Case Watch: Political Will and the Pilot Judgment Procedure

In our "Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

The accumulated backlog of cases at the European Court of Human Rights has been a major concern recently, bringing the question of the necessity of court reforms to the forefront. One of the tools the court has come to rely on in the last couple of years is the pilot judgment procedure, by which the court aims to facilitate the handling of a significant number of repetitive cases that stem from the same underlying problems in national legal systems.

In the framework of this scheme, the respondent state is expected to remedy these systemic problems by implementing certain general measures required by the court, thus resolving the barrage of similar cases at the domestic level, rather than forcing the court to deal with similar cases over and over again.  However, two recent decisions on the pilot judgment procedure underline that new tools in themselves will not provide a solution for the problem of the high number of cases before the court. Even with these innovations, states’ political willingness to properly implement judgments and to effectively address systemic human rights violations at the domestic level is essential in the reduction of the excessive backlog of cases.

The first decision, Yuriy Nikolayevich Ivanov v. Ukraine, issued on October 10, 2009, shows that for all their promise, and the potential for intensive supervision of implementation, pilot judgments remain dependent on States to enforce them in order to fulfill their potential. In accordance with the objectives of the pilot judgment procedure, inYuriy Nikolayevich Ivanov the court ordered Ukraine to introduce an effective remedy for what it identified as structural problems in the country’s legal system (and not specific only to Mr. Ivanov’s case); namely, the prolonged non-enforcement of final domestic judgments and the absence of an effective domestic remedy to deal with this situation (paras. 73-75). The court also obligated Ukraine to provide such redress to all the applicants whose claims raise the same issues and have been pending before the court (para. 99).

Furthermore, in the hope that Ukraine would sort out these issues at the domestic level, the court adjourned proceedings in the case of hundreds of applications—involving those already communicated to the government—brought on these same grounds for one year from the date the judgment became final (paras. 96-98). However, despite the fact that the Committee of Ministers supervised the enforcement of the pilot judgment in the framework of the so-called enhanced procedure, Ukraine failed to fully implement the general measures by the deadline set by the court. As a result, on February 28, 2012, the court decided to resume the examination of those approximately 2000 adjudicated and pending cases that were brought on similar grounds. The failure of full implementation of the general measures serves as a timely reminder of the indispensability of the respondent state’s willingness to enforce pilot judgments.

Although the court undoubtedly hit a political snag due to Ukraine’s refusal to move any quicker than at a glacial pace on the adoption of the measures necessitated by Yuriy Nikolayevich Ivanov, it does not appear dispirited about the pilot judgment procedure itself. This is evidenced by another pilot judgment, Ümmühan Kaplan v. Turkey, which was handed down on March 20, 2012, just three weeks after the court’s decision to resume the consideration of the Ukrainian cases. The case, which also concerned the length of domestic proceedings and the lack of effective remedy, was started by the applicant’s father back in 1970 and is still pending before the land tribunal in Turkey. Coming to parallel conclusions to those found in the Ukrainian decision, the court noted that the approximately 3000 Turkish applications that are similar to the Ümmühan Kaplan case arose as a result of a structural problem in Turkey (para. 63). Consequently, similarly to Ukraine, the court requested the implementation of certain general measures of the Turkish government to remedy this situation (para. 72).

These parallels notwithstanding, the court appears to have learned from some of the pilot judgment scheme’s shortcomings that surfaced in the aftermath of the Yuriy Nikolayevich Ivanov ruling. Unlike theYuriy Nikolayevich Ivanov judgment, the Ümmühan Kaplan decision does not adjourn the consideration of cases already communicated to the Turkish government (para. 77). This is noteworthy, since by maintaining the normal procedure with regard to communicated cases, the court might actually manage to kill two birds with one stone. Firstly, through the continued adjudication of communicated cases the court will be able to keep up the pressure on the government, reminding it of its duties in the form of new judgments if needed. Secondly, as adjournment does not affect communicated cases, it is not expected to cause disproportionately long delays in the adjudication of these cases. As a result, the court might have remedied both major problems the non-enforcement of the Yuriy Nikolayevich Ivanov judgment shed light on: its inability to influence the respondent state’s political will while cases are adjourned and the potential futility of delaying the adjudication of long-pending cases. In this regard, Ümmühan Kaplan is reminiscent of Ananyev v. Russia, handed down this year as well, indicating that the court is increasingly considering the non-adjournment of pending cases as an option within the pilot judgment procedure.

Ümmühan Kaplan, the first pilot judgment the court handed down after being forced to resume the consideration of cases adjourned by theYuriy Nikolayevich Ivanov decision, is evidence for the court’s determination to keep relying on this scheme and to also improve it along the way. Time will tell how or whether Turkey will eventually comply with the general measures obligated by Ümmühan Kaplan. One thing is for certain, though: no matter what reforms the court has gone through or what new tools it has acquired in recent years, it is still the respondent state’s political willingness that the enforcement of court decisions is ultimately dependent upon. Therefore, while some reforms may be welcomed, their focus should be on the domestic implementation process than the operation of the court itself.