Judicial Creativity in the Making: The Pilot Judgment Procedure a Decade after Its Inception

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Abstract
The pilot judgment procedure emerged from the jurisprudence of the European Court of Human Rights. Introduced a decade ago, it has been used to address the problem of repetitive cases. This article will investigate the procedure's creation through the prism of the Vienna Convention on the Law of Treaties. It will then analyze its subsequent institutionalization and application in the case law. This article will illustrate the structural changes generated by the procedure, and examine the reasons undermining the effectiveness of its operation. The pilot judgment procedure has been tainted by a tension between the Court's traditionalfunction of administrating "individual"justice and its occasional dispensing of "constitutional"justiceT. he pilot judgment procedure bears the traits of the latter. Moreover, as a mechanism established without a formal amendment, it lacks the explicit consent of the states. This deficit creates complications with regard to its enforcement, and thereby jeopardizes its own success.
  
Citation:
Ezgi Yildiz, Judicial Creativity in the Making, 8
Interdisc. J. Hum. Rts. L. 81 (2014-2015)
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JUDICIAL
CREATIVITY
IN
THE
MAKING:
The
Pilot
Judgment
Procedure
a
Decade
after
Its
Inception
Ezgi
Yildiz*
The
pilot
judgment
procedure
emerged
from
the
jurisprudence
of
the
European
Court
of
Human
Rights.
Introduced
a
decade
ago,
it
has
been
used
to
address
the
problem
of
repetitive
cases.
This
article
will
investigate
the
procedure's
creation
through
the
prism
of
the
Vienna
Convention
on the
Law
of
Treaties.
It
will
then
ana-
lyze
its
subsequent
institutionalization
and
application
in
the
case
law.
This
article
will
illustrate
the
structural
changes
generated
by
the
procedure,
and
examine
the
reasons undermining
the
ef-
fectiveness
of
its
operation.
The
pilot
judgment
procedure
has
been
tainted
by
a
tension
between
the
Court's
traditionalfunction
of
administrating
"individual"justice
and
its
occasional
dispens-
ing
of
"constitutional"justice.
The
pilot
judgment
procedure
bears
the
traits
of
the
latter.
Moreover,
as
a
mechanism established
without
a
formal
amendment,
it
lacks
the
explicit
consent
of
the
states.
This
deficit
creates
complications
with
regard
to
its
en-
forcement,
and
thereby
jeopardizes
its
own
success.
Keywords:
European
Court
of
Human
Rights,
pilot
judgment
procedure,
principle
of
subsidiarity,
individual
versus
constitutional
justice,
Vienna
Convention
on
the
Law
of
Treaties
I.
INTRODUCTION
he
European
Convention
on
Human
Rights
(ECHR,
the
Conven-
tion)
is
one
of
the
foremost
international
conventions aimed
at
safeguarding
core
civil
and
political
rights.
Drafted
by
the
Council
of
Europe
in
1950
the
Convention
came
into
force
in
1953.
It
introduced,
in-
ter
alia,
a
provision
establishing
a
judicial
review
mechanism, namely
the
European
Court
of
Human
Rights
(ECtHR,
the
Court),'
which began
oper-
ations in
1959.
Since
its
inception,
the
Convention
system has
expanded
not
only
institutionally,
but
also
jurisprudentially
and
geographically.2
Fol-
lowing
the
fall
of
the
Iron Curtain,
the
European
human
rights
regime
has
*Ezgi
Yildiz
is
a
Ph.D.
Candidate
at
the
Graduate
Institute
of
International
and
Devel-
opment
Studies
in
Geneva
and
a
visiting
doctoral
fellow
at
iCourts,
Center
of Excellence for
International
Courts,
University
of
Copenhagen.
Her research
is
funded
by
the
Swiss
National
Science
Foundation's
Doc.CH
grant.
The
author
is
grateful
to
Jan
Klabbers, Daniel
Over-
gaauw,
and the
anonymous
reviewers
of
the
IJHRL
for
their
insightful
comments.
In
the
beginning,
accepting
the
Court's
jurisdiction
and
individuals' direct
access
to
the
Court were
optional.
This
changed with
Protocol
11
that
entered
into
force
on
1 Nov. 1998.
Protocol
11
also
underlined
that
the
Court
shall
function
on
a
"permanent
basis" and
"the
ju-
risdiction
of
the
Court
shall
extend
to
all
matters
concerning
the
interpretation
and
applica-
tion
of
the
Convention
and the
protocols."
2
Laurence
R.
Helfer,
Redesigning
the
European
Court
of
Human
Rights:
Embed-
dedness
as
a
Deep
Structural
Principle
of
the
European
Convention
on
Human
Rights,
19
EJIL
125,
126
(2008).
82
Interdisciplinary
Journal
of
Human
Rights
Law
[Vol.8:1
incorporated
former
communist
countries,
increasing
the
number
of
state
parties
to
forty-seven.
This
political
move
has led
to
a
surge
in
the
number
of
cases
waiting
to
be
reviewed
by
the
Court.
An
unprecedented
caseload
arose due
to
the
accession
of
former communist countries
"whose
transi-
tion
to
democracy
...
[was]
often
slow
and
fitful,"
coupled with "systematic
human
rights
problems
in
longstanding
Convention
member
states."3
This
case-load
has
significantly
decreased
the
adjudicative capacity
of
the
Court.4
To
overcome
this
challenge,
the
Council
of
Europe
institutions
have
concentrated
on
redesigning
the
Convention
and
the
Court.5
For
ex-
ample, Protocol
14,
which
came
into
force
in
June
2010,
led
to
significant
changes
in
how
the
Court
operates.
These
changes
include
new
admissibil-
ity
criteria,
single-judge
formations
for
establishing
the
admissibility
of
cases,
provisions
for
facilitating
friendly
settlements,
and measures to
im-
prove
the
enforcement
of
the
Court's
judgments.
While
all
of
these
struc-
tural
changes
were
designed
to
decrease
the
large
number
of cases
before
the
Court,
the
desired
effect
has
only
partially
materialized.
6
The
Court
has
actively
participated
in
this
reform process
by
providing
the
Committee of
Ministers7
with
recommendations to
overcome
the
prob-
lem of
repetitive
cases.
8
Perhaps
one
of
the
most
innovative
recommenda-
tions
was
the
pilot
judgment
procedure,
which
was
intended
to address
a
multitude
of
identical
cases
arising
from systemic
deficiencies. This
new
procedure
has caused
mixed feelings
in
the human
rights community,
cre-
ating
a
wide
range of
reactions
-
from
deeming
it
a
promising
human
rights
litigation
tool
to questioning
its
legal
basis.9
The
former President
of
3
The
Parliamentary
Assembly
of
the
Council
of Europe, Resolution
(Res.
1226)
on
Exe-
cution
of
Judgments
of
the
European
Court
of
Human
Rights
(2000)
§7.
The
number of
pending
applications
before
a
judicial
formation,
for
31
Oct.
2013
was
107,600.
The
European
Court
of
Human
Rights,
Statistical
Information,
www.echr.coe.int/Documents/Stats
pending
month
201l
BIL.pdf.
4
Helfer,
supra
note
2
at
126.
5
Michael
O'Boyle,
On
Reforming
the
Operation
of
the
European
Court
of
Human
Rights,
1
European Human
Rights
Law
Rev.
1,
3-6,
(2008).
6
The
Court
has announced
that
there has
been
a
decrease in
the
backlog
of
cases, which
are
inadmissible
since
Protocol
14
went
into
force.
The
total
number
of
pending
cases
dropped
from
160,200
to
111,350
in
three
years,
namely
from
1
Sept.
2011
to
1
Oct.
2013.
Alt-
hough
this
decrease
is
noteworthy
it
is
not
sufficient
to
increase
the
Court's
adjudicative
ca-
pacity.
This
is
because
the
drop
in
the
number
of
pending
applications
was
accomplished
with
the
work of single-judge
formations to
a
great extent. What
the
Court
needs
to
face
now
is
the
large
number
of
pending
chamber
judgments.
The
European
Court
of
Human
Rights,
Press
Release:
Reform
of
the
Court
Filtering
of
cases
successful
in
reducing
backlog,
ECHR
312
(2013)
(24
Oct.
2013).
7
The
Committee of
Ministers is
the
Council
of
Europe's decision-making
body,
and
it
comprises
Foreign
Affairs
Ministers
of
all
member
states
or
their
permanent
diplomatic rep-
resentatives.
8
O'Boyle,
supra
note
5 at
7.
9
For more
see,
Philip
Royston
Leach
et
al.,
RESPONDING
TO
SYSTEMIC
HUMAN
RIGHTS
VI-
OLATIONS:
AN
ANALYSIS
OF
"PILOT JUDGEMENTS"
OF
THE
EUROPEAN
COURT
OF
HUMAN
RIGHTS
AND
THEIR IMPACTAT
NATIONAL LEVEL
(2010);
Helen
Keller,
Andreas
Fischer
and
Daniela
Kiihne,
Debating
the
Future
of
the
European
Court
of
Human
Rights
after
the
Interlaken
Conference:
Two
Innovative Proposals,
21
THE
EUROPEAN
JOURNAL
OF
INT'L
LAW
1025
(2010);
Janneke
Gerards,
The
Pilot
Judgment
Procedure
before
the
European
Court
of
Hu-
JUDICIAL
CREATIVITY
IN
THE MAKING
the
Court,
Luzius
Wildhaber,
noted
that
this
procedure
was
"on
an
experi-
mental
stage."1o
Even
though
the
pilot
judgment
procedure
has been
in
use
since
2004, it
is
still
the
subject of
continuing debate.
This
debate
will
be
engaged by
evaluating
(i)
how
the
pilot
judgment
procedure
was
adopted
in
light of
the
Vienna
Convention
on
the
Law
of
Treaties
of
1969
(VCLT)
(ii)
the extent to
which
it
has been
institutionalized, and
(iii)
the
future
prospects
of
the
pilot
judgment
procedure. Particular
attention
will
be
paid
to
the
pilot
judgment
procedure's adoption
and institutionalization,
which
are
indicative
of
its
success.
The
pilot
judgment
procedure
was
adopted
through
an
amendment
by
informal
means. With
this
procedure, the
Court
reviews
systemic
problems
and
prescribes
general
measures,
giving
an
erga
omnes
effect
to
its
judg-
ments.
Such
a
function
goes
well
beyond
the intentions
of
the
drafters
of
the
Convention,"
and
results in substantive and
structural
changes.
How-
ever
these
changes
have
not
been
consolidated
through the
procedure's
in-
stitutionalization.
In
particular,
the
manner
in
which
this
procedure oper-
ates
is
incompatible
with
the
principle
of
subsidiarity
that
is
ingrained
in
the
Convention.
As
a
matter
of
fact,
this
incompatibility
reflects
a
larger
question
on
the
role of
the
Court
as
an
institution
to
deliver
"constitution-
al"
justice
or "individual"
justice consistent
with the
subsidiarity
princi-
ple.12
The
pilot
judgment
procedure
inheriting
this tension
has
been
ob-
structed
by
this
issue.
