ends.220 is preferably involves not closing the procedure in a
follow-up ruling as the Court did three times. is is for the Committee to decide,
216 See furt her David Harris and others Law of the E uropean Convention on Human Rights (3rd edn,
Oxford University P ress 2014), 181–184.
217 Baak Çali and Anne Koch, ‘Foxes Gu arding the Foxes? e Peer Review of Human Rights
Judgments by the Com mittee of Minister s of the Council of Europe’ (2014) 2 HRLR , 312–313.
218 Ananyev (n 7), para 7 dictu m; See also MC (n 42), para 11 dict um; Varg a (n 24), para 9 d ictum.
219 Rule 61(4) of the Court.
220 See also ‘Interlaken Decl aration’ (19February 2010): ‘stresses th e need for the Court to de velop clear
and predictable s tandards for the [PJP] as regards […] the procedure t o be followed’.
Lize R. Glas
70 Intersentia
both from a practica l perspective, because the execution of a pilot judgment norma lly
continues a er the Court is no longer involved, and from a principled perspective,
because the Committee bears responsibility for supervising execution. e Court
could clarify that its involvement in a procedure has ended by adding a phrase to
that e ect in the operative provisions of a follow-up ruling. e Court could even
lay down the obligation to indeed close its involvement at some point in Rule 61 or,
if this is not possible because the judgment is not executed satisfactorily, to continue
examining comparable applications. Additionally, it could prescribe in its Rules that
its involvement always ends with the adopt ion of a nal resolution by the Committee,
which signals the end of the Committee’s involvement. Such a prescription is in line
with the Cour t’s deference to the Committee in the PJP and with t heir respective roles
as laid down in the Convention. Equally, or perhaps more interesting and import ant
than the point that the Court’s involvement should end, is the question of when this
point is reached. De ning this point is instrumental in respecting the task division
between the Cour t and the Committee and the subsidiar ity principle, which requires
the Court to leave a measu re of freedom of choice to the States as to how they secure
the Convention rights. e Court c an, for example, choose to close its supervision a er
it has approved the remedial measu res on paper, leaving the review of the funct ioning
of the measures in practice to t he Committee. is would cha nge the Court’s current
practice, as it someti mes adds that its positive evaluation of a measure on paper may
be subject to review depending on how the me asure works out in practice.
us, although this article has shown that the PJP already is working well in
practice, it is clear th at some improvements still can be made. In part icular, the Court
could rely explicitly on Rule 61, focus more on the domestic problem requiring the
application of the PJP, address the matter of extending the time limit, and clarify
di erent elements of the procedure. e great relevance of the PJP for (potential)
applicants, the Court’s caseload, and the subsidiarity principle as well as the
accomplishments of the procedure so far as t hey were identi ed in th is contribution
make considering these recom mendations worthwhile.
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