The
structure
of
the
article
is
as
follows.
First,
the
background
of
the
pilot
judgment
procedure
is
examined.
Second,
the
scope of
the
structural
changes
generated
by
this
procedure
is
discussed. Third, the procedure's
inception
using
the
principles
of
the
VCLT
is
assessed.
Fourth, the
institu-
tionalization
of
pilot
judgments
is
considered.
Finally,
the
shortfalls
of
the
pilot
judgment
procedure
are
explained,
in
particular
how
it
is
caught
be-
tween
the
principle
of
subsidiarity
and
the
aspiration
to
make
the
Court
more
like
a
constitutional
court.
II.
THE
BACKGROUND
TO
THE PILOT
JUDGMENT
PROCEDURE
The
pilot
judgment
procedure
was
created
to address
repetitive
cases,
which
"jeopardize the
effectiveness of
Strasbourg
machinery."13
The
proce-
dure
finds
its
origins
in the
negotiations
concerning
the
drafting
of
Proto-
man Rights
as
an
Instrument
for
Dialogue
in
Monica
Claes
et
al.
(eds.),
CONSTITUTIONAL
CONVERSATIONS,
(2012);
Markus
Fyrnys,
Expanding
Competences
by
Judicial
Lawmaking:
The
Pilot
Judgment
Procedure
of
the
European
Court
of
Human
Rights,
12
GERMAN LAW
JOURNAL
1231
(2011).
lo
Luzius
Wildhaber,
Discussions
Following
the
Presentation
by
Luzius
Wildhaber
in
Riidiger
Wolfrum
and
Ulrike
Deutsch
(eds.),
THE
EUROPEAN
COURT
OF
HUMAN
RIGHTS
OVER-
WHELMED
BY
APPLICATIONS:
PROBLEMS
AND
POSSIBLE
SOLUTIONS INTERNATIONAL
WORKSHOP,
HEIDELBERG,
17-18
DECEMEBR
2007,
90
(2009).
11
Fyrnys,
supra
note
9
at
1233.
12
For more,
see
Heifer,
supra
note
2.
13
George
Letsas,
A
THEORY
OF
INTERPRETATION
OF
THE
EUROPEAN CONVENTION
ON
HU-
MAN
RIGHTS
33
(2007).
2014-2015]
84
Interdisciplinary
Journal
of
Human
Rights
Law
[Vol.8:1
col
14.
Despite
the
Court's
advocating,14
the
Committee of
Ministers'
Steer-
ing
Committee for
Human
Rightsl5
did
not
incorporate
a
reference
to
the
pilot
judgment
procedure in the
draft
Protocol.
16
One
reason
for
this
deci-
sion
was
to
avoid
the
political
resistance
that
was likely
to
arise
from im-
posing
formal
obligations
on
states
to adopt
general
measures.17
Instead,
in
2004, the
Committee
gave
its
blessings
to
the
Court
in
a
non-binding
form,
namely by adopting
a
resolution
and
a
recommendation.'
8
The
Committee
encouraged
the
Court
to
identify underlying
systemic
problems
that
were
likely
to
increase
the number
of
applications,
in
an
effort
to
"assist
states
in
finding
the
appropriate
solution
and
the
Committee
of
Ministers
in
super-
vising
the
execution
of
judgments."'
1
9
Similarly,
the
Committee
advised
state
parties
to
"set up
effective
remedies
in
order
to
avoid
repetitive
cases
being
brought
before
the
Court."20
Following
this
advice,
the
Court
gave
its
first pilot
judgment
in
the
case
of
Broniowski
v.
Poland
in
June
2004.
The
Broniowski
case was
lodged
as
a
compensation
claim
concerning
properties
lost
during
World
War
11.21
Poland's
eastern border
was
re-
drawn
along
the
Bug
River
following
the
armed
conflict,
and
Polish resi-
dents
living
"beyond
the
Bug
River"
were
repatriated.22
Poland
promised
to
compensate
those
who
had
to
abandon
their
properties,
a
group
totaling
nearly
80,000
persons.
23
Over
the
next
fifty
years,
the
government
passed
several
legislative acts
which
provided
a
remedy
to
some
of
the claimants
while leaving
others without
compensation.24
The
applicant's
grandmother
was
one of
those
who
were
repatriated,
but
who
did
not
receive
sufficient
compensation.
The
applicant
claimed
that
his
entitlement
to
compensatory
property
had
not
been
satisfied.
The
Court
found
the
application
well-
founded,
and
passed
a
judgment
stating
that
the government's
compensa-
tion
scheme, which
provided
the
applicant
with
only
2
percent
of
the
real
value
of
the
lost
property,
was
in
violation
of
Article
1
of
Protocol
1.25
Nevertheless,
the
Court
did
not
stop
there.
It held
that
this
violation
"originated in
a
widespread problem
which
resulted
from
a
malfunctioning
of Polish legislation
and administrative
practice
and
which
has
affected
14
The
European
Court
of
Human
Rights,
Position
Paper
of
the
European
Court
of
Hu-
man
Rights, CDDH-GDR(2003)
024
(12
Sept.
2003).
15
The
Steering
Committee
is
set up
by
the
Committee of
Ministers
under
Article
17
of
the
Statute
of
the
Council of
Europe. It
is
composed
of
the representatives
of
forty-seven
member
states.
It
is main
responsibilities
are
to
advise
the
Committee of
Ministers
on
issues regarding
human
rights protection and
elaborating common
standards
for
the states.
16
Position
Paper
of
the
European
Court
of
Human
Rights,
supra
note
14.
17
Fyrnys,
supra
note
9
at
1239-1240.
lSArticle
15b
of
the
Statute
of
the
Council
of Europe
mandates the
Committee
of
Minister
to
issuing
non-binding recommendation and
resolution.
19
The
Committee of
Ministers,
Resolution
Res
(2004)3,
on
Judgments
Revealing
an
Underlying
Systematic
Problem
(12
May
2004).
20
The
Committee of
Ministers, Recommendation
Rec
(2004)6
on
the
Improvement
of
Domestic Remedies
(12
May
2004).
21
Broniowski
v.
Poland,
[GC],
App.
No.
31443/96,
Eur.
Ct.
H.R.
(2004-V)
10-11.
22
Id.
at
T
11.
23
Id.
at
T
162.
24
Id.
at
T
34-35.
25
Id.
at
T186-87.
JUDICIAL
CREATIVITY
IN
THE MAKING
and
remains
capable
of
affecting
a
large
number
of
persons."2
6
The Court
supported
this
reasoning
with
the
Committee's
above-mentioned resolu-
tion
and
recommendation.27
Relying
on
Article
46
of
the
ECHR,
the
Court
extrapolated
the
consequences for
the
responding
state. 8
Adopting
a
broad
interpretation
of
this
provision,
the
Court
found
that
the
state
did
not
only
have
to pay
the
individual
just
satisfaction
under
Article
41
of
the
ECHR,
but
had
a
legal
obligation
to
provide general
and/or
individual
measures.
29
These
measures
were
"to
be
adopted in
their
domestic
legal
order
to
put
an
end
to
the
violation
found
by
the
Court
and
to
redress
so
far
as
possible
the
effects
...
provided
that
such means
are
compatible
with
the
conclusions
set
out
in
the
Court's
judgment."30
The
Court
ex-
plained
this
reasoning
further:
Although
it
is
in
principle
not
for
the
Court
to
determine
what
re-
medial
measures
may
be
appropriate
to
satisfy
the
respondent
State's
obligations
under
Article
46
of
the
Convention,
in
view
of
the
systemic
situation
which
it
has
identified, the
Court would
ob-
serve
that
general
measures
at
national
level
are
undoubtedly
called
for
in
execution
of
the present
judgment,
measures
which
must
take
into
account
the
many
people
affected.
Above
all,
the
measures
adopted
must
be
such
as
to remedy
the
systemic
defect
underlying
the
Court's finding
of
a
violation
so
as
not
to overbur-
den the
Convention
system with
large
numbers
of
applications
de-
riving
from
the
same
cause.3
1
Evidently,
this
reasoning
appears to
be
contradictory.
On
the
one
hand,
the
Court
recognized
that
determining
the
remedial measures
is
not
one
of
its
tasks
but
on
the
other
hand,
it
made
a
pronouncement
on
the
remedial
measures
for
the
state
concerned.
Based
on
this
reasoning,
the
Court
included
in
the
operative
part
of
the
judgment
a
statement
to
the
ef-
fect
that
the
responding
state
must
"secure
the
implementation
of
the
property
right
in
question in
respect
of
the
remaining
Bug
River
claim-
ants."32
As
a
result,
it
initiated the
pilot
judgment
procedure.
In
essence,
this
procedure
was
launched
by
the
Court
with
the
political
support
of
the
Committee
of
Ministers.
The
pilot
judgment
procedure,
in-
stituted
by
judicial
creativity,
bypassed
the
course
of
action
needed
for
a
formal
amendment. Instead
of
initiating
the
amendment
procedure,
the
Committee of Ministers
issued
a
non-binding recommendation and
resolu-
tion
that
advocated
the
creation
of
the
pilot
judgment
procedure.33
The
Court
relied
on
these documents and
its broad
interpretation
of
Article
46
261d.
at
189.
27
Id.
at
19o.
28
Id.
at
192.
291d.
3o1Id.
3
Id.
at
193.
32 Id.
at
4
(operative
part).
33
Resolution
Res
(2004)3,
supra
note
19;
Recommendation
Rec
(2004)6,
supra
note
2014-2015]
86
Interdisciplinary
Journal
of
Human
Rights
Law
[Vol.8:1
of
the
ECHR
when
launching
the
procedure.
This
in
its
totality
may
consti-
tute
an
amendment
by
informal means.
III.
THE
STRUCTURAL CHANGES
WHICH
AROSE
WITH
THE
ESTABLISHMENT
OF
THE PILOT
JUDGMENT
PROCEDURE
Before
examining
the
reasoning
underlying
the
decision
in
the
Broniowski
case,
some
of
the
structural
changes which
have
been
spurred
by
this
new
procedure need
to
be
considered.
Based
on
Broniowski,
the
Court
has
drafted
Rule
61
of
the
Rules
of
Court.34
This
rule
defines
the
main
attributes
of
pilot
judgments
as
providing guidelines
and formulating
general
measures
aimed
at
addressing
the
systemic
deficiencies
at
national
level.35
Furthermore,
Rule
61(3)
provides
that
the
Court shall
identify
the
type
of
remedial
measures
in
the
operative
provisions
of
the
judgment.3
6
Additionally,
the
Court may
adjourn
all
other
pending
applications
result-
ing
from
the
same
cause,
as
Rule
61(6)
states.37
This
procedure
also
re-
quires
a
close
supervision
of
the
Committee of Ministers.
In
the
event
that
the
state
fails
to
materialize
the
required
changes,
the
adjourned
applica-
tions
might
be
reviewed
individually,
which
is
at
the
Court's
discretion.3
8
As
the
Court explains,
a
"'pilot'
case
necessarily
extends beyond
the
sole
in-
terests
of
the
individual applicant
and requires
it
to
examine
that
case also
from
the
perspective of
the
general
measures
that
need to
be
taken
in
the
interest
of
other
potentially
affected
persons."39Accordingly,
the
suggested
changes
are
not
minor,
but rather
substantial.
They
alter
the
whole
land-
scape
of
the
interactive realm
between
the
Court,
the
state and
the
individ-
ual
applicant,
and
lead
to
ramifications
particularly
for
the
latter
two
ac-
tors.
First,
for
the
individuals
whose
applications
are classified
under
the
pi-
lot
judgment
procedure
but
not
selected
as
the
pilot
case,
this
translates
as
an
obstruction
to
voicing
their
complaints.
Most
importantly, their
appli-
cations
could
be
adjourned.
As
Markus
Fryns
rightly
stresses,
this
ad-
journment
impairs
the
individual's
right
of
access
to
the
Court
under
Arti-
cle
34 of
the
ECHR.40
The
Court only
reviews
the
selected
pilot
case
and
extrapolates
prescriptions
for
similar
cases. However,
this
does
not
guar-
antee
that
general
measures
requested
by
the
Court
would
address
accu-
34
The
European
Court of
Human
Rights,
Rules
of
Court
(1
July
2014),
www.echr.coe.int/Documents/Rules
Court
ENG.odf.
35
Id.
at
§
61(1).
36
The
first
case
in
which
the
Court
indicated
that
some general
measures
should
be
tak-
en
was
Marckx
v.
Belgium,
31
Eur.
Ct.
H.R.,
(ser.
A)
(1979).
However,
these measures
were
not
framed
as
binding
obligations
but
more
like
recommendations.
37
The
Court
might
continue
reviewing cases,
which
are
directly
linked
to the
most
fun-
damental
rights,
such
as
inhuman
and degrading
treatment,
as
it
was
seen
in
Ananyev
and
Others
v.
Russia,
App.
No.
42525/07,
6o8oo/o8,
Eur.
Ct.
H.R.
(2012-I).
3
8
See
Leach
et
al.,
supra
note
9
at
176.
39 Greens
and
M.T.
v.
United Kingdom,
App.
No.
60041/o8 &
60054/o8,
Eur.
Ct.
H.R.
(2010-IV)
§111.
40
Fryns,
supra
note
9
at
1257.
JUDICIAL
CREATIVITY
IN
THE MAKING
rately
all
the
legal
issues raised
in
numerous
frozen
cases.41
For
the
frozen
applications,
the
prospect
of
receiving
individual
compensation
depends
on
the
implementation
of
the
general
measures provided in
the
pilot
judgment,
which
might
or
might
not
directly
address
their
problem.
In
the
event
that
a
state
fails
to
implement these
general
measures within
the
re-
quired
time
period,
there
is
a
possibility that
the Court
will
review the
ad-
journed
cases.
Nonetheless,
there
is
no
stated
timeline
for
reopening
the
adjourned
cases.
As
one
would
expect,
these steps result
in
further
delays
and
uncertainty.
Hence,
this
procedure
creates
a
serious disadvantage
for
the
individual
applicant
whose
case is
not
the
pilot
case.
Second,
as
for
states,
these
ramifications
come
in
the
form
of
clear
ob-
ligations
to
implement
the
general
measures
that
have
been identified
by
the
Court.
As
Judge
Lech
Garlicki
underlines,
pilot
judgments
"indicate
more
concrete
steps to
be
taken
by
the
State"
and
are
not
"mere
recom-
mendations"
but
"commands."42
This
attribute
of
pilot
judgments
is
inher-
ently
at odds with
the
subsidiarity
principle.
This
principle has
a
distinct
meaning
in
the
Convention
context,
and underlines
that
Strasbourg
insti-
tutions
are
"supplementary and
subsidiary
to
the
protection
of
rights
and
freedoms
under
national
legal
systems."43
It first emerged
in the
Court's
case
law,44
and
has
been
defined
as
"a
tool
of
judicial
self-restraint."45
In
the
Belgian
Linguistic
case,
the
Court
defined
the characteristics
of
this
principle:
[The
Court]
cannot
assume
the
role
of
the competent national au-
thorities,
for
it
would
thereby
lose
sight
of
the subsidiary
nature
of
the
international
machinery
of
collective
enforcement established
by
the
Convention.
The
national
authorities remain
free
to
choose
the
measures
which
they
consider
appropriate
in
those
matters
which
are
governed
by
the
Convention.
Review
by
the
Court
con-
cerns
only
the
conformity
of
these
measures
with
the
Conven-
tion.4
6
The
subsidiarity
principle
grants
discretion
to
the
national
authorities
in
identifying
the
appropriate
measures
to
be
implemented.
Moreover,
it
restricts
the
role
of
the
Court
to
only
reviewing
the
compatibility
of
these
measures
with
the
principles
of
the
Convention by
means
of
delivering
in-
dividual
justice.
However,
as
Garlicki
argues,
unlike
a
single
judgment,
which
creates
obligations
regarding
the singular
context
of
the
individual
41
Heifer,
supra
note
2
at
154.
42
Lech
Garlicki,
Broniowski
and
After:
On
the
Dual
Nature of'Pilot
Judgments
in
Lu-
cius
Caflisch
et
al.
(eds.),
LIBER AMICORUM
LUZIUS WILDHABER,
HUMAN
RIGHTS-STRASBOURG
ViEws
185
(2007).
43
Heifer,
supra
note
2
at
128.
44
Jonas
Christoffersen,
FAIR
BALANCE:
PROPORTIONALITY, SUBSIDIARITYAND
PRIMARITY
IN
THE EUROPEAN CONVENTION
ON
HUMAN
RIGHTS
236
(2009).
45
Paul Mahoney,
JudicialActivism
and
Judicial
Self-Restraint
in
the
European
Court
of
Human
Rights:
Two
Sides
of
the
Same
Coin,
11
Hum.
RTS.
L.
J.
57,
78
(199o);
See
also
Chris-
toffersen,
supra
note
44
at
242.
46
Belgian
Linguistic
Case
6
Eur.
Ct.
H.R.
(ser.
A)
(1968)
§1o.
2014-2015]
88
Interdisciplinary
Journal
of
Human
Rights
Law
[Vol.8:1
claimants,
pilot
judgments
combine
individual
and
general
effects
to
mir-
ror
"the procedure
of
constitutional
complaint"
and
highlight
the "consti-
tutional
dimension"
of
the
Court's
functions.47
The
legitimate
question
to
ask
is
whether
such
a
position,
namely
"the
same
authority
as
a
supreme
court
within
a
national
system,"4
8
is
fit
for
the
Court.
This
leads
to
the
debate
concerning
the
Court's
role
as
an
institution
to
deliver
"individual" or
"constitutional" justice.
Steven
Greer
explains
this
distinction
clearly:
the
idea
behind the
individual
justice
model
is
that
the
Court's
primary
function
is
to
provide
redress to the
individual
applicant
regardless
of
the
systemic
improvements,
which
might
be
generated
in
the
process;
as
for
the
constitutional
model,
the
Court's
role
is
to
choose
and
adjudicate
only
the most
serious
allegations
to
create
a
significant
impact
on
the
state
concerned.49
Greer
and
Wildhaber
underline
the impossibility
of
the
"systematic
delivery
of
individual
justice"
due
to the
increasing
case-
load.5o
Therefore,
they
call
for
the
consolidation
of
the
Court's
role
in ad-
ministrating constitutional justice without transforming
the
Court
into
a
constitutional
court.
51
They
rightly
point
out
that
the
Court
already
under-
takes
this
role,
which
should
be
formally
acknowledged
and performed
in
a
more
consistent
manner.5
2
Alec
Stone
Sweet
takes
it
one
step
further
and
argues
that
the
Court
is
already
a
constitutional
court,
because
it
acts
like
one.
53
Greer
and
Wildhaber's observation
that
the
Court
has
assumed
an
in-
creasingly
more
constitutional
role
is
well
reasoned.
However
the
viability
of
its
combining
constitutional and
individual
justice
can
be
called
into
question.
As
Greer
rightly emphasizes,
the "constitutionalization"
of
the
Court
did not
take
part
in
the
official
reform
debate.54
Nevertheless,
the
Court's
constitutionalization
is
underway,
pilot
judgments
being
its
prime
example.55
In
order
to
assess
the
validity
of
this
development,
one
has
to
look
at
the
process
from
which
the
pilot
judgment
procedure
was
derived.
This
task
will
be
undertaken
in
the
following
section.
47
Id.
at
§186.
48
Christian
Tomuschat,
The
European
Court
of
Human
Rights
Overwhelmed
by
Appli-
cations:
Problems
and
Possible
Solutions
in
Riidiger
Wolfrum
and
Ulrike
Deutsch
(eds.),
THE
EUROPEAN
COURT
OF
HUMAN
RIGHTS
OVERWHELMED
BY
APPLICATIONS:
PROBLEMS
AND
POSSI-
BLE
SOLUTIONS
INTERNATIONAL
WORKSHOP,
HEIDELBERG,
17-18
DECEMBER
2007,
15
(2009).
49
Steven
Greer
and Andrew
Williams,
Human
Rights
in
the
Council
of
Europe
and
the
EU:
Towards
'Individual',
'Constitutional'
or
'Institutional'Justice?
15
EUROPEAN LAW
JOUR-
NAL
462,
466
(2009).
5o
Steven
Greer
and
Luzius
Wildhaber,
Revisiting
the
Debate
about
'Constitutionalising'
the
European
Court
of
Human
Rights,
12
HUMAN
RIGHTS
LAW
REVIEW
655,
664
(2012).
51
Id.
at
674.
52
Id.
A3
lec
Stone
Sweet, On
the
Constitutionalisation
of
the
Convention:
The
European
Court
of
Human
Rights
as
a Constitutional
Court,
FACULTY
SCHOLARSHIP
SERIES,
PAPER
71
(2OO9),
htt:D://digitalcommons.law.vale.edu/fss
papers/71.
54
Steven
Greer,
Constitutionalizing
Adjudication
under
the
European
Convention
on
Human
Rights,
23
OXFORD
JOURNAL
OF LEGAL
STUDIES
405,
406 (2003).
55
Greer
and
Wildhaber,
supra
note
5o
at
687.
JUDICIAL
CREATIVITY
IN
THE MAKING
IV.
AN
ASSESSMENT
OF
THE
PROCEDURE THROUGH
THE
LENS OF
THE
VIENNA
CONVENTION
ON
THE
LAW
OF
TREATIES
Since
the
pilot
judgment
procedure
originates
in the
Broniowski
judgment,
it
is
through
an
evaluation
of
this
judgment
that
one
can
unravel
how
and
on
what grounds
the
procedure
came
into
existence.
While
mak-
ing
such
an
assessment,
it
is
fitting
to
apply
the
general
rules
of
interpreta-
tion
in
Articles
31-33
of
the
VCLT.5
6
According
to
Article
31(1)
of
the
VCLT,
"a
treaty
shall
be
interpreted
in
good
faith in
accordance
with
the
ordinary
meaning
to
be
given
to
the terms
of
treaty
in
their
context
and
in
the
light
of
its
object
and
purpose."57
When
interpreting the
Convention,
the
Court
has
adopted
a
more
"flexible"
approach,
creating
its
own
labels
and
principles such
as
"living
instrument,"5
8
or
"margin
of
appreciation."59
This
trend
rejects
the
idea
that
the
Convention
must
be
interpreted
by
reference
to
its
origins
in
the
1950s,
and establishes
instead
that
it
should
be
interpreted
"in the
light
of
present-day
conditions."
6
0
The
pilot
judgment
procedure
has
been
consid-
ered
a
part
of
this
tradition.
Moreover,
since
it
has
been
portrayed
as
a
procedural innovation
that
is
designed
to
reduce
the
Court's
caseload,
the
Vienna
Convention's
rules
of
interpretation
have
not
been
employed
in
discussions on
the
formation
of
this
procedure.
61
In
this
section,
these
rules
will
be
applied
to
the
Broniowski
judgment,
which
established
the
procedure's foundations.
In
this
judgment,
the
Court
primarily
relied on
Article
46
of
the
ECHR
in
inaugurating
the
pilot
judgment
procedure.
Interpreting
this
article
ra-
ther
broadly,
it
prescribed
general
measures
to
the responding
state.62
These
measures included
making
legislative
changes,
and
providing
reme-
dies
for
not
only
the
individual applicant,
but
many
others
potentially
in
the
same
situation
as well.
However,
a
legitimate
question
to
ask
is
wheth-
er
Article
46
of
the
ECHR
provides
the
grounds
for
such
an
approach.
This
article
reads
as follows:
"the
High
Contracting
Parties
undertake
to
abide
by
the
final
judgment
of
the
Court
in
any
case
to
which
they
are
parties."
63
A
textual
analysis
of
the
article clearly
shows
that
this
provision
concerns
the
binding
nature
of
the
Court's
judgments.
Moreover,
it
does
not
grant
the
Court
the
capacity
to
deliver
judgments
that
concern
not
only
the
indi-
56
Alastair
Mowbray, The
Creativity
of
the
European
Court
of
Human
Rights,
5
HUMAN
RIGHTS
LAW
REVIEW
57,58
(2005).
57
Vienna Convention
on
the
Law
of
Treaties, art.
31(1),
23
May
1969,
1155
U.N.T.S.
331.
58
This
term,
meaning the
Convention
must
be
interpreted
in
the
light of
present-day
conditions,
was
coined
in
Tyrer
v.
United Kingdom,
26
Eur.
Ct.
H.R.
(ser.
A) (1978).
59
This
term
refers
to
a
degree
of
discretion
that
is
granted to
member
states
in
fulfilling
their
obligations
under
the
Convention. It
was
first
used
in
Handyside
v.
United Kingdom,
24
Eur.
Ct. H.
R.
(ser.
A) (1976).
6o
Letsas,
supra
note
13
at
59.
61
Fyrnys,
supra
note
9;
Dominik
Haider,
THE
PILOT-JUDGEMENT
PROCEDURE
OF
THE
EU-
ROPEAN
COURT
OF
HUMAN
RIGHTS
(2013).
62
Broniowski
v.
Poland,
supra
note
21
at
§192.
63
European
Convention on
Human
Rights,
art.
46,
4
Nov.
1950,
ETS
5;
213
UNTS
221.
2014-2015]
90
Interdisciplinary
Journal of
Human
Rights
Law
[Vol.8:1
vidual
applicant,
but
also
other
victims.
As
Fyrnys
explains,
the
substantive
binding
effect
of
the
judgment's
operative
part
is
confined
to
ratione
per-
sonae
(personal
scope;
the
individual
applicant
or
the
state
party
that
lodges
the
application),
ratione
temporis
(temporal
scope;
the
matter
in
dispute
excluding
its
immediate
prospective
effect),
and
ratione
materiae
(material
scope;
the
facts
of
the
individual
case).64
In
addition,
if
one
includes
Article
41
of
the
ECHR
in one's
analysis,
the
scope
of
the
Court's
judgments
becomes
clearer.
According
to
this pro-
vision,
"if
the internal
law
of
the
High
Contracting
Party
concerned
allows
only
partial
reparation
to
be
made,
the
Court shall,
if necessary,
afford
just
satisfaction
to
the
injured
party."
65
This
provision provides
that
in
cases
where
the national
authorities
do
not
provide
full
reparation
(restitution
in
integrum),
the
Court can award
the
individual applicant
just
satisfaction.
Evidently,
this
does
not
imply
that
the
Court
should
dictate
what
measures
to
implement
for providing
reparations
for
possible
victims
other
than the
individual applicant.
In
other
words,
it
does
not
condone
the
Court
giving
erga
omnes
effect
to
its judgments,
or
assuming
an appellate
body func-
tion
to
review
the
state's
national
legislation. In
fact,
as
Helfer
emphasizes,
none
of
the
provisions
of
the
Convention
gives
erga
omnes
effect
to
the
Court's
judgments.
66
Correspondingly,
the
Court's
reliance
on
Article
46
of
the
ECHR
when
delivering
judgments,
which
include
obligations
to ad-
dress
systematic
problems in the
operative
part
of
the
judgment,
is
not
persuasive enough.
Moreover, one
can
argue
that
the
objective
of
the
pilot
judgment
pro-
cedure
corresponds to the
broad
object
and purpose
of
the
Convention,
namely
safeguarding
Convention
rights.
67
However,
the
"object
and
pur-
pose
should
be
understood
as
an
objective
concept, referring
to the
goals
of
the treaty's drafters
as
those
goals
are
reflected
in
the treaty's
text."68
Hence,
it
can
be
still
be
questioned whether
using
this
procedure
is
in
ac-
cordance with
the
drafter's
intentions.
Articles
19
and
32
of
the
ECHR
limit
the
Court's
function to
"the
observance
of
the
engagements
undertaken
by
the
High
Contracting
Parties
in
the
Convention
and
the
Protocols
thereto,"
and
its jurisdiction
to
"all
matters
concerning
the
interpretation
and
appli-
cation
of
the
Convention
and
the
Protocols
thereto."
These two
provisions
describe
the
role of
the
Court
as
interpreting the
Convention
without
granting
it the
competence
to
initiate
structural
changes
in the
Convention
system.
This
conclusion
is
also
supported
by
the
travaux
pr6paratoires.
69
As
underlined
in
Article
32
of
the
VCLT,
one
can
resort
to
supplementary
64
Fyrnys,
supra
note
9
at
1234-1235.
65
European
Convention
on
Human
Rights,
art.
41,
supra
note
63.
66
Heifer,
supra
note
2
at
136.
67
Harder,
supra
note
61
at
264.
68
David
S.
Jonas
and Thomas
N.
Saunders,
The
Object
and
the
Purpose
of
a
Treaty:
Three
Interpretive
Methods,
43
VANDERBILT
JOURNAL
OF
TRANSNATIONAL
LAW
565,
581
(2010).
69
Fyrnys
supra
note
9.
JUDICIAL
CREATIVITY
IN
THE MAKING
means
of
interpretation,
including
the
preparatory
work
of
the
treaty.
An
analysis
of
the
preparatory
work
of
the
Convention
shows
that
the
scope
of
the
Court's competence
was
discussed during
the
negotiations.
At
the
Ple-
nary
Sitting
of
September
7,
1949,
Pierre-Henri
Teitgen,
the
representative
of
France,
touched
upon
this
issue
by
emphasizing
that
"the
Court
will
not
in
any
way
operate
as
a
Supreme
Court
of
Appeal having
jurisdiction
to
re-
view
any
errors
of laws
or
of
fact
which
are alleged
against
a
national
Court."70
This
view
was also
reflected
in
the
draft
report
of
the
Legal
Com-
mittee
to
the
Consultative Assembly, which
underlined
that
"the
Court
will
not
in
any
way
operate
as
a
Court of
Appeal, having
power
to
revise
inter-
nal
orders
and
verdiets."71
Ed
Bates,
who
provides
a
brilliant
account
of
the
evolution of
the
Convention
system,
touches
upon
this
point
as
well.72
He
argues
that
the
drafters
confined
the
Court's
functions
to
making
declara-
tions
concerning individual violations,
and did
not grant the
Court
the
au-
thority
to
declare
the
state
acts
void.73
Furthermore,
the
Committee
of
Ex-
perts
restricted
the
scope
of
the
Court's
functions to
only
review
the
cases
concerning
the
violation
of
individual
rights.
The
Court
was
not permitted
to
give
rulings
on
cases
concerning violations "simply
by
the
promulgation
of
legislative
acts."74
The
drafters
defined
the
Court's
powers
to
be
limited
to
giving
rulings
on
individual
violations.75
Therefore,
an
expansion
in
the
competence of
the
Court, by
granting
erga
omnes
nature to
its
judgments
or
delivering
constitutional
review,
cannot
be
traced
back
to
the
original
intentions
of
the
drafters.76
Clearly,
there
are
serious
possible
challenges
to
the
argument
that,
in
light of
present
conditions,
the
Court
should
deliv-
er
judgments not
only
for
the
individual applicant concerned
but
also
for
a
larger
group
of
possible
victims.
If
these
structural
changes
are
to
be
introduced
in
the
Convention
sys-
tem,
then
they should
be
presented
in
the
form
of
an
amendment
to
the
ECHR. Given
the
fact
that
the
basis of an
expansion
of
the
Court's
authori-
ty cannot
be
found
in
either
the
Convention
or
in
the intentions
of
the
drafters,
the
logical
next
step
would
be
to adopt
an
amendment,
allowing
national
legislatures
to
participate
in
the
process.
The
rules
of
this
procedure
are clearly
laid
down
in
Articles
39-40
of
the
VCLT.
Article
40
of
the
VCLT
presents the
procedure
as
follows:
"[a]ny
proposal
to
amend
a
multilateral
treaty
as
between
all
the
parties must
be
notified
to
all
the
contracting
States,
each
one
of
which shall
have
the
right
to
take
part
in."77
However,
this
provision
was
not
observed
in
the initia-
70
The
Council
of Europe,
COLLECTED
EDITION
OF
THE
'TRAVAUX
PREPARATOIRES'
OF THE
EUROPEAN CONVENTION
ON
HUMAN
RIGHTS,
VOL.
I,
133 (1975).
71
Id.
at
93-94.
7,
Ed Bates,
THE
EVOLUTION
OF
THE
EUROPEAN CONVENTION
ON
HUMAN
RIGHTS:
FROM
ITS
INCEPTION
TO
THE
CREATION
OFA
PERMANENT COURT
OF
HUMAN
RIGHTS,
87
(2010).
73
Id.
74
The
Council
of Europe,
COLLECTED
EDITION
OF
THE
'TRAVAUX
PREPARATOIRES'
OF
THE
EUROPEAN CONVENTION
ON
HUMAN
RIGHTS,
VOL.
II,
502,
503
(1975).
75
Id.
76
Fyrnys,
supra
note
9
at
1252.
77
Vienna
Convention on
the
Law
of
Treaties,
art.
40,
supra
note
57.
2014-2015]
92
Interdisciplinary
Journal of
Human
Rights
Law
[Vol.8:1
tion
of
the
pilot
judgment
procedure.
The
pilot
judgment
procedure
was
not
mentioned
in
Protocol
14
or
the
two
subsequent drafted
protocols
-
Protocol
15
and
Protocol
16,
which
were
opened
for
signature in
June
26,
2013
and
October
2,
2013,
respectively. Protocol
15
will
lead
to
profound
structural
changes,
such
as
a
reduction
in
the time limit
for
admissibility
from
six
to four
months
after
a
final national
decision
and
the
abolition
of
the
parties' right
to
object
to
the
relinquishment
of
cases
to
the
Grand
Chamber.7
8
As
for
Protocol
16,
it
will
extend
the jurisdiction
of
the
Court
to
give
advisory
opinions to the
highest courts
and
tribunals
of
the
states
up-
on
their
request.79
Manifestly,
these
protocols
already
entail
some
struc-
tural
modifications
to
the
Convention
system,
yet
no
reference
to
pilot
judgments
was
made
in
their
texts.
V.
POST-BRONIOWSKI: INSTITUTIONALISATION
OF THE
PILOT
JUDGMENT
PROCEDURE
Following
the
Broniowski
case,
this
procedure
has
been
applied
in
several
other
cases
8o
concerning various
systematic
problems
such
as
in-
human
and
degrading
treatment,
81
the
lack
of
domestic
remedies, the
non-
enforcement
of
court
decisions,
82
the
excessive
length
of proceedings,
83
and
the
right
to
free
elections.
84
In
other
words,
the
pilot
judgment
proce-
dure
that
was
established
as
a
result
of
judicial
creativity
and tailored
for
the
Broniowski
case
has
now
been
applied
in
other
contexts. Although
this
has
served
as
an
interesting testing ground
for
its
viability,
the
institution-
alization
of
the
procedure has
not
been
as
forthcoming.
The
Steering
Committee for
Human
Rights
passed
the
ball
to
the
Court,
and
announced
that
increasing
the
"visibility"
of
the
procedure
"through
reference
in
a
text
explicitly
endorsed
by
the
States
Parties" might
be
considered
"in
the
light
of
the
outcome of
the
Court's
rule-drafting
exercise."
8 5
On
February
21,
2011,
the
Court
finally
inserted
Rule
61
governing
pilot
judgments,
and
the
Committee
of
Ministers
welcomed
this
development.
8 6
Nonetheless,
the
7S
Protocol
No.
15
Amending
the
Convention
for
the
Protection
of
Human
Rights
and
Fundamental
Freedoms,
14
June
2013,
CETS
213.
79
Protocol
No.
16
to
the
Convention
for
the
Protection
of
Human
Rights
and Fundamen-
tal
Freedoms,
2
Oct.
2013,
CETS
214.
So
According
to the
literature, there
are
three
types
of
pilot judgments:
(i)
full-pilot
judgments
which
are
identified
so
by
the
Court
(ii)
quasi-pilot
judgments,
which
address
to
general
measures
without
the
Court
naming
them
as
pilot
judgments
(iii)
other
decisions
ad-
dressing
to
systemic
problems, in
which
the
Court
mentions
structural
problems
in
the rea-
soning
part
rather than
in
the
operative
part.
For
more,
see
Leach
et
al.
supra
note
9.
Sl
Ananyev
and
Others
v.
Russia,
supra
note
37.
82
Olaru
and
Others
v.
Moldova,
App.
No.
476/07,
22539/05,
17911/o8,
13136/07,
Eur.
Ct.
H.R.
(2009-IV).
S3
Ummiihan
Kaplan
v. Turkey,
App.
No.
24240/07,
Eur.
Ct. H.
R.
(2012-II).
S4
Greens
and
M.T.
v.
United
Kingdom,
supra
note
39.
85
The
Committee of
Ministers,
Committee of Experts on
a
Simplified
Procedure
for
Amendment
of Certain Provisions of
the
European
Convention on
Human
Rights
(CDDH),
DH-PS
(2010)003
(8
Oct.
2010).
86
The
European
Court
of
Human
Rights,
Izmir
Declaration,
High
Level
Conference
on
the
Future
of
the
European
Court
of
Human
Rights
(26-27
Apr.
2011),
JUDICIAL
CREATIVITY
IN
THE MAKING
codification
of
the
procedure in
the
Rules
of
Court
did not
necessarily
ren-
der
the
process
more
transparent
or
grant
it
any
legal
basis.
With
regards
to
transparency, there
is
uncertainty
concerning
situations
where
the indi-
vidual
applicant
whose
application
is
adjourned
and
how
he
or
she
can
seek
redress.
According
to
Rule
61(6)
of
the
Rules
of
Court,
"the
Court may
at any
time
examine
an
adjourned
application
where
the
interests
of
the
proper administration
of
justice
so
require."
87
The
Rules
do
not
mention
the
criteria
or
a
timeline
for
reviewing
these
cases.
The
Court
fails
to
clarify
how
frozen
cases
will
be
treated
and what
criteria
will
be
used.
More
fun-
damentally,
the
legal
basis
is
not
solidified
either.
The
Rules
of
Court
regu-
late
the
practice
of
the
Court,
and
facilitate
the
application
of
the
Conven-
tion
without
creating
substantive rights
and
obligations
in
themselves.
The
Court
itself
raised
this point
in
its
case
law
when
referring
to
interim
measures
by noting
that:
"[i]n
the
absence
of
a
provision
in the
Convention
for
interim
measures
an
indication
given
under
Rule
36
cannot
be
consid-
ered
to
give
rise
to
a
binding
obligation
on
Contracting
Parties."
88
The
Steering
Committee
has been
reluctant
to amend
the
Convention,
and
has
instead
been
willing
to
allow
the
Court
to
codify
the
pilot
judgment
procedure.
89
This
could
be
interpreted
as
a
strategy to
present
this
proce-
dure
as
an
entirely procedural
innovation
without
dwelling
upon
the struc-
tural
changes
created
for
the
states
and
the
individual
applicants.
Wildha-
ber
also
alludes
to
this
observation when
discussing
how
giving
erga
om-
nes
effect
to
judgments
would
not
be
a
novel
or
unexpected development.
He
avers:
"the
good
administration
of
justice
requires
that
similar
facts
be
handled
in
the
same
way
and
under
the
same
rules.
In
that
sense,
judg-
ments
have
the
force
of
precedent.
This
follows
from
the
equality before
the
law
and
the
coherence
and
the
consistency of
the
case
law."9o
The
ar-
gument
is
a
straightforward
one
but
it
does
not
resolve
the
dilemma
of
the
legality
and
transparency
deficit
of
this
procedure.
Indeed, the procedure
has secured
political
support,91
expressed
par-
ticularly in
the
Interlaken
Declaration
of
2010
and
the
Brighton
Declara-
tion
of
2012,
which
were
the
products
of
two high
level
conferences
on
the
future
of
the
European
Court
of
Human
Rights.92
In
the
Interlaken
Decla-
ration, the
state
parties
were
called
upon
to
cooperate with
the
Committee
of
Ministers
with regard
to
pilot
judgment
cases,
and
to
undertake
neces-
sary
structural
changes
remedying
the
underlying
structural
or systemic
www.echr.coe.int/Documents/2o11
Izmir
FinalDeclaration
ENG.pdf.
87
Rules
of
Court, rule
61(6),
supra
note
34.
88
Cruz
Varas
and
Others
v.
Sweden,
201
Eur.
Ct.
H.R,
(ser.
A)
(1991)
§
98.
89
DH-PS
(2010)003,
supra
note
85.
90Id.
at
§
89.
91
Philip
Leach,
Helen
Hardman and
Svetlana
Stephenson, Can
the
European
Court's
Pi-
lot
Judgment
Procedure
Help
Resolve
Systemic
Human
Rights
Violations?
Burdov
and
the
Failure
to
Implement
Domestic
Court
Decisions
in
Russia,
HUMAN
RIGHTS
LAW
REVIEW
346
(2010).
92
The
Council
of Europe,
REFORMING
THE
EUROPEAN
CONVENTION
ON
HUMAN
RIGHTS:
INTERLAKEN,
IZMIR,
BRIGHTON
AND
BEYOND
(2014).
2014-2015]
94
Interdisciplinary
Journal of
Human
Rights
Law
[Vol.8:1
problems
giving
rise
to
repetitive
cases.93
Similarly,
the
Brighton
Declara-
tion
"welcome[d]
the
continued
use by
the
Court
of
proactive
measures,
particularly
pilot
judgments,
to
dispose
of
repetitive
violations
in
an
effi-
cient
manner."94
It
is
rather
curious
that,
despite such
political
backing,
the
matter
has been
left
entirely
to
the
Court.
Wildhaber
foreshadowed
this
discrepancy
by
noting
that:
"it
would
certainly
be
most
desirable
if
a
better
legal
basis existed.
It
is
just
foreseea-
ble
that
the
Court
will
hardly
get
such
a
basis in
the
next
years,
and
it
will
be
the
Court's
challenge
to
decide
whether
or
not
to
react on its
own"
back
in
2007.95
More
interestingly,
he
underlines
that
one
of
the
most
crucial
reasons
behind
the
lack
of
such
a
basis
is
the
"complications
that
might en-
sue
from
creating
a
legal
obligation
to
introduce
retroactive
measures."96
However,
this
drawback
was
bypassed by
the
Steering
Committee,
which,
with
reference
to
Article
46
of
the
ECHR,
affirmed
that
the
Court could
in-
troduce
this
procedure
"under
the
existing
terms
of
the
Convention."97
Nevertheless,
as
discussed in
Section
IV,
the
wording of
Article
46
of
the
ECHR
does
not
accommodate an
expansion
of
the
Court's
authority.
Even
though
the
Court
has
not
refrained
from
assessing
the
compatibility
of
the
states'
legislation
with the
Convention
indirectly,
this
has
never
had
a
binding
effect
on
the
state
parties.9
8
With
this
new
procedure,
the
Court
has now
been
granted
afait
accompli
authority
to
review
national
laws
and
policies
rather
than
merely assessing
whether
an
individual's
right
has
been
violated
by
national
authorities.99
VI.
END
RESULT:
THE
PILOT JUDGMENT PROCEDURE
CAUGHT
BETWEEN
SUBSIDIARITY
AND
CONSTITUTIONALISM
Curious
enough,
this
takes
us
back
to
the
issue
of
the
state
parties,
as
the
success
of
the
pilot
judgment
procedure
largely
depends
on
their
will-
ingness
to
cooperate. Antoine
Buyse
defines
the
states'
cooperation
to ad-
dress
broader structural
problems
as
the
"Achilles'
heel" of
the
entire
pro-
cedure.loo
Wildhaber
echoes
this sentiment
by
stating
that
"there
is
indeed
a
problem
with
pilot
judgments, the
basis of
which
cannot
be
found
direct-
ly
in
the
Convention
about
whether
States
will
always
be
willing
to
cooper-
93
The
European
Court of
Human
Rights,
Interlaken
Declaration,
High
Level
Conference
on
the
Future
of
the
European
Court
of
Human
Rights
(19
Feb.
2010),
httns://wcd.coe.int/ViewDoc.isid=l
0106p.
94
The
European
Court
of
Human
Rights,
Brighton
Declaration,
High
Level
Conference
on
the
Future
of
the
European
Court
of
Human
Rights,
(19-20
Apr.
2012),
www.echr.coe.int/Documents/2012
Brighton
FinalDeclaration
ENG.pdf.
95
Wildhaber,
supra
note
10
at
91.
96
Id.
at
70.
97
Id.
98
Garlicki,
supra
note
42
at
182-83.
99
Fryns,
supra
note
9
at
1259.
loo
Antoine
Buyse,
The
Pilot
Judgment
Procedure
at
the
European
Court
of
Human
Rights:
Possibilities
and
Challenges,
NOMIKO VIMA
(GREEK
LAW JOURNAL)
13
(2009).
JUDICIAL
CREATIVITY
IN
THE MAKING
ate
fully."lol
Wildhaber's
concern
is
not
groundless,
as
this
situation
could
arise.
As
the
pilot
judgment
procedure
has
not
secured
the
explicit
consent
of
the
states,
it
might
be difficult
to
seek
their
cooperation
in
implementing
the
measures
prescribed
by
this
procedure within the
required
time.
This
has
already
surfaced
in
some
cases.
In
Broniowski,
the
Polish
government
was
willing
to
negotiate
a
friendly
settlement.
It
introduced
the
necessary
legislative
changes
and paid
the
required
compensation to
victims.
None-
theless,
this
procedure did
not
go
as
smoothly
in
other
cases
such
as
Bur-
dov
v.
Russia
(no.2)
or
Ivanov
v.
Ukraine.102
Anatoliy
Burdov,
a
victim
of
the
Chernobyl
disaster,
complained
to
the
Court
of
the
non-enforcement
of
domestic
court
decisions
that
awarded
him with
social
benefits.103
The
Court
found
that
Article
6
ECHR
(right
to
fair
trial)
and
Article
1
of
Protocol
1 (right
to property) had
been
violated,
and
awarded
Burdov
with
just
satisfaction.104
However, since
this judg-
ment, the
non-enforcement
of
court
decisions
has
continued
to
be
a
signif-
icant
problem, constituting 40
percent
of
all
admissible
applications
that
came before
the
European
Court
by
2007.105
In
2004,
Burdov lodged
a
second application for
the
same
reason, and
the
Court delivered
its
judg-
ment
in
2009.106
It
stated
that
in
addition to granting
remedies
to
the
vic-
tims,
the
Russian
government
must
set up
"an
effective
domestic
remedy
or
combination
of
such
remedies
which
secures
adequate and
sufficient
re-
dress
for
non-enforcement
or
delayed
enforcement
of
domestic
judg-
ments"107
The
government
passed
a
Compensation
Act,
which provided
that
a
compensation
claim
regarding
the
non-enforcement
of
court
deci-
sions
and
the
prolonged
length
of
judicial
proceedings
can
be
brought
be-
fore
domestic
courts.108
This
act
came
into
force
on
May
4,
2010.109
On
September
24,
2010,
the
Court declared
two
applications, namely
Nagovitsyn
and
Nalgiyev
v.
Russia
and
Fakhretdinov
and
Others
v.
Rus-
sia,
inadmissible on
the
grounds
that
the
"remedy adopted
by
Russia
in
re-
sponse
to
pilot
judgments
has
to
be
exhausted."
'n
More
importantly,
these
cases
provided
the
Court with
a
chance
to
review
the
Compensation
Act.
One
of
the
applicants,
Nagovitsyn,
had
already
brought
proceedings
under
the
Compensation Act."'
Although
the
judgment
was
in
his
favor,
he
ar-
gued
that
the compensation
award,
which
was
around
one
thousand
euros,
101
Wildhaber,
supra
note
lo
at
91.
102
Leach
et
al.,
supra
note
9
at
172.
l03
Burdov
v.
Russia,
App.
No.
59498/oo,
Eur.
Ct.
H.R
(2002-I).
104
Id.
at
§
33-42.
loa
Philip
Leach,
Helen
Hardman and
Svetlana
Stephenson,
supra
note
91
at
348.
106
Burdov
v.
Russia
(No.
2)
App.
No.
33509/04,
Eur.
Ct.
H.R
(2009-I).
-7
Id.
at
§6
(operative
part).
108
Action
Plan-Communication from
the
Russian
Federation
Concerning
the
Case
of
Burdov
No.2
against
the
Russian
Federation
(App.
No.
33509/04),
DH -
DD(2o11)625E
(11
Aug.
2011).
109
Id.
at
2.
110
Nagovitsyn
and
Nalgiyev
v.
Russia,
(Decision
on
Admissibility),
App.
No.
27451/09;
6o65o/o9
Eur.
Ct.
H.
R.
(20LO-I)
and
Fakhretdinov
and
Others
v.
Russia,
(Decision
on
Ad-
missibility),
App.
No.
26716/o9;
67576/09; 7698/lO
Eur.
Ct.
H.
R.
(2010-I).
111
Id.
2014-2015]
96
Interdisciplinary
Journal of
Human
Rights
Law
[Vol.8:1
was
insufficient
and
lower
than
European
Court
standards.112
Together
with
Nalgiyev
he
submitted
that
the
new
remedy
"could
-at
best-
lead
to
inadequate
compensation
for
delays
but
could
not
ensure
the
State's
ulti-
mate
compliance
with
the
judgment."113
The
Court's
response
to
this
claim
raised
even
more
concern
about
the
capacity of
this
remedy:
The
Court
acknowledged
that
an issue could
subsequently
arise
concerning
whether
the
new
compensatory remedy
would still
be
effective
in
a
situation
in
which
the
defendant
State
authority
per-
sistently
failed
to
honour the
judgment
debt
notwithstanding
a
compensation
award or
even
repeated
awards
made by
domestic
courts
under
the
Compensation
Act.
However
the
Court
did
not
find
it
appropriate
to
anticipate
such
an event,
nor
to
decide
that
issue
in
theory
at
the
present
stage.114
The
Court avoided
the
thorny
issue
of
measuring
effectiveness
of
the
new
domestic
remedy.
It
effectively
backtracked from
the
constitutional
court
role
it
had
assumed
when
giving
the
Burdov
ruling.115
Moreover,
it
declared
the
applications
inadmissible
on
the basis
of
the
non-exhaustion
of
domestic remedies.
In
other
words,
the
Court
gave
retroactive
effect
to
the
Compensation
Act,
and
declared
the
applications
that
were
made
well
before
the introduction
of
this
act
inadmissible.
11 6
Subsequently,
on
the
grounds
of
this
new
remedy,
the
Court
struck
more
than
800
applications
off
its
list.
117
The
Committee of
Ministers
decided
to
close
the
examination
of
the
new
remedy,
but
continue
examining
other
general
measures.
118
The
ability
of
the
Compensation
Act
to
solve
the
protracted
problem
of
non-enforceability
and procedural
delay
is
questionable.
Both
the
Commit-
tee
of Ministers
and
the
Court
have
signaled
this
and
reiterated
that
setting
up domestic
remedies
does
not
relieve
the
concerned
state
from its
"gen-
eral
obligation
to
solve
structural
problems
underlying violations of
the
Convention."119
Although
Russia
has
shown
a
willingness
to
make legisla-
tive
changes
to
a
certain extent,
it
is
uncertain whether
the state authorities
are
able
to
solve
the problem.
One
thing
is clear:
the
Burdov
saga
might
re-
appear
due
to
shortfalls
in
implementation.
It
is
primarily
the
individual
who
is
at
a
disadvantage,
because
he
or
she
needs
to
move
back
and
forth
between
the
domestic
courts
and
the
European
Court.120
This
is
reminis-
112
Philip
Leach,
Resolving
Systemic
Human
Rights
Violations -Assessinq the
Europe-
an
Court's
Pilot
Judgment
Procedure
in
Samantha
Besson
(ed.),
THE
EUROPEAN
COURT
OF
HUMAN
RIGHTS
AFTER
PROTOCOL
14-
PRELIMINARY
ASSESSMENT
AND
PERSPECTIVES
235
(2011).
113
Nagovitsyn
and
Nalgiyev
v.
Russia,
supra
note
11o.
114
Id.
115
Leach,
supra
note
112
at
236.
116
For
example,
Nagovitsyn
and
Malgiyev's
complaints concerned
judgments
given
by
domestic
courts in
July
2007
and
May
2007
respectively.
17
The
Committee of
Ministers,
Interim
Resolution
CM/ResDH
(2011)293
(2
Dec.
2011).
n8
Id .
ll9The
European
Court
of
Human
Rights,
Factsheet-Pilot
Judgments,
www.echr.coe.int/Documents/FS
Pilot
iudgments
ENG.pdf.
12o
Leach,
Hardman and
Stephenson,
supra
note
91
at
358.
]
JUDICIAL
CREATIVITY
IN
THE MAKING
cent
of
the
myth of
Sisyphus, who
was
condemned
to
rolling
a
boulder
up-
hill
then
watching
it
roll
back
down
for an
eternity.
121
The
Sisyphus
myth
repeated itself
in
Yuriy
Nikolayevich
Ivanov
v.
Ukraine
case,
which can
be
considered
as
a
"failing"
pilot
judgment.122
Yuriy Nikolayevich,
an army
retiree,
complained
to
the
Court because
he
did
not
receive
a
"lump-sum
retirement
payment
and
compensation
for
his
uniform,"
to
which
he
was
entitled.123
The
Court
found
a
violation
of
his
rights to
a
fair
trial,
property,
and
effective
remedy,
and ordered
measures
similar to
the
Burdov
judgment.124
However,
unlike
its
conclusion
in
Bur-
dov, the
Court
decided
to "resume
the
examination
of
applications
raising
similar issues.
'
"125
It
found
Ukraine's
progress
with
respect
to the required
measures unsatisfactory,
with
2500
cases
waiting
before
the
Court
brought
against
Ukraine for
similar
reasons.12
6
The
Committee of Ministers
urged
the
government to introduce
an
effective
domestic
remedy
scheme.127
As
a
response, in
October
2013
the
Ukrainian government
introduced
a
law
to
facilitate
the
execution
of
national court
judgments.12
8
However,
it
is
not
clear
whether
this
measure
will
be
effective, as
the
government
has
not
submitted
an
action
plan
or any
information
regarding
the
implementation
of
individual
measures.129
These
examples
suggest
that
the suitability
of
the
cases
is
conditio
sine
qua
non,
130
since
not
every
systemic
problem lends
itself
to
be
solved
through
this
procedure.
This
procedure
was
clearly
tailored
for
Broniowski-type
cases
in
which
the problem
was
confined
to
an
"identifia-
ble
class
of
citizens,"
as
opposed
to
the
non-implementation
of
court
deci-
sions
that
affect
larger
number
applicants
in
different
contexts.l3
I
Although
the
above-mentioned
cases
revolve
around
a
similar
violation,
namely
the
non-enforceability
of
remedies
regarding
the
right
to property,
we
observe
three
different
outcomes, due
to
the
states'
lack
of
either
willingness
or
ability.
The
Audit
Court
of
Italy
once
commented
that
the
cost
of
letting
all
the
cases
go
to
Strasbourg
would
be
less
than
reforming
the
Italian
judicial
121
Albert
Camus,
THE
MYTH
OF
SISYPHUS
AND
OTHER
ESSAYS
(Justin
O'Brien
trans.,
1955).
122
Yuriy
Nikolayevich
Ivanov
v.
Ukraine,
App.
No.
40450/04,
Eur.
Ct.
H.R.
(2009-V).
123
id.
at
§
8.
124
Id.
125
The
European
Court
of
Human
Rights,
Press
Release:
Court
decides
to
resume
exam-
ination
of
applications
concerning
non-enforcement
of
domestic
decisions
in
Ukraine,
ECHR
086
(2012).
126
Id.
127
The
Committee of
Ministers,
CM/Inf/DH
(2013)11
(7
Feb.
2013).
128
Communication
from
Ukraine
Concerning
the
Case
Yuriy
Nikolayevich
Ivanov
(Pilot
Case)
and the
Zhovner
Group
against
the
Ukraine (Applications
Nos
40450/04
and
56848/oo),
DH-DD
(2013)1165
(29
Oct.
2013).
129
The Meeting
of
the
Ministers' Deputies,
1186th
Meeting,
CM/Del/OJ/DH
(2013)1186/21
(5
Dec.
2013).
130
Costas
Paraskeva,
Returning
the
Protection
of
Human
Rights
to
Where
They
Belong,
At Home,
12
THE
INTERNATIONAL
JOURNAL
OF
HUMAN
RIGHTS
415,
441
(2008).
131
Leach,
Helen
Hardman and
Svetlana
Stephenson,
supra
note
91
at
351.
2014-2015]
98
Interdisciplinary
Journal of
Human
Rights
Law
[Vol.8:1
system.132
One
can easily
imagine
that
this
also
holds
true
for
the
legal
sys-
tems
of
most
Convention
states,
and
in
particular
those
of
the
newly
ac-
ceded
former
communist states.
However,
the
shortfalls
in implementing
the
general
and
individual
measures prescribed
through
pilot
judgments
might
not
only
be
due
to
the
intractable
nature
of
the
problem
at issue.
There
have also
been
cases
where
the
states
showed
clear
resistance
to implementing
these
measures.
One
example
is
Greens
and
M.T.
v.
the
United
Kingdom,
a
case
concerning
the
prisoners'
right to
vote
in the United
Kingdom.133
This
case
was
brought
before
the
ECHR
by
two
prisoners
who
complained
that
they
were
not
allowed
to
vote
in
the European
Parliament
elections
in
June
2009
and
the
general
elections
of
May
2010,
due
to
the
blanket
ban
on
voting
for
convicted
prisoners
in
detention.134
The
Court
found
that
a
blanket
ban
on
voting
for
all
prisoners
regardless
of
(i)
"the
length
of
their
sentence,"
(ii)
"the
nature
and
gravity
of
their
offence,"
and
(iii)
"their
individual circum-
stances"
was
in
violation of
Article
3
of
Protocol
1
(right
to
free
elec-
tions).135
The
Court
also
brought
attention
to the
fact
that
the
government
of
the United
Kingdom
had
not
implemented
the
Court's previous
judg-
ment
on
prisoners'
right to
vote,
Hirst
v.
the
United
Kingdom (No.
2)
of
October
6,
2005.136
The
Court,
then,
decided
to
apply
the
pilot
judgment
procedure
to
which
the government raised
objections.137
The
government
argued
that
the features
of
this
case
rendered it
unfeasible
to
apply
the
pi-
lot
judgment
procedure.13
8
It
further
relied
on
the
fact
that
the
Grand
Chamber
in
the
previous
Hirst
(No.
2)
case
granted
the
state
a
wide
margin
of
appreciation
concerning
this
issue.139
Therefore,
this
case
was
not
suita-
ble
for
the
pilot
judgment
procedure.140
Manifestly,
this
objection
was
a
clear
indication
of
the
resistance
shown
to
the
Court's
intention
to request
general
measures
on
politically sensitive
issues.
However,
the
Court
went
ahead
with
the
decision
and
held
that the
United
Kingdom
must
amend
the
Representation
of
People
Act
of
1983,
which
provides
the blanket
restriction
within
six
months, and
enact
the
re-
quired
legislation
within
the
specified
time
period
that
the
Committee
of
Ministers deems
fit.141
The
government
was given
an
extension
to
imple-
ment
the
measures
within
six
months
after
the
judgment
delivery
of
Scop-
polla
v.
Italy
(No.3)
of
May
22,
2012,142
another
case
concerning
the
pris-
oners'
right
to
vote.143
On
November
22,
2012,
the
government
published
a
132
Wildhaber,
supra
note
10
at
69.
133
Greens
and
M.T.
v.
United Kingdom,
supra
note
38.
134
Id.
at
§
73.
135
Id.
at
§77.
13
6
Hirst
v.
United Kingdom
(No.
2)
[GC],
App.
No.
74025/01,
Eur.
Ct.
H.R
(2005-IX).
137.
Greens
and
M.T.
v.
United
Kingdom,
supra
note
38,
at
§
104
138
Id.
-9Id.
14o
Id.
141
Id.
at
§
6
(operative
part).
142
Scoppolla
v.
Italy
(No.3)
[GC],
App.
No.
126/05, Eur.
Ct.
H.R
(2012).
143
The
European
Court of
Human
Rights,
Press
Release:
Court
adjourns
2,354
prisoners'
JUDICIAL
CREATIVITY
IN
THE MAKING
draft
bill
on
prisoners'
voting
eligibility.144
The
bill
included
proposals
to
ban
voting
rights
for
either
(i)
prisoners
who are
sentenced to
more
than
six
months,
(ii)
or prisoners
who are
sentenced
to
four
years
or
more,
(iii)
or
all
prisoners.
Following
this
development,
the
Committee of Ministers
decided
to resume
its
considerations
with
respect
to the
implementation
of
the
case
at
their
September
2013
meeting.
1
45
On
March
12,
2013,
in
the
light
of
this
decision,
the
Court
adjourned
2,354
similar
cases
against
the
United
Kingdom
waiting
to
be
reviewed
until
September
30,
2013.146
On
October
16,
2013,
the
Supreme
Court
of
the
United
Kingdom
passed
a
judgment.
1
47
This
judgment
upheld
the
1983
Act,
thereby
keeping
the
blanket ban
on
inmates'
voting
rights
in
force.
14
8 Judges unanimously
rejected
the
appeals
of
the
two
whole-life
sentenced
prisoners
who
argued
that
their
right
to
vote
is
derived from
the
ECHR
and European
Union
law.
1
49
One
line
of
reasoning
pursued
by
the
Supreme Court
was
that
im-
prisonment
means
more
than
just
a
deprivation
of
liberty.150
As
Lord
Sumption
stated,
"it
is
a
temporary
reclusion
of
the
prisoner
from
society,
which
carries
with
it
the
loss
of
the
right
to participate in
society's
public,
collective
processes."'
151
Moreover,
the
judges
did
not
refrain
from address-
ing
the
above-mentioned
judgments
of
the
European
Court.
Lord
Sump-
tion
argued
that
the
European
Court
had
provided
a
contradictory reason-
ing:
Accordingly,
the
Strasbourg
Court
has arrived
at
a
very
curious
po-
sition.
It
has
held
that
it
is
open to
a
Convention
state
to
fix
a
min-
imum
threshold
of
gravity,
which
warrants the
disenfranchisement
of
a
convicted
person
...
But
it
has
also
held
that
even
with
the
wide
margin
of
appreciation
allowed
to
Convention
states
in
this
area,
it
is
not
permissible
for
the threshold
for
disenfranchisement
to
correspond
with
the threshold
for
imprisonment.152
Praised
by
David
Cameron,
the
Prime
Minister
of
the
United
Kingdom,
as
"a
great
victory
for
common
sense,"153
the
Supreme
Court
judgment
posed
a
serious
challenge
to
the
foregoing
decision
to
apply
the
pilot
judg-
ment
procedure to
Greens.
This
judgment
took
a
stand
against
the
general
measures
prescribed
by
the
ECtHR,
and
reinforced
the
position
of
the
House of
Commons, which
had
voted
overwhelmingly
in
favor
of
keeping
voting
rights
cases
ECHR
o91
(2013).
144
Id.
145
Id.
146
Id.
147
R
(on
the
application
of
Chester)
(Appellant)
v
Secretary
of
State
for
Justice
(Re-
spondent)
and
McGeoch
(AP)
(Appellant)
v.
The
Lord
President
of
the
Council
and
another
(Respondents)
(Scotland),
UKSC
63
(16
Oct.
2013).
148
Id.
149
Id.
150
Id.
at
§128
151
id.
at
§128.
152 Id.
at
§135.
153 Owen
Bowcott,
Prisoners'
right-to-vote
appeal
rejected
by
Supreme
Court,
THE
GUARDIAN,
16
Oct. 2013.
2014-2015]
100
Interdisciplinary
Journal
of
Human
Rights
Law
[Vol.8:1
the
blanket
ban
on
February
10,
2011.
1
54
As
a
response to
these
develop-
ments,
the
ECtHR
announced
its
decision
to
reopen
2,281
adjourned
cases
brought
against
the
United
Kingdom
concerning
prisoners'
right to
vote
on
December
13,
2013.
1
55
While
this
decision
renders
Greens
a
prima facie
failed
pilot
judgment,
it
remains
to
be
seen
whether
this
will
set
a
prece-
dent
and
other
states
will
follow
suit.
However,
it
is evident
that
the
prob-
lems
regarding
the implementation
of
Greens
have
cast
doubt
on
the
via-
bility
of
the
pilot
judgment
procedure.
While
Greens
concerns
a
legally
straightforward,
but
politically
diffi-
cult
problem,15
6
Burdov
and
Ivanov
signify
a
politically
and
legally
straightforward,
yet
administratively
difficult
problem.
Needless
to
say,
the
heart
of
the
matter
is
an
inability
or
unwillingness
to
implement
the
re-
quired
changes
at
the
national
level
by
Russia,
Ukraine
and
the
United
Kingdom.
It
is
a
crucial
element
affecting
the
feasibility
of
this
procedure.
However
there
are
three other
elements
which
contribute
to
this
outcome
of
failing
pilot
judgments.
The
first
one
is
the
nature
of
these
judgments.
One
can
question
why
the
states, without
giving
formal
consent to the
creation
of
the
pilot
judg-
ment
procedure,
would
feel
pressurized
to
undertake
such
systemic
re-
forms
prescribed
by
means
of
this
procedure.
For
instance,
the
prisoners'
voting
rights
debate
in the United
Kingdom
revolves
around this
issue.
157
During
the
parliamentary
debate
of
February
10,
2011
in
the
House
of
Commons,
Jack
Straw
argued
that
the
ECHR
had
"set
itself
up
as
a
su-
preme court
for Europe with an
ever-widening
remit."15
8
Straw,
the
former
Secretary
of
State
for
Justice,
added
that
this undermines
the
Court's
"own
legitimacy
and
its
potential
effectiveness."159
The
core
of
the
debate
is
not
simply
the
lack
of
implementation
of
the
Court's
judgment,
but
a
more
fundamental
question:
whether
it
is
up
to
the
ECHR
to
decide
the
defacto
minimum
threshold
to
disenfranchise
convicts, while
Parliament
and
the
Supreme
Court
are
against
voting
rights
for
prisoners.1
6
0
Needless
to
say,
this
question
touches
upon the
Court's competence.
As
explained
above,
the
constitutional
dimension
of
the
Court's
role
is
not
grounded
in the
Convention,
and
has
not
been
solidified
by means
of
an
amendment.
On
the
contrary,
the
states'
allegiance lies
with the principle
of
subsidiarity,
which
allows
more
leeway
to
the
national
authorities. 161
Ar-
154
The
House
of
Commons,
Hansard
Debate,
10
Feb.
2011,
C.
502.
The
motion
to
keep
the current ban
was
supported
by
234
parliamentarians
and
opposed
by
22.
155
Owen
Bowcott,
Prisoners damn
well
shouldn't'
be
able
to
vote,
says
David
Cameron,
THE
GUARDIAN,
13
Dec.
2013.
156
The
House
of
Commons
and
House of
Lords
Joint
Committee on
Human
Rights,
Monitoring
the
Government's
Response
to
Human
Rights
Judgments:
Annual
Report
2008,
HC
1078,
2007-o8
§63.
157
Isobel
White
and
Alexander
Home,
Prisoners'
Voting
Rights,
SN/PC/o1764
(12
Aug.
2014).
15
8
Hansard
Debate,
supra
note
155
at
C.
502.
159
Id.
16o
Id.
1
61
The
European
Court
of
Human
Rights,
Interlaken
Follow-up:
Principle of Subsidiari-
ty,
Note
by
the
Jurisconsult
(o8
July
2010),
JUDICIAL
CREATIVITY
IN
THE MAKING
ticle
1
of
Protocol
15
provides
that
the
subsidiarity
principle,
together
with
the
margin
of
appreciation
principle,
is
to
be
added to
the
preamble
of
the
Convention.1
6
2
This
change
indicates
that
states
prefer
a
more limited
scope
when
it
comes
to the
Court's
functions.
The
current
state
of affairs
is
that
there
is
a
discrepancy
between
the
Court's
constitutional
review
pow-
ers
practiced
through
pilot
judgments,
and
the
principle
of
subsidiarity.
The
main
problem
is
that
while
subsidiarity
has formal
support,
the
Court
becoming
a
more
constitutional
court
lacks
this
support.
This
tension
im-
pedes
the
feasibility of
the
pilot
judgment
procedure.
The
second issue
is
the
complications
arising
from
the
dual
role
played
by
the
Court. The Court
has
chosen
to
take
a
more
constitutional court
role
in
some
cases
and
more
deferential
position
in
others.
This
inconsistency
has
repercussions
especially
for
the
individual applicants'
legal
position.
For
example,
in
Burdov,
the
Court
assumed
a
more
constitutional
court
role,
and
demanded
an
effective
domestic
remedy
scheme.1
63
However,
in
Nagovitsyn
and
Nalgiyev,
despite
acknowledging
the
shortcomings
of
this
new
remedy,
the
Court
refrained
from
evaluating
its
effectiveness
and
opt-
ed for
deference.1
6
4 In
other
words,
instead
of
ensuring the remedy
is
in-
deed
effective
or
providing
more feedback,
the
Court
dismissed
the
case.165
It
seems
plausible
that
this
new
remedy
temporarily
shortened
the
Court's
docket,
with
more
than
8oo
cases
struck
out.
Nevertheless,
judging
from
the
complaints
in
Nagovitsyn
and
Nalgiyev
regarding
the
insufficiency
of
the
remedial
measure,
it
is
not
clear
to
what
extent
it
provided
an
effective
remedy
to
the
victims.
Some
of
these
applicants might
need to re-apply
to
the
ECHR
in
the near
future.
This would
lead
to
further
inefficiency.
Third, the
lack of
procedural
transparency
concerning
the
numerous
applications
grouped
under
the
pilot
judgment
procedure
is
problematic.
Pilot
judgments
may
also
take
years
to
be
implemented
with
a
cloud
of
un-
certainty
surrounding the
status
of
the
applications,
which
might
be
"fro-
zen,"
then
sometimes
"re-opened,"
or "struck
out"
without
a
sufficient
guarantee
as
to
whether
the
remedy
is
in
line with
the
ECHR's
stand-
ards.
166
In
this
regard,
it
is
hard
to
determine
whether
the
applicants are
really
better
off
with
this
procedure.
Finally,
the
systematic
delivery
of
in-
dividual
justice
might
be
improbable,
as
Greer
and
Wildhaber
argue.167
However,
to
resolve
this,
launching
the
pilot
judgment
procedure
within
the
individual
justice
paradigm without
openly
acknowledging
or
consoli-
dating
its
constitutional
dimensions
creates "an
unresolved
tension,"'168
which
is
exacerbated
with
this
transparency
deficit.
www.echr.coe.int/Documents/2olo
Interlaken
Follow-up
ENG.pdf.
162
Protocol
No.
15,
art.
1,
supra
note
78.
163
Burdov
v.
Russia,
supra
note
103.
1
64
Nagovitsyn
and
Nalgiyev
v.
Russia,
supra
note
110.
165
Id.
166
Freezing,
re-opening or
striking
off
the
cases
are
various
procedures
that
the
Court
uses
to
deal
with
the
cases
grouped
under
a
pilot
judgment.
167
Greer
and
Wildhaber,
supra
note
5o.
168
Id.
at
474.
2014-2015]
102
Interdisciplinary
Journal
of
Human
Rights
Law
[Vol.8:1
VII.
CONCLUSION
The
pilot
judgment
procedure,
which
was
created
to
address
systemic
problems
entrenched
in the
legal
systems
of
the
state
parties,
has
not
turned
out to
be
the
panacea
that
the
Council
of
Europe
had
been
seeking.
Despite
its intentions,
the procedure
has
raised
serious
questions
related
to
its
legality
and
transparency.
Particularly,
an
assessment
of
its adoption
using
the
principles
of
interpretation
of
the
VCLT
points
out
the
shortfalls
in
its
legal
basis.
Against
the
backdrop
of
this
assessment,
the
legality
issue
goes
beyond
the
conceptual
realm
and
creates
real
implications.
As
far
as
the
current
state
of affairs
is
concerned,
the
pilot
judgment
procedure
carries
the
traits
of
a
constitutional
justice
mechanism
and
is at odds with
the
administra-
tion
of
individual
justice
under
the
light
of
the
subsidiarity
principle.
The
procedure
has
been
instituted
without
the
explicit
consent
of
the
states,
but
its
success relies
on
their
willingness
to
implement
general
measures
that
the
Court
identifies
for
them.
This
incapacitates
the
pilot
judgment
procedure.
While
the
general
measures
required
by
the
Court
might be
im-
plemented without
much
trouble
in
some
cases,
as
was
observed
in
Broniowski,
states
might show
some
resistance to
implementation,
as
seen
in
Burdov,
Ivanov
and
Green.
These
latter
cases
put
the authority
of
the
ECtHR's
judgments
in
jeopardy,
and result
in
ineffective
compensation
for
the
individual applicants,
who are
the
most disadvantaged
party
in
this
sa-
ga.
Now,
a
decade
after
its introduction, the
process
still
suffers
from
the
same
deficiencies.
For
the
pilot
judgment
procedure
to
be more
effective,
there
are
a
few
measures to
be
taken:(i)
clarifying
the
rules,
particularly
those
concerning
the
adjourned
applications,
(ii)
readjusting
the
scope
of
the
procedure,
which can
be
limited to
Broniowski-type
cases,
and
(iii)
securing
the
states'
consent, in the
shape
of
a
formal
amendment
to
the
Convention,
in
a
timely fashion.
As
the
window
of
opportunity
to
redesign
the
pilot
judg-
ment
procedure
is
closing,
it
is
high
time
that
one of
the
most
peculiar
tools
of
judicial
creativity
was
solidified
with
the
active
participation
of
the
state
parties.
This research hasn't been cited in any other publications.
  • supra note 9 at 172. 103 Burdov v. Russia
    • Leach
    Leach et al., supra note 9 at 172. 103 Burdov v. Russia, App. No. 59498/00, Eur. Ct. H.R (2002-I).
  • 108 Action Plan-Communication from the Russian Federation Concerning the Case of Burdov No.2 against the Russian Federation
    108 Action Plan-Communication from the Russian Federation Concerning the Case of Burdov No.2 against the Russian Federation (App. No. 33509/04), DH-DD(2011)625E (11
  • 2010-I) and Fakhretdinov and Others v. Russia, (Decision on Admissibility), App. No. 26716/092010-I)
    • Eur
    • H R Ct
    Eur. Ct. H. R. (2010-I) and Fakhretdinov and Others v. Russia, (Decision on Admissibility), App. No. 26716/09; 67576/09; 7698/10 Eur. Ct. H. R. (2010-I). 111 Id.
  • 129 The Meeting of the Ministers' Deputies, 1186 th Meeting
    128 Communication from Ukraine Concerning the Case Yuriy Nikolayevich Ivanov (Pilot Case) and the Zhovner Group against the Ukraine (Applications Nos 40450/04 and 56848/00), DH-DD (2013)1165 (29 Oct. 2013). 129 The Meeting of the Ministers' Deputies, 1186 th Meeting, CM/Del/OJ/DH (2013)1186/21 (5 Dec. 2013).
  • United Kingdom, supra note 38
    • M T Greens
    Greens and M.T. v. United Kingdom, supra note 38, at § 104
  • Article
    This article seeks to explain and discuss the implementation of the European Convention on Human Rights (ECHR) at national level. It critically evaluates the Recommendations adopted by the Committee of Ministers in May 2004 in an attempt to improve the implementation of the ECHR in the domestic legal orders of the member states of the Council of Europe. In addition, it considers the execution of judgments of the European Court of Human Rights (ECtHR). Finally, this article critically examines the novel ‘pilot judgment procedure’ developed by the ECtHR in order to tackle the phenomenon of ‘repetitive’ or ‘clone’ cases